PENAL CODE, 426, SUB. 2-PROHIBITING GETTING ON A TRAIN IN MOTION
DOES NOT APPLY TO BONA FIDE PASSENGER.
The statute (Penal Code, § 426, subd. 2) making it a misdemeanor
for any person to get "on any car or train while in motion for the
purpose of obtaining transportation thereon as a passenger" was not
intended to apply to the acts of a person who, intending in good faith
to become a passenger, gets on a car while in motion, but to a person
endeavoring to obtain transportation as a passenger by surreptitious
means and not intending to comply with the rules of the railroad com-
pany. East v. Brooklyn H. R. R. Co., 470.
(2). MISDEMEANOR-PETIT LARCENY CHARGED AS SECOND OFFENSE.
Although petit larceny when charged as a second offense is punish-
able more severely than the first offense, and although the imprison-
ment may exceed one year, the crime is not thereby made a felony.
People v. Cosgriff, 149.
(3). SAME-JURISDICTION OF POLICE JUSTICE OF ROCHESTER.
As the police justice of the city of Rochester has exclusive jurisdic-
tion in the first instance to try all offenses committed within the city
of which courts of Special Sessions have exclusive jurisdiction and also
has exclusive jurisdiction in the first instance to try any other mis-
demeanor committed in the city, it is the duty of said magistrate to
try one charged with petit larceny as a second offense, for it is a mis-
demeanor, and he is without power to commit the accused to the
sheriff to await the action of the grand jury. Id.
The section of the city charter providing that said police justice can-
not impose an imprisonment exceeding one year for a misdemeanor is
qualified by the words "except where a different punishment is by law
prescribed for such offense," and, hence, he has power to impose the
statutory penalty for petit larceny as a second offense although the
imprisonment may exceed one year. Nor is he required to commit the
prisoner to State's prison so as to make the crime a felony, for he may
sentence the accused to a penitentiary. Id.
(5) SAME RIGHTS OF ONE CHARGED WITH PETIT LARCENY AS SECOND
OFFENSE.
One charged with petit larceny as a second offense has a right to be
tried for a misdemeanor rather than for a felony and to imprisonment
in a penitentiary rather than in a State's prison, for a conviction for
a felony is more serious than for a misdemeanor, as it involves the loss
of political rights., etc. Id.
(2). MANSLAUGHTER-CORPORATION CANNOT BE GUILTY OF.
A corporation may in many instances be charged criminally with
the unlawful purposes and motives of agents through whom it con-
ducts its business, while they are acting in its behalf, so long as they
act within the scope of their authority, real or apparent. People v.
Rochester R. & L. Co., 307.
(3). SAME-PENAL CODE, SECTION 179.
A definition of certain forms of manslaughter might be formulated
which would be applicable to a corporation and make it criminally
liable for various acts of misfeasance and nonfeasance when causing
death. The present Penal Code, however, section 179, defines homicide
as the killing of one human being by the act, procurement or omis-
sion of another," meaning another human being, and subdivision 3 of
section 193 makes "such homicide" manslaughter in the second de-
gree under certain circumstances. Under these definitions a corpo-
ration cannot be guilty of manslaughter. Id.
(1). SUFFICIENCY OF EVIDENCE,
Evidence on appeal by defendant from conviction of the crime of
murder in the first degree examined. Held, while no person saw the
defendant in the actual commission of the homicide, the evidence is
such in connection with all of the surrounding circumstances, that the
inference of her guilt is irresistible. It was clearly a deliberate and
intentional act, with no circumstances that point to justification or
that mitigate its heinousness. People v. Farmer, 216.
(2). SAME-DEFENSE OF INSANITY.
The question whether the defendant at the time of the homicide was
laboring under such a defect of reason as not to know the nature and
quality of the act, or to appreciate the wrong of willfully taking
another's life, is like every other question of fact to be determined by
the jury. Unless the verdict of the jury is against the weight of the
evidence, the conclusion against defendant upon that as well as upon
every other issue in the case must be sustained. Id.
(3). SAME QUESTION FOR JURY.
The jury is not required to pass upon the quality and strength of
intellect or moral perceptions of a person on trial upon the question of
insanity, except as such questions affect the general question of the
defendant's knowledge, at the time of the homicide, of the nature and
quality of the act. A weak or even a disordered mind is not excused
from the consequences of crime. Id.
(4). SAME-CODE CRIM. PRO., SEC. 235-" ANOTHER GRAND JURY."
A grand jury drawn by virtue of section 235 of the Code of Criminal
Procedure, which provides: "If a crime be committed during the sit-
ting of the court, after the discharge of the grand jury, the court may,
in its discretion, direct an order to be entered that the sheriff summon
another grand jury, and the same shall be summoned in the manner
prescribed for grand juries in general," is "another grand jury." The
provisions of the Code of Criminal Procedure relating to the number of
days that the order shall be entered in the county clerk's office prior to
the term for which the jury is ordered, and also the statutory provi
sions relating to the number of days that the jury shall be drawn
prior to the holding of the term for which they are drawn are inap-
plicable. Id.
(5). SAME-CODE CRIM. PRO., SEC. 313.
The Code of Criminal Procedure (section 313) provides the grounds
on which an indictment may be set aside on motion. Where no ob-
jection was made to the panel of grand jurors for the causes pre-
scribed by section 238 of said Code, the defendant's constitutional
rights are not invaded by the denial of a motion to set aside an indict-
ment when the motion was made subsequent to the discharge of the
grand jury, and related to the indictment and work of the grand jury
and not to the grand jury itself. Id.
(6). SAME-CODE CRIM. PRO., SEC. 835.
Defendant, by an admission to another of what she had stated to an
attorney relating to the transaction, waived the protection of section
835, at least to the extent of such voluntary disclosure. That section
was not intended to prohibit the disclosure of a communication so far
as such communication is necessary for a public officer to act in his
official capacity; further, the seal of personal confidence cannot be used
to cover a transaction which is in itself a crime. Id.
(7). SAME-REQUEST FOR PRELIMINARY EXAMINATION OF WITNESS AS TO
CONFESSION.
A request for the preliminary examination of a witness before he
testifies to confessions alleged to have been made by a defendant, is too
late after the confessions had already been heard by the jury and it
appeared that they were made without threats or promises of any
kind. Id.
REJECTION OF HABEAS CORPUS EVIDENCE.
The rejection of evidence does not furnish a ground for reversal of
the judgment of death, when it is apparent that no harm resulted to
the defendant by reason thereof. When the evidence excluded bore
only upon the defendant's motive for committing the crime, and its
effect upon that question was slight, and the crime fully proven, the
evidence being practically undisputed and altogether conclusive, the
nature and extent of the motive is unimportant. Id.
(9). SAME-EVIDENCE-TESTIMONY AS TO FINDING OF WEAPON AT PLACE
WHERE DEFENDANT HAD BEEN, SHORTLY AFTER HOMICIDE-WHEN
PROPERLY ADMITTED.
It is not erroneous, upon the trial of a defendant charged with mur-
der in the first degree, committed by stabbing the decedent with a
knife, to admit evidence that about two weeks after the commission of
the crime a knife was found, through the instrumentality of a friend
of the defendant, at a place where the latter is admitted to have been
the day after the crime was committed, which knife was disposed of by
the friend in such a way as to render its recovery impossible, where
the knife was shown to have corresponded in pattern and character
with one which several witnesses had actually seen in the hands of the
defendant at different times prior to the murder. People v. Del
Vermo, 1.
(10). SAME-NOT ERRONEOUS TO PERMIT MODEL OF KNIFE, BY WHICH
CRIME WAS ALLEGED TO HAVE BEEN COMMITTED, TO BE USED AS Ex-
HIBIT ON TRIAL.
Nor is it erroneous to permit a knife to be used as an exhibit and
as a model of the knife alleged to have been owned and possessed by
the defendant, where its similarity to the original was vouched for by
several witnesses, who swore that it was like the knife which they had
seen in the hands of the defendant, and a witness, who testified to the
finding of a knife at a place where defendant had been shortly after
the homicide, declared that the knife which he found was similar to
the exhibit.
(11). SAME-DEFENSE OF INSANITY-" DEFECT IN REASON."
A person is not excused from criminal liability as an insane person
except upon proof that at the time of committing the alleged criminal
act he was laboring under a defect of reason which, furthermore, must
have been such as to render him either ignorant of the nature and
quality of the act he was doing, or ignorant that the act was wrong.
This is the only test of responsibility known to the law of this State.
The phrase
"defect of reason" in the statute means disease of the
mind, and a person who has committed an act otherwise criminal may
not be relieved from the consequences of that act where insanity is
relied upon as the sole defense, unless at the time of the commission
of the act he was suffering from some disease of the mind. People v.
Carlon, 282.
Defendant was asked on re-direct examination, "Did you think you
were doing wrong when you shot your mother?" He answered, "No."
This was followed by a ruling sustaining an objection to the question
and this was again followed by a like ruling upon substantially the
same question. The answer to the first question was not stricken out
nor was the jury directed to disregard it. Held, that defendant had
the full benefit of the statement that it was desired to elicit on that
subject and the defendant was not harmed by the ruling. Id.
EXCLAMATIONS-STATEMENT OF DECEASED,
MADE IMMEDIATELY AFTER INJURY-WHEN ADMISSIBLE IN EVI-
Evidence of a statement of the deceased, made immediately after he
was wounded, to the effect that the defendant had stabbed him, is ad-
missible, where the declaration appears to have been made impulsively
and as an instinctive outcome of the act, even though subsequent in
time to the infliction of the injury. Under the exception to the gen-
eral rule excluding hearsay evidence, proof of such exclamations is
admissible if they are spontaneously expressive of the injured person's
observation of the effects of a startling occurrence and the utterance
is made within such limit of time as presumably to preclude fabrica-
tion. People v. Del Vermo, 1.
(14). SAME-DYING DECLARATIONS-PRELIMINARY PROOF SUFFICIENT TO
JUSTIFY THEIR RECEPTION IN EVIDENCE.
Statements made by the deceased, as to the identity of his assailant,
are properly admitted in evidence as dying declarations, where it
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