author: Andrews, J.

text:
    The People of the State of New York, Respondent, v. Francisco Caruso, Appellant.
    Crimes — murder in first degree —■ trial —• evidence — powers and duties of Court of Appeals on review of conviction — harmful appeals to sympathy or prejudice — erroneous reception of immaterial testimony — incompetent questions asked by prosecuting attorney — erroneous reception of immaterial expert testimony ■— insufficiency of evidence to sustain finding of deliberation and premeditation.
    1. In reviewing convictions for murder in the first degree, the Court of Appeals has broad powers. It is to see that justice is done both to the accused and to the State. If guilt is clear, errors or instances of unfair conduct by the prosecutor may sometimes be ignored. The greater the doubt of guilt, however, the more likely are errors to affect the substantial rights of the accused. The more likely are appeals to sympathy or passion or prejudice to influence the jury. It is the duty of the court, not only to weigh the evidence, but to grant a new trial if it be believed that justice requires such a course.
    2. Where, upon trial of an indictment for murder in the first degree, accusing defendant of killing the attending physician, after the death of his child, facts necessary to constitute the crime, if they exist, must be inferred from the admissions of the accused and the real issue is as to Ms state of mind at the time of the homicide, whether he formed the intent to kill and if so, whether the killing was the result of premeditation and deliberation, the issue must be decided by the jury in a judicial temper and appeals to sympathy or prejudice can be but harmful.
    3. It was, therefore, reversible error to permit the widow of the deceased to give testimony wMch had no materiality upon the issues before the jury and wMch clearly constituted an appeal to prejudice. Nor can the error be overlooked where the object of the prosecution is emphasized by questions asked the defendant wMch were plainly, incompetent.
    4. It was also material error to receive testimony by an expert that the medical treatment of the child was correct and the doses not excessive. The belief of the accused as to these facts was the question, not whether Ms belief was mistaken. Nor did tMs testimony tend to corroborate the demai of another witness that he had ever told the accused that the dose was too large.
    6. In any event conviction of murder in the first degree is not justified by evidence, wMch though sufficient to sustain a finding of intent to kill and showing sufficient time for deliberation and premeditation, shows that the attack was the instant effect of impulse induced by a supposed laugh on the part of the victim when told that the child was dead. Nor does the fact that the stabbing followed the beginning of the attack by some time affect tMs conclusion. It was all one transaction under the peculiar facts of this ease. If the assault was not deliberated or premeditated then neither was the infliction of the fatal wound.
    (Argued October 27, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Kings County Court, rendered April 18, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Walter H. Pollak, Charles A. Schneider, Howard Hilton Spellman, Ruth I. Wilson and Lewis A. Pinkussohn for appellant.
    The People failed to establish a prima facie case of murder in the first degree. (People v. Ingraham, 232 N. Y. 245; People v. Mongano, 1 N. Y. Crim. Rep. 41; People v. Barberi, 149 N. Y. 256; State v. Jarrott, 23 N. C. 76; People v. Raffo, 180 N. Y. 434; People v. Soper, 243 N. Y. 320.) The verdict was against the weight of the evidence. (People v. Creasy, 236 N. Y. 205; Noah
      v. Bowery Sav. Bank, 225 N. Y. 284.) The district attorney, over objections and exceptions, was allowed to prove that the deceased left a young widow and a small baby. The district attorney was permitted to expand this evidence and to present to the jury an affecting picture of the once united family whom Caruso had deprived of a husband and father. The reception of this evidence, irrelevant and in its effect inevitably inflammatory, was in the circumstances of this case error so prejudicial as to require reversal, the more clearly in view of the use the district attorney made of this evidence in his summing up. (People v. Slover, 232 N. Y. 264; People v. Mulford, 232 N. Y. 530; People v. Koerner, 154 N. Y. 355; People v. Maine, 166 N. Y. 50; People v. Gerdvine, 210 N. Y. 184; People v. Ohanian, 245 N. Y. 227; People v. McGraw, 66 App. Div. 372; People v. Purtell, 243 N. Y. 273; People v. Colantone, 243 N. Y. 134; People v. Esposito, 224 N. Y. 370; People v. Wilcox, 245 N. Y. 404; People v. Fielding, 158 N. Y. 542.) The court erred in receiving evidence that the treatment given the Caruso child was correct and that Dr. Péndola had been diligent, facts unknown to the defendant and having no bearing on his state of mind. (Cole’s Trial, 7 Abb. Pr. [N. S.] 321; Rayland v. State, 125 Ala. 12; People v. Harris, 209 N. Y. 70; People v. Soper, 243 N. Y. 320; People v. Sing, 242 N. Y. 419.) Prejudicial error was committed by the district attorney in putting to the defendant questions concerning citizenship and union membership. (People v. Conrow, 200 N. Y. 356; People v. Esposito, 224 N. Y. 370.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellant’s guilt was proved beyond a reasonable doubt. Premeditation and deliberation were abundantly established. (People v. Ferraro, 161 N. Y. 365; People v. Schmidt, 168 N. Y. 568; People v. Koenig, 180 N. Y. 155; People v. Breen, 181 N. Y. 493; People v. Gilbert, 199 N. Y. 10; People v. Serimarco, 202 N. Y. 225; People v. Guadagnino, 233 N. Y. 344.) The testimony of the wife of the deceased as to his conversation with her on the night before the homicide was not incompetent. (People v. De Simone, 225 N. Y. 261; People v. Rodawald, 177 N. Y. 408.) The testimony of Dr. Began, the expert in contagious diseases, was relevant. (People v. Harris, 209 N. Y. 49.)
   Andrews, J.

This judgment must be reversed.

In reviewing convictions for murder in the first degree, the Court of Appeals has broad powers. It is to see that justice is done both to the accused and to the State. If guilt is clear, errors, or instances of unfair conduct by the prosecutor may sometimes be ignored. The greater the doubt of guilt, however, the more likely are errors to affect the substantial rights of the accused. The more likely are appeals to sympathy or passion or prejudice to influence the jury. It is our duty, not only to weigh the evidence, but to grant a new trial if we believe justice requires such a course.

Francesco Caruso, an illiterate Italian, thirty-five years old, came to this country about 1911. He worked ¿s a laborer, and in the early part of 1927 was living with his wife and six small children in an apartment in Brooklyn. On Friday, February 11th, one of these children, a boy of six, was ill with a sore throat. That day and the next he treated the boy with remedies bought at a drug store. The child grew worse and at ten o’clock of the night of the 12th he sent for a Doctor Péndola, who had been recommended to him, but with whom he-was not acquainted.

What followed depends upon a statement made by Caruso and upon his testimony on the stand. Any proper inferences may be drawn therefrom. The belief that what he said was false, however, or any reasoning based upon his failure to call friendly witnesses, will not supply the want of affirmative testimony of the facts necessary to constitute the crime. Those facts if they exist must be inferred from his own admissions.

Sometime between ten-thirty and eleven in the evening Dr. Péndola arrived. The child had diphtheria. Caruso was sent out to buy some anti-toxin, and when he returned the doctor administered it. He then gave Caruso another prescription with instructions as to its use and left, promising to return in the morning.

Caruso watched the child all night, giving remedies every half hour. “About four o’clock in the morning,” he testified, “ my child was standing up to the bed, and asked me to, he says, ‘ Papa ’ he said ‘1 am dying.’ I say that time, I said, ‘ You don’t die.’ I said ‘ I will help you every time.’ The same time that child he will be crazy — look like crazy, that time — don’t want to stay any more inside. All I can do, I keep my child in my arms, and I held him in my arms from four o’clock until eight o’clock in the morning. After eight o’clock in the morning the poor child getting worse — the poor child in the morning he was ”— (Slight interruption in the testimony while the defendant apparently stops to overcome his emotion.) “ The poor child that time, and he was asking me, ‘ Papa,’ he said, ‘ I want to go and sleep.’

“ So I said, ‘All right, Giovie, I will put you in the sleep.’ I take my Giovie and I put him in the bed, and he started to sleep, to wait until the doctor came, and the doctor he never carne. I waited from ten o’clock, the doctor he never came.” Then after trying in vain to get in touch with the doctor he sent for an ambulance from a drug store. “ When I go home I seen my child is got up to the bed that time, and he says to me, ‘ Papa, I want to come with you.’ I take my child again up in my arms and I make him look to the back yard to the window. He looked around the yard about a couple of minutes and after, when he looked around, he says to me, ‘ Papa, I want to go to sleep again.-’

“ I said, ‘All right, Giovie, I will put you in the sleep.’ I put my child on the bed. About a few seconds my child is on the bed, my child says to me, he says, ‘ Papa, I want to go to the toilet.’

“ I said, ‘All right, Giovie, I will take you to the toilet.’ So I was trying to pick up the child and make him, go to the toilet, when I held that child I felt that leg — that child started to shake up in my arms. My wife know about better than me — I cannot see good myself in the face, so she tell what kind of shakes he do, and she has told me, she says, ‘ Listen, Frank, why, the- child has died already.’

“ I said, ‘All right, you don’t cry. No harm, because you make the child scared.’ That time I go right away and put the child on the bed. When I put the child, before I put my hand to the pillow, my child said to me,

‘ Good-bye, Papa, I am going already.’

“ So that time I put my hands to my head — I said, ‘ That child is dead. I don’t know what I am going to do myself now.’ That time I never said nothing, because I said, ‘ Jesus, my child is dead now. Nobody will get their hands on my child.’ ”

About twelve o’clock Dr. Péndola arrived. The child had been dead for some time. He was told and then Caruso says the doctor laughed and he “ lost his head.” This seems incredible. Yet Caruso apparently believed it for his testimony on the stand is a repetition of the same charge made in his statement that same night, before it is likely that a man of Caruso’s mentality would be preparing a false defense. The probability is there was, from one cause or another, some twitching .of the facial muscles that might be mistaken for a smile.

Besides the delay of the doctor and the smile was another circumstance which, if true, would exasperate Caruso. He says,' and again this appears in the statement as well as in his testimony on the trial, that when he was buying the anti-toxin the druggist told him that the dose was too large for a child of the age of his son. This he told the doctor. The latter was indignant and paid no heed to the warning. The druggist denied any such conversation and apparently the dose was proper. But it seems probable that something occurred that left on Caruso’s mind the impression that the death of his child was caused by malpractice. At least, immediately after the death, he told an ambulance surgeon that Dr. Péndola had killed his child by an injection; and also complained of his delay in not coming that morning. And within a short time he made the same charge to others.

Then followed some talk. Caruso accused the doctor of killing his child. The doctor denied it. Caruso attacked him in anger, choked him until he fell to the floor, then went to a closet ten or twelve feet away, took a knife and stabbed him twice in the throat, so killing him. Caruso then took his family to the janitor’s apartment downstairs, and himself went to his brother’s house on Staten Island where he was arrested that night. He made no attempt whatever to conceal the facts of the homicide, and his departure cannot fairly be viewed as a flight, indicating consciousness of guilt.

The case for the People was simple. Formal identification of the dead body was required. That Caruso committed a homicide, neither excusable nor justifiable, was abundantly shown by his own statement and indeed was not denied. The real issue was as to state of mind of the defendant, whether he formed the intent to kill Dr. Péndola, and if so whether the killing was the result of premeditation and deliberation. What Caruso in fact believed and thought, what he had in mind at the time of the homicide, is the issue — not whether his beliefs were justified. And the jury, horrified at the conceded brutality of his acts, are still to decide this issue in a judicial temper. Appeals to sympathy or prejudice can but be harmful.

Mrs. Péndola, the widow of the deceased, was a young woman, placed upon the stand by the State. The right to use her as a witness for a proper purpose is not questioned, notwithstanding the natural sympathy her presence would arouse. But she knew nothing of the circumstances of the crime. She might have been asked as to the identity of the deceased, although he could be identified by others. She might give any other material evidence notwithstanding any influence her presence might have upon the jury. Mrs. Péndola was not called for any such purpose. She was allowed to say she had been married for eighteen months, that she had one child, six months old, that her husband was a medical graduate; she explained why his call on Caruso was delayed on Sunday, the 13th; she gave conversations with the doctor when he received the telephone call from Caruso Saturday night and again after his return; she told how he sat on his baby’s crib and sang her to sleep. All this had no materiality upon the issues before the jury. The object of the State is clear. Although, doubtless, the result of well intentioned though misguided zeal,” it was an unseemly and unsafe ” appeal to prejudice. Nor here can we overlook it as probably unheeded. And the object of the prosecution is emphasized by questions, ruled out it is true, as to whether the defendant was a citizen or had applied for naturalization. They were so plainly incompetent, it cannot be believed they were asked in good faith.

Testimony was given by an expert that the treatment of the child was correct and the doses of anti-toxin not excessive. The belief of Caruso as to these facts was the question, not whether his belief was mistaken. Nor did this testimony tend to corroborate the denial of the druggist that he had ever told Caruso that the dose was too large. (People v. Harris, 209 N. Y. 70.)

But passing the two questions already discussed, which would under the circumstances of this case require a reversal, there is also a fundamental reason requiring a new trial. Conviction here of murder in the first degree is not justified by the weight of the evidence. The jury might find that the intent to kill existed. While in his testimony on the stand Caruso denies such an intent and says that in his rage he did not know whát he was doing, yet in his statement he expressly admits his intent to kill, and the inference that the intent existed might also be drawn from the two wounds in the neck inflicted with a large knife.

But was there premeditation and deliberation? This seems to have been the question which troubled the jury. They considered their verdict for six horns — twice returning for definitions of homicide and of deliberation and premeditation. Time to deliberate and premeditate there clearly was. Caruso might have done so. In fact, however, did he?

Until the Saturday evening Caruso had never met Dr. Péndola. Nothing occurred at that interview that furnished any motive for murder. Then came nervous strain and anxiety culminating in grief, deep and genuine, for the death of his child. Brooding over his loss, blaming the doctor for his delay in making the promised visit, believing he had killed the boy by his treatment, the doctor finally enters. And when told of the child’s death he appears to laugh. This added to his supposed injuries would fully account for the gust of anger that Caruso says he felt. Then came the struggle and the homicide.

As has been said, Caruso had the time to deliberate, to make a choice whether to kill or not to kill — to overcome hesitation and doubt — to form a definite purpose. And where sufficient time exists very often the circumstances surrounding the homicide justify — indeed require — the necessary inference. Not here, however. No plan to kill is shown, no intention of violence when the doctor arrived — only grief and resentment. Not until the supposed laugh did the assault begin. If the defendant inflicted the wound in a sudden transport of passion, excited by what the deceased then said and by the preceding events which, for the time, disturbed her reasoning faculties and deprived her of the capacity to reflect, or while under the influence of some sudden and uncontrollable emotion excited by the final culmination of her misfortunes, as indicated by the train of events which have been related, the act did not constitute murder in the first degree. Deliberation and premeditation imply the capacity at the time to think and reflect, sufficient volition to make a choice, and by the use of these powers, to refrain from doing a wrongful act.” (People v. Barberi, 149 N. Y. 256.) When the supposed laugh came there was apparent cause for excitement and anger. There was enough to indicate hot blood and unreflecting action. There was immediate provocation. (People v. Ferraro, 161 N. Y. 365, 375.) The attack seems to have been the instant effect of impulse. Nor does the fact that the stabbing followed the beginning of the attack by some time affect this conclusion. It was all one transaction under the peculiar facts of this case. If the assault was not deliberated or premeditated then neither was the infliction of the fatal wound.

With due consideration of all the facts presented there is insufficient evidence to justify a conviction of murder in the first degree. Doubtless, on- this record the defendant might be convicted of some crime, either murder in the second degree, or if his testimony on the stand is accepted, manslaughter in the first degree. Either verdict might be sustained on the facts. Not the one actually rendered.

The judgment of conviction should be reversed and a new trial ordered.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Garnett M. Roberts, Respondent, v. Philip F. Donohue et al., Appellants.
    Pleading — summary judgment — action on bond — where answer raises issue as to amount due, summary judgment is improper.
    Rule 113 of the Rules of Civil Practice provides for summary judgment in an action to recover a debt or a liquidated demand arising on contract or on a judgment for a stated sum where, on the papers presented to the court, it is possible to calculate the amount of the judgment to which the plaintiff is entitled. No further proof must be required. An order for summary judgment should, therefore, be denied in an action to recover on a bond given to secure payments of alimony, where the answer raises a question as to whether defendant is hable for the full amount sued for. Whether, under such circumstances, the separate defense is sufficient in law on its face, is immaterial.

      Roberts v. Donohue, 221 App. Div. 348, modified.
    (Argued October 6, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 29, 1927, which reversed an order of Special Term granting a motion by defendant for judgment on the pleadings and remitted the matter to the Special Term to determine the amount of alimony due and enter summary judgment in favor of plaintiff therefor.
    The following questions were certified:
    “1. Does the complaint herein state facts sufficient to constitute a cause of action?
    “ 2. Is the separate defense contained in the answer sufficient in law upon the face thereof?
    “ 3. Upon the papers on which the order of the Special Term appealed from was granted, was plaintiff entitled to an order granting her motion for summary judgment?”

      Frank W. Chambers and Henry Siegrist for appellants.
    Upon the papers before the court, the plaintiff was not entitled to an order granting her motion to strike out the answer and for summary judgment in her favor, and the third question certified should be answered in the negative. (Smith v. Molleson, 148 N. Y. 241; Catskill National Bank v. Dumary, 206 N. Y. 550; Bank of Italy v. Mechanics Nat. Bank, 236 N. Y. 106; American Rattan & Reed Mfg. Co. v. Cone, 198 App. Div. 843.)

      John B. Doyle for respondent.
    The facts alleged in the complaint constitute a complete cause of action showing that under the right construction or interpretation of their undertaking defendants were obligated to pay the plaintiff $4,500 at the commencement of this action. (Gamble v. Cuneo, 21 App. Div. 413; 162 N. Y. 634; Smith v. Molleson, 148 N. Y. 241; Sachs v. American Surety Co., 72 App. Div. 60; 177 N. Y. 551; Everson v. Gere, 122 N. Y. 290; Catskill Nat. Bank v. Dumary, 206 N. Y. 550.) Upon the papers at Special Term plaintiff was entitled to an order granting her motion for summary judgment. (General Investment Co. v. Interborough Rapid Transit Co., 235 N. Y. 133; Gravenhorst v. Zimmerman, 236 N. Y. 22; Curry v. Mackenzie, 239 N. Y. 267; O’Meara Co. v. National Park Bank, 239 N. Y. 386.)
   Andrews, J.

The Appellate Division has reversed an order of the Special Term granting judgment to the defendants on the pleadings, the motion having been made under Civil Practice Act, section 277. Its action was proper. On its face the complaint states a cause of action.

It has also reversed a portion of the same order denying a motion by the plaintiff upon affidavits and pleadings to strike out the answer and for summary judgment under rule 113, and has granted an order remitting the matter to the Special Term to determine the amount due the plaintiff, with directions for summary judgment in her favor for the amount so found. From the papers submitted it appears that on June 30, 1925, the plaintiff obtained a decree of separation from her husband. Alimony was fixed at $1,000 a month. Upon certain conditions, however, the husband was allowed to apply to a referee to determine whether this amount should be reduced, paying his wife meanwhile $500 a month. The husband failed to perform these conditions. On August 18th he was relieved of this default. The order provided that he pay his wife all arrears at the rate of $500 per month, beginning on July 1st, and give security in the sum of $5,000 “ to secure future payments of said alimony.” Within ten days he was to consent to a reference to determine whether the original allowance of $1,000 was excessive. If he failed to consent, the original allowance was to stand and he was to secure its payment by a bond of $10,000.

The husband filed his consent to the reference in due time and performed the conditions imposed upon him. Among other things, he gave an undertaking signed by the defendants. It recited the order of August 18th requiring security for the payment of alimony in the sum of $500 monthly,” and the defendants agreed to pay on demand “ all alimony which may be awarded to ” the plaintiff pursuant to the said order ” not exceeding $5,000. The reference proceeded and on December 18th, 1926, upon a report an order was made finally fixing the amount of alimony at $1,000 a month from the date of the original decree.

The amount of the future payments of alimony awarded by the order of August 18th was $500 a month from September 1st, 1925, to December 18th, 1926 — a period of sixteen months. This is plainly the meaning of the undertaking viewed in connection with the order under which it was given. As $500 has admittedly been paid by the defendants, there remains due $7,500 for which defendants would be responsible to the extent of $4,500. To recover that sum the action is brought. The answer, among other things, alleges that the plaintiff has received alimony in excess of $5,000, in reality $6,000. But down to the commencement of the action at $1,000 a month, the amount finally found due to the plaintiff from her husband, $19,000 alimony would be owing. On this should be credited not only the $500, but $6,000 paid by the husband, leaving the balance of $12,500 mentioned in the complaint.

How and when this $6,000 was paid nowhere appears. Nor on what applicable. If on the temporary $500 a month payments, then the defendants are liable for $1,500. If on $1,000 a month from July 1st, 1925, then for $4,500. (Six months from July, 1925, is December, 1925, which would exhaust the $6,000. December, 1925, to December, 1926, date of order, is twelve months, $12,000, or secured by bond $6,000. Less $500 paid, $5,500.)

With such a question unsolved this does not seem to be a case for summary judgment. Rule 113 provides for such a judgment in an action to recover a debt or a liquidated demand arising on contract or on a judgment for a stated sum. On the papers presented to the court it must be possible to calculate the amount of the judgment to which the plaintiff is entitled. No further proof must be required. That is not the situation here. Some amount is due the plaintiff. Whether $4,500 or a less sum is not disclosed. The order for summary judgment should be denied.

Whether the separate defense is sufficient in law on its face is immaterial. The answer denies the allegation as to the amount of alimony due, and raises this issue.

The order of the Appellate Division should be affirmed in so far as it refuses to dismiss the complaint, and reversed in so far as it remits the matter to the Special Term with directions to grant summary judgment, and the order of the Special Term denying the motion for summary judgment should be affirmed, with costs in this court to the appellants. The first question certified should be answered in the affirmative and the third in the negative. The second should not be answered.

Cardozo, Ch. J., Pound, Crane, Kellogg and O’Brien, JJ., concur; Lehman, J., not sitting.

Ordered accordingly.


text:
    The People of the State of New York, Appellant, v. Michael Angelo, Respondent.
    Crimes — manslaughter in second degree — trial — charge —■ meaning of words “ culpable negligence ” as used in section 1052 of Penal Law defining manslaughter in second degree — erroneous refusal to charge that slight negligence was not culpable.
    1. “ Culpable ” negligence within the meaning of section 1052 of the Penal Law, defining manslaughter in the second degree, is something more than the slight negligence necessary to support a civil action for damages. It means, disregard of the consequences which may ensue from the act, and indifference to the rights of others. Under a given state of facts, whether negligence is culpable is a question of judgment, ordinarily for the jury, but it may become a question of law. If the negligence is so slight as not to reach the required standard the court should advise an acquittal of the accused.
    2. Upon trial of ah indictment charging defendant with manslaughter in the second degree, in having killed a person through his culpably negligent operation of an automobile, a refusal of the trial judge to charge that slight negligence was not culpable and leaving it to the jury to say whether it was or was not, was substantial error, where the evidence presented a question of fact as to whether defendant was guilty of culpable or at most of slight negligence betokening no recklessness or disregard of consequences.

      People v. Angelo, 219 App. Div. 646, affirmed.
    (Argued October 11, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 9, 1927, which reversed a judgment rendered at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of manslaughter in the second degree and granted a new trial.

      Guy B. Moore, District Attorney (John J. Kane of counsel), for appellant.
    The trial court’s charge on the subject of “ culpable negligence ” did not prejudice the substantial rights of the defendant and presents no reversible error. (Noonan v. Luther, 119 App. Div. 703; State v. Horner, 266 Mo. 109; People v. Buddensieck, 4 N. Y. Cr. Rep. 265; 103 N. Y. 501; People v. Noblett, 244 N. Y. 355; People v. Gowasky, 244 N. Y. 451; Hun v. Cary, 82 N. Y. 71.)

      Michael J. Montesano and Joseph C. Bell for respondent.
    The court committed reversible error in its charge to the jury upon the subject of “ culpable negligence,” in effect permitting the jury to form its own definition of the term. (McDonald v. The Tom Lisle, 48 Fed. Rep. 690; McClain v. Brooklyn, 116 N. Y. 459; Martin v. Hertzog, 228 N. Y. 164; People v. Rosenheimer, 209 N. Y. 115; People v. Buddensieck, 4 N. Y. Cr. Rep. 230; People v. Gaydica, 122 Misc. Rep. 31; Brown v. Shyne, 242 N. Y. 176 ; People v. Pace, 220 App. Div. 495; People v. Barnes, 182 Mich. 179; People v. Harris, 214 Mich. 145; People v. Adams, 289 Ill. 339.) The court committed reversible error in charging the jury in effect that the defendant was guilty of manslaughter without regard to proximate cause provided he was guilty of negligence contributing in any degree to the accident, and in further charging the jury in effect that the defendant was guilty of manslaughter unless the accident was caused solely and alone by the negligence of the driver of the other car. (People v. Jackson, 125 App. Div. 873.) The court committed reversible error in charging the jury as a matter of law that the defendant was guilty of manslaughter if he violated section 14 of the General Highway Traffic Law -without reference to whether such violation, if any, was the proximate cause of the accident. (People v. Rockwell, 39 Mich. 503; People v. Barnes, 182 Mich. 179; State v. Campbell, 82 Conn. 671.)
   Andrews, J.

At a street intersection there was a collision between two automobiles, a passenger, in one being killed. The driver of the other has been convicted of manslaughter in the second degree. The judgment was reversed by the Appellate Division because it was thought that erroneous instructions were given to the jury as to the meaning of the words “ culpable negligence.” Whether this is so or not requires an analysis of two sections of the Penal Law.

Any killing is homicide — either murder or manslaughter —unless the act is excusable or justifiable. With the latter exception we do not here deal. It is excusable, however, if the homicide is committed by accident or misfortune in doing a lawful act by lawful means with ordinary caution without unlawful intent. (Penal Law, sec. 1054.) What is meant by “ ordinary caution” is defined by section 1052. Where the killing is the result of any act, procurement or culpable negligence ”— not constituting the crime of murder or manslaughter in the first degree — the defendant is guilty of manslaughter in the second degree. “ Ordinary caution ” must mean the absence of culpable negligence, otherwise a gap might exist — a case of homicide not excusable under section 1054, yet not criminal under the definitions of sections 1044, 1046, 1050 and 1052. But section 1043 is intended to include every species of homicide. The ultimate question, therefore, is as to the intent of the Legislature in using the two words culpable ” and “ negligence.”

“ Culpable ” has been defined as guilty, criminal, deserving punishment or condemnation,” and more mildly as deserving blame or censure, blameworthy.” (Oxford Dictionary.) It may be said that any negligence resulting in injury to another is blameworthy. Were this the meaning of the Legislature the use of the adjective is superfluous. In truth, however, our criminal law has an historic background. Criminal negligence is no new invention. We did not first use the word culpable.

A sketch of the common law as to homicide may be found in Stephen’s History of the Criminal Law (Yol. 3, p. 1). He says Bracton distinguishes between casual homicides caused by a lawful act without or with negligence and casual homicide caused by an unlawful act. In the first of the three cases he believed no offense was committed. As time went on the rules as to homicide became fixed. About 1762 Sir Michael Postee defines homicide per infortunium, as death caused unintentionally in doing a lawful act with due caution or with only slight negligence. Stephens sums up the common-law rule in his Digest of the Criminal Law (p. 169): “ No one is deemed to have committed a manslaughter only because he has caused the death * * * of another by negligence which, is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case. An intentional omission to discharge legal duty always constitutes culpable negligence.”

Abundant support of this proposition is found both in text-books and in opinions. Chapter 39 of Hale’s Pleas of the Crown discusses involuntary homicide and a note at page 475 says that the test of criminal responsibility is whether the conduct of the accused is contrary to law or not being so forbidden was so gross, negligent or violent as necessarily to produce the belief that the act which * * * caused death was such an act or was done in such a manner as to involve moral impropriety.” Some similar statements are found in East’s Pleas of the Crown and in Russell on Crimes. And in Wharton on Homicide we find the statement that to warrant a conviction of manslaughter there must be criminal intent or negligence so gross as to imply it (p. 9).

As to precedents at least as early as 1664 the distinction is made between negligence so great as to be blameworthy and, therefore, deserving punishment and the slight degree of negligence that would not justify a criminal charge. (J. Kelyng, Crown Cases, 40.) And later cases reiterate this settled rule. (1829: R. v. Van Butchell, 3 Carr. & P. 629; R. v. Williamson, Id. 635; 1830: R. v. Long, 4 id. 398; 1831: R. v. Same, Id. 423; 1835: R. v. Green, 7 id. 156; 1857: R. v. Hughes, 1 Dears. & B. 248; 1860: R. v. Gregory, 2F.& F. 153; 1864: R. v. Markuss, 4 F. & F. 356; 1866: R. v. Noakes, 4 id. 920; 1874: R. v. Finney, 12 Cox C. C. 625; R. v. Nicholls, 13 id. 75; 1883: R. v. Franklin, 15 id. 163; 1887: R. v. Dogherty, 16 id. 306; 1889: R. v. Elliott, 16 id. 710.) They use such words as “ gross,” “ reckless,” “ culpable.” Consistently they assert, expressly or by implication, that something more is required than the bare negligence that might be sufficient to support a civil action. They hold that it is for the jury to decide, in view of all the circumstances, whether the act was of such a character as to be worthy of punishment.

This', then, was the common law. And in this condition it passed to the Colony of New York. In the original grant to the Duke of York he was authorized to establish laws and ordinances civil and criminal, “ Soe always as the said statutes ordinances and proceedings, bee not contrary to but as neare as conveniently may bee agreeable to the lawes, statutes and Government of this our Realme of England.” Accordingly his laws state that as it was impossible to provide sufficient laws for all cases and proper punishments, the Court of Assizes shall award punishments in their discretion but not contrary to the known laws of England.” And in the instructions to Dongan in 1683 the Governor was required to follow established and known laws not repugnant to but as nigh as may be agreeable to the laws of the Kingdome of England.” Apparently, under the Colony this was thought sufficient, and no independent definition of manslaughter appears in the statutes.

Under our first State Constitution such parts of the common and statutory laws of England, and such acts of the Colonial Legislature as formed the law of the Colony on April 19th, 1775, were continued in force. Chapter 22 of the Laws of 1787 related to murder. It says, however, that if the homicide occurred by misfortune the accused is to be acquitted — the old phrase homicide per infortunium. The reference is to the older usage — a conviction of the accused, followed by pardon. Manslaughter is not directly defined. . It is considered a felony and as such is included in a statute fixing penalties for various unnamed felonies. (1 Rev. Laws, ch. 58, sec. 4.)

Finally came the Revised Statutes in 1828. Part 4 was substantially a penal code and a code of criminal procedure. It, for the first time, gives a precise definition of murder and manslaughter. And the latter is divided into four degrees. The revisers in their notes speak of the existing law. They say the offense is anomalous, ranging from murder to excusable homicide. They wish to apportion the punishment to the depravity "of the offense. If the act is imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it is murder. If the accused, engaged in a lawful act in which there is no apparent risk of life, but not using ordinary care and precaution, kills another he is guilty of. manslaughter in the fourth degree. Evidently the Legislature was not satisfied with this definition. Its intent was to soften existing rules, not to make them more rigorous. It contained eminent lawyers well instructed as to the common law. It, therefore, struck out this clause. There remained the provision as to killing by culpable negligence practically in the same form as it has existed ever since. It would seem clear, therefore, that the Legislature used the word in the same sense as it had been used for centuries — as the equivalent of criminal,” reckless,” “ gross,” such negligence as it is worthy of punishment.

The leading case in this State on the subject is People v. Buddensieck (103 N. Y. 487). The recorder had told the jury that they must not only find that the evidence establishes, before they can convict, the presence of mere ordinary negligence on the part of the defendant, but they must find it in such extreme degree as the use of the term culpable negligence ’ imports in the section of the code referred to.” And again he uses the words “ unlawful negligence or reckless means.” This court expressed generally approval of the charge. Other passing references to the subject have been made by us. In People v. Rosenheimer (209 N. Y. 115) Judge Cullen said that a distance separates the negligence which renders one criminally hable from that which establishes civil liability.” So in Brown v. Shyne (242 N. Y. 176) Judge Lehman says the charge of manslaughter can be sustained only if the defendant’s negligence reached beyond the bounds of lack of skill and foresight where civil liability begins to a point where criminal liability is imposed because the negligence is not merely venial but ' culpable,’ involving fault for which the state may demand punishment.”

Culpable ” negligence is therefore something more than the slight negligence necessary to support a civil action for damages. It means, disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment. Ordinarily for the judgment of the jury, as is the question whether negligence exists at all. But in the one case as in the other it may become a question of law. If the negligence is so slight as not to reach the required standard the court should advise an acquittal of the accused. Under such circumstances the jury may not be allowed to find a verdict of guilty.

In the case before us there was sufficient evidence to justify a finding that the defendant was guilty of culpable negligence. It does not stand, however, without contradiction. The defendant’s testimony shows an absence of any negligence whatever, or at most but slight negligence. • Where the truth lay was for the jury to decide. They might convict the defendant of manslaughter. They might acquit him as free from negligence, or as guilty of such slight negligence as betokened no-recklessness, no disregard of consequences, no indifference to the rights of the deceased. What they might not do was to find that negligence slight was also culpable.

Yet under the charge this is precisely what they were permitted to do. They were told that a slight act of carelessness might not be in their judgment culpable. If the defendant from some little error of judgment did some slight negligent act that act, perhaps, they might not corsider culpable. And he refused to charge that slight negligence was not culpable but left it to the jury to say whether it was or was not.

This was error and under the facts of the case substantial error. However indefinite the rule, however uncertain the meaning of such words as “ gross,” “ wanton,” reckless,” “ slight,” yet in view of the facts of a particular case, both the rule and the words do convey an idea to the jury sufficient to guide their action.

The judgment appealed from should be affirmed.

Cardozo, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ., concur; Pound, J., dissents on the ground that unless the homicide was excusable (Penal Law, § 1054), it was manslaughter in the second degree (Penal Law, § 1052, subd. 3).

Judgment affirmed.


author:
Lehman, J.
      Crane, J.

text:
    The Eastern Construction Co., Inc., Respondent, v. Eastern Engineering Corporation, Appellant.
    Injunction — trade names — justification for injunction restraining defendant from using its corporate name — common right to use geographical or descriptive terms does not include use calculated to deceive — application for injunction denied where reasonable probability of loss of business by plaintiff is wanting.
    1. Justification, if any, for an injunction restraining defendant from using the word “ Eastern ” as part of its corporate name, must rest upon a finding that the corporate name which the defendant had adopted, with the sanction of the State, is so similar to the name under which the plaintiff conducts its business that the' public may be confused and that some persons may do business with the defendant in the belief that they are dealing with the plaintiff.
    2. A contention that the name “ Eastern ” is a geographical term descriptive of the territory in which both corporations conduct their business, and that the plaintiff may not appropriate such a term as its exclusive property, is not decisive. Common right to use geographical or descriptive terms does not include a use which is calculated to deceive.
    3. Where, however, though some similarity of name exists between plaintiff and defendant, it is joined with difference so marked that it can hardly be overlooked and the nature of the business in which they compete is such as to reduce, almost to the vanishing point, the possibility of deception and damage, the value of plaintiff’s reputation and good will is not shown to be materially decreased by possible confusion and the defendant is not shown to be in a position to gain any advantage by it, the reasonable probability of loss of business by the plaintiff which constitutes the ground for the intervention of a court of equity is wanting and the application for an injunction should be denied.

      Eastern Construction Co. v. Eastern Engineering Co., 219 App. Div. 820, reversed.
    (Argued October 10, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart^ ment, entered March 25, 1927, which affirmed an order of ■ Special Term granting a motion for an injunction pendente lite restraining defendant from using the word “ Eastern ” as part of its corporate name.

      Michael M. Helfgott for appellant.
    The word “ Eastern ” as a portion of a corporate name cannot acquire a “ secondary meaning ” so as to entitle the respondent to the exclusive appropriation thereof as a common-law trade-mark where it does not relate to or identify any commodity, article of merchandise, specific product or sales of goods exclusive in manufacture or description in the absence of unfair competition by the appellant or damage to the respondent. (Corning Cut Glass Works v. Corning Cut Glass Company, 197 N. Y. 173; Butterfield v. Abraham & Strauss, 241 N. Y. 560; Koehler v. Sanders, 122 N. Y. 65; Ball v. Broadway Bazaar, 194 N. Y. 429; Oneida Community v. Oneida Game Trap Co., 150 N. Y. Supp. 918.) The word “ Engineering ” is clearly distinguishable from the word “ Construction ” so as to clearly distinguish the two names. (Buffalo Typewriter Exchange Co. v. McGarl, 240 N. Y. 113; Materialmen Mercantile Association v. Materialmen Credit Agency, 191 App. Div. 73; Romeike, Inc., v. Romeike & Co., 179 App. Div. 712.) The record does not present any facts to warrant the injunction on the theory of unfair competition. (Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173; Butterfield v. Abraham & Strauss, 241 N. Y. 560; Buffalo Typewriter Exchange v. McGarl, 240 N. Y. 113.)

      Herman Vogel for respondent.
    The order granting the injunction is correct and should be affirmed. Geographical designations can acquire a good will and can be used exclusively as part of a corporate name as against competitors for the same business. (Koehler v. Sanders,
      122 N. Y. 65; Kayser v. Italian Silk Underwear Co., 160 App. Div. 607; German-American Button Co. v. Heymsfeld, Inc., 170 App. Div. 416; Oneida Community, Ltd., v. Oneida Game Trap Co., Inc., 168 App. Div. 769; Lerner Stores Corp. v. Lerner Ladies’ Apparel Shop, Inc., 218 App. Div. 427; International Cheese Co. v. Phenix Cheese Co., 118 App. Div. 499; Phenix Cheese Co. v. Kirp, 176 App. Div. 735.) Confusion has been caused, by the similarity of names, and appellant had immediate notice thereof. The equities favor the respondent. (Pansy Waist Co., Inc., v. Pansy Dress Co., Inc., 203 App. Div. 585; People ex rel. Columbia Co. v. O’Brien, 101 App. Div. 296; Lucile, Limited, New York & Paris, v. Schrier, 191 App. Div. 567; Higgins v. Higgins, 144 N. Y. 462; Bush Terminal Co. v. Bush Terminal Trucking Co., Inc., 123 Misc. Rep. 448; Suburban Press v. Philadelphia Suburban Pub. Co., 227 Penn. St. 148.) The record is sufficient to sustain the granting of the injunction. (Vulcan v. Myers, 139 N. Y. 364; Romeike, Inc., v. Romeike, & Co., 179 App. Div. 712.)
   Lehman, J.

Since March, 1922, the plaintiff has been engaged under its corporate name in the business of building construction. Prior to that time, its president individually had conducted for many years a similar business under the trade name of Eastern Construction Company and had filed a certificate to that effect, as required by law, in the office of the clerk of the county of New York. In November, 1926, a certificate of incorporation was issued by the Secretary of State to the defendant. The business in which the defendant is authorized to engage is similar to the business which the plaintiff carries on. The plaintiff promptly objected that the use in such business by the defendant of a corporate name containing the word “ Eastern would produce confusion of identity in the minds of the public. The defendant disregarded the objection and since that time has carried on its corporate business under its corporate name.

The plaintiff and the defendant are both engaged in the business of building construction. In the course of business both submit bids for the erection of public buildings and seek contracts for public work. Not always do they submit bids for the same work, or seek the same contract. Part of the business done by the plaintiff may lie somewhat outside the limits of the field of activities into which the defendant has entered. Within those limits they are competitors, and a court of equity may restrain them from using methods of competition which are unfair. Neither may by misrepresentation or deceit obtain, from the public, business which the other might have received.

The plaintiff corporation has brought this action to obtain an injunction against the use by the defendant of its corporate name in its business. An injunction pendente lite has been granted and the order has been affirmed by the Appellate Division. The defendant is restrained from the use of the word Eastern ” as part of its name. Leave to appeal has been granted and the Appellate Division has certified the question: Was the court at Special Term justified in granting an injunction pendente lite to the plaintiff? ”

Justification, if any, for the injunction must rest upon a finding that the corporate name which the defendant has adopted, with the sanction of the State, is so similar to the name under which the plaintiff conducts its business that the public may be confused and that some persons may do business with the defendant in the belief that they are dealing with the plaintiff. The plaintiff’s moving affidavits sufficiently show that the plaintiff has built up a business reputation and good will. The name under which a business is carried on is inextricably entwined with its reputation and good will. It is said that in this case the name Eastern ” is a geographical term, descriptive of the territory in which both corporations conduct their business, and that the plaintiff may not appropriate such a term as its exclusive property. Technical distinction between geographical or descriptive trade names on the one hand and fanciful trade names on the other hand is unimportant in this case. The defendant may not expressly or impliedly represent that it is the same corporation or connected with the same corporation which has built up a reputation and good will under the name of Eastern Construction Company. If, in the business of building construction, the name “ Eastern ” has become so exclusively associated with the plaintiff that its use by the defendant in its corporate name tends naturally to induce the belief in those dealing with the defendant that they are dealing with the plaintiff, then, to that extent, the use by the defendant of the corporate name chosen by it constitutes a misrepresentation, fraudulent if chosen with intent to deceive, innocent, at least in its inception, if chosen without such intent. Misrepresentation though innocent at its inception may become wrongful if unreasonably persisted in, after knowledge of its tendency to deceive has been gained. The courts have never found difficulty in protecting the public and the owner of the good will of a business against the deceptive use of a trade name even though that name was originally chosen without wrongful purpose. (Ewing v. Buttercup Margerine Company, Ltd., [1917], 2 Ch. Div. 1.) Common right to use geographical or descriptive terms; even individual right to use one’s own name, does not include a use which is calculated to deceive. (Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173; Ball v. Broadway Bazaar, 194 N. Y. 429; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462.) “ The name of a person or a town may have become so associated with a particular product that the mere attaching of that name to a similar product without more would have all the effect of a falsehood.” (Herring Hall Marvin Safe Co. v. Hall’s Safe Co., 208 U. S. 554.) Judicial interference will depend upon the facts proved and found in each case. The test is whether resemblance is calculated to produce confusion as to identity and consequent damage. (American Steel Foundries v. Robertson, 269 U. S. 372.)

Tried by that test, the evidence in this case is insufficient to justify the injunction which has been granted. Some similarity of name exists, but joined with difference so marked that it can hardly be overlooked, especially by those concerned in matters of such importance as the award of a contract for the construction of a public building. True, not all persons constantly exercise caution in their daily affairs, and a merchant may be injured by deception of the incautious and unwary among his customers. The nature of the business in which the defendant competes with the plaintiff reduces almost to the vanishing point the possibility of deception and damage in this case. The defendant does not seek the patronage of the wayfarer whose purchases are often dictated by hasty impression rather than inspection and consideration. The defendant competes with the plaintiff in bidding for public work. When it chose the word “ Eastern ” as part of its name, it could hardly have expected that its name might result in the acceptance of bids for public work which otherwise would have been rejected. No bid of the defendant has been accepted and no contract has been awarded to it, because an architect or other person examining bids or awarding contracts has been confused as to the defendant’s identity. As to such persons no reasonable inference can be drawn that the name tends to deceive and constitutes a misrepresentation. The affidavits show that there has been some confusion in the minds of others dealing with the plaintiff in more casual manner. Choice of name by the defendant could not be dictated by intent through such confusion to obtain a benefit at the plaintiff’s expense. Such confusion resulting merely in non-delivery of mail or other messages would indeed tend to the detriment of the defendant, though perhaps in lesser degree than to the plaintiff. Moreover, it appears that other building and contracting companies using the word Eastern ” as part of their names are listed in the telephone directory. The value of the plaintiff’s reputation and good will is not shown to be materially decreased by possible confusion. Certainly the defendant is not shown to be in a position to gain any advantage by it. Reasonable probability of loss of business by the plaintiff which constitutes the ground for the intervention of a court of equity is wanting.

If inference could be drawn that the defendant had chosen the name of Eastern Engineering Company with intent to derive benefit from it at the expense of the plaintiff, our conclusion might be different. Courts of equity are loathe to hold that a knave may carry out a dishonest plan from which he anticipates benefit because there is no reasonable probability that the anticipation will become reality. In such case the defendant may be in no position to deny the existence of such probability when asserted by the plaintiff. Even if the remark of Cozens-Hardy, Master of the Rolls, in similar case, that “ if you find a defendant who is a knave, you may presume he is not a fool ” (Claudius Ash Sons & Co., Ltd., v. Invicta Manufacturing Company, Ltd., 28 Reports of Patent Cases at page 603) may not completely stand the test of strict legal analysis, it sufficiently states a working rule which may well be applied in proper circumstances. Such circumstances have not been shown to exist in this case.

The order of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs in all courts. The question certified should be answered in the negative.

Crane, J.

(dissenting). With all the other names which the defendant could have taken, why did it choose “ Eastern? ” There is no answer except that it expected to and did reap the advantages gained by the long user of the name by the plaintiff. The defendant entered the field of similar business to compete with the plaintiff. It took the word Eastern ” long used by the plaintiff. It was timely warned of the damage being done by the subtle deception and still persisted in its course. In all fairness why did it not take another name; Western, Northern, Southern, Blue, any name among the millions which could have been selected. No, it must stick to Eastern, to be used in New York city where the plaintiff was bidding for its construction and engineering work. The points of the compass had nothing to do with the nature of the business conducted by these parties. Eastern is no less arbitrary than Arctic or Solar. The defendant should fall in fine and do the fair thing. Business in these modern days is complicated enough without having some new-born competitor mix up identities.

Early decisions are of little use as authorities on modern New York city competition. They could no more imagine these conditions than they could foresee the airship or the wireless. Let the defendant get a new name and do its business on its own merits.

For these reasons I dissent.

Cardozo, Ch. J., Pound, Andrews, Kellogg and O’Brien, JJ., concur; Crane, J., dissents in memorandum.

Ordered accordingly.


author: Lehman, J.

text:
    The People of the State of New York, Respondent, v. Theodore Hillman and Joseph C. Stencil, Appellants.
    Crimes — constitutional law — jurisdiction — State can confer no jurisdiction upon its courts where Federal Constitution gives Congress exclusive authority — crime committed on. lands purchased by government with consent of State for military purposes must be tried under Federal laws before Federal tribunal — finding by jury that crime occurred within jurisdiction of court not decisive — jurisdiction of County Court — requisites to oust State of jurisdiction over lands within its boundaries — courts in determining as to jurisdiction of State may refer to instruments recorded in a public office — title to West Point Military Reservation in Federal government ■ — ■ effect of reservation in conveyance of “ usual allowance for highways ” — consent by State to purchases of land for reservation and cession of jurisdiction thereover — reservation of right to serve civil and criminal process and of right of occupancy of highways not a reservation of political dominion — State courts without jurisdiction of crime committed on highway within reservation.
    1. The State of New York can confer no jurisdiction upon its courts where the Constitution of the United States gives Congress exclusive authority. If a crime in fact occurred at a place purchased by the consent of the Legislature of the State of New York and used as a military reservation, then trial must be held according to the laws made by the United States Congress and before a tribunal selected by it. (U. S. Const, art. 1, § 8.)
    2. An argument that a finding by the jury that the crime occurred at a point within the jurisdiction of the Orange County Court, if made on competent evidence, destroys all basis for a contention that that court was without jurisdiction, cannot be sustained. No finding made at the trial can itself be the source of jurisdiction of the court or result in extension of jurisdiction beyond the limits of the territory where the State is sovereign.
    3. The Orange County Court has jurisdiction to try all charges of crime committed within the territorial bounds of the county, unless it clearly appears that the political dominion over the place where the crime was committed was not in the State of New York. To oust the State of dominion the place must have been purchased by the United States government for military purposes and the State must have consented to such purchase.
    4. Where jurisdiction of the court is challenged upon the ground that the Legislature of the State has ceded to the United States dominion over lands conveyed to the United States, the courts are called upon to construe the relevant statutes of the Legislature and determine the boundaries of' the land to which the statutes were intended to apply. As aid to such construction and determination, the court may seek the same information which was available to the Legislature, and may refer to instruments which are recorded in a public office.
    5. Upon examination of the original patent, the will of the patentee, the deed of his devisee conveying lands to the government and other documents recorded in the office of the Secretary of State and of the clerk of Orange county, there can be no question but that title to West Point Military Reservation has been acquired by the United States, and the evidence shows that the crime of which defendants are accused occurred on a State highway passing through that tract.
    6. The fact that the conveyance to the original patentee was made “ with the usual allowance for highways ” does not constitute an exception of land from the grant of the tract described by metes and bounds. The effect of the clause is. merely that the State reserves the right to appropriate the customary proportion of the land embraced in the tract for highway purposes and the construction of a highway does not divest the grantee or his successors of the ownership of any of the land conveyed subject to such use.
    7. By chapter 359 of the Laws of 1875 the State consented to the purchases theretofore made by the United States of the lands in the Military Reservation at West Point and ceded to it the jurisdiction over said lands, reserving the right to serve civil and criminal process and occupancy of the highways now existing or which may exist, upon said lands under the laws of this State.” The legislative cession of jurisdiction after purchase has the same effect as consent before purchase, and the reservation of the right to serve civil and criminal process upon the lands ceded does not defeat the intent to confer exclusive political dominion over the ceded lands.
    8. Nor may reservation of right of occupancy of the highways now existing or which may exist upon such lands under the laws of this State be construed as a reservation, not merely of the right of occupancy, but of political dominion and legislative authority over a narrow strip of land running through the reservation. The intent evidenced by the language of the statute is to cede complete political dominion, subject only to a right of public occupancy for highway purposes, of those parts of the land which are or may be used for highways.
    9. The State courts, therefore, as matter of law, are without jurisdiction to render judgment of conviction upon defendants. They must be dealt with by the United States authorities.

      People v. Hillman, 219 App. Div. 792, reversed.
    (Argued October 11, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 28, 1927, which affirmed a judgment of the Orange County Court, rendered upon a verdict convicting the defendants of the crime of robbery in the first degree.

      Henry Hirschberg for appellants.
    Courts will take judicial notice of the limits of their jurisdiction, of cessions of public lands, of the boundaries of the Federal Military Reservation at West Point, of public records, documents and the general events of history. (Lasher v. State, 17 S. W. Rep. 1064; Bissing v. Smith, 85 Hun, 564; People v. Snyder, 41 N. Y. 397; Howard v. Moot, 64 N. Y. 262; People ex rel. Schuyler v. Livingstone, 123 Misc. Rep. 605; Baker v. State, 83 S. W. Rep. 1122; Wheelock v. Lee, 15 Abb. Pr. [N. S.] 24; Beekman v. H. R. W. S. Ry. Co., 35 Fed. Rep. 3; Swinnerton v. Col. Ins. Co., 37 N. Y. 174; Woods v. Wilder, 43 N. Y. 164.) Land purchased or acquired by the Federal government for a military reservation and ceded by the State, is under the exclusive criminal jurisdiction of Congress. (People v. Kraus, 212 App. Div. 397; U. S. v. Tucker, 122 Fed. Rep. 520; Benson v. U. S., 146 U. S. 325; Ft. Leavenworth v. U. S., 114 U. S. 325; Battle v. U. S., 209 U. S. 36; People v. Marra, 4 N. Y. Cr. Rep. 304; Beekman v. H. R. W. S. Ry. Co., 35 Fed. Rep. 3; Matter of Ladd, 74 Fed. Rep. 31; Armstrong v. Foote, 19 How. Pr. 237; Dibble v. Clapp, 31 How. Pr. 420; State v. Morris, 68 Atl. Rep. 1103; U. S. v. Cornell, 2 Mason, 60; Lasher v. State, 17 S. W. Rep. 1064; People ex rel. Schuyler v. Livingstone, 123 Misc. Rep. 605.) A State highway maintained by the State and running through the military reservation would also be under the exclusive criminal jurisdiction of Congress even though highway rights of travel thereover were reserved to the People of the State. (People ex rel. Schuyler v. Livingstone, 123 Misc. Rep. 605; Becker v. State, 83 S. W. Rep. 1122; Beekman v. H. R. W. S. Ry. Co., 35 Fed. Rep. 3.)

      Elmer H. Lemon, District Attorney, for respondent.
    The court cannot take judicial notice that the place where the crime was committed was within the limits of the military reservation. (Matter of Viemeister, 179 N. Y. 235; Town of North Hempstead v. Gregory, 53 App. Div. 350; Walton v. Stafford, 14 App. Div. 310; 162 N. Y. 558; Buxton v. City of Nashville, 201 S. W. Rep. 512; Keller v. Whittington, 153 S. W. Rep. 808; Line v. Line, 86 Atl. Rep. 1032; Christy v. Wabash R. Co., 191 S. W. Rep. 241; State v. Wray, 19 S. W. Rep. 86.) Even if the government owns the fee to the land upon which the State built and maintains a State highway, that fact alone does not deprive the State of jurisdiction. (Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; People v. Kraus, 212 App. Div. 397; People v. Godfrey, 17 Johns. 225.)
   Lehman, J.

The defendants have been indicted by the grand jury of the county of Orange upon a charge of robbery in the first degree committed upon a public highway in the town of Highlands in the county of Orange. They have been convicted of the crime charged after trial in the County Court of Orange county. It is not disputed that the People presented testimony, not contradicted by any evidence produced on behalf of the defendants, which shows that' the defendants did commit a robbery as charged, upon a highway within the geographical limits of the town of Highlands and of the county of Orange. If the State of New York had legislative jurisdiction over the place where the evidence shows that the crime was committed, and might confer upon the County Court jurisdiction to try a defendant charged with crime at that point, the conviction must be affirmed. The defendants attack the judgments of conviction upon the contention that the place where according to the uncontradicted testimony the crime was committed, lies within the Emits of the West Point MiEtary Reservation where the government of the United States exercises exclusive political dominion, and where the County Court, created by and acting under authority of the State of New York, may exercise no criminal jurisdiction.

The evidence shows that the complaining witness and the defendants drove in an automobile from the village of Highland Falls along a State highway. They ascended a hiU until they came to a sign post at a cross road. They proceeded a short distance from the sign post along the State highway known as the Storm King highway in a northerly direction. The robbery occurred at a point on that highway where the land on both sides is part of the West Point MiEtary Reservation. A highway existed there for at least forty years; indeed, for as long a time as any of the witnesses, residents of the neighborhood, can remember. The evidence produced at the trial conclusively shows that the robbery occurred on a State highway which passes through a miEtary reservation of the United States. There is Ettle, if any, evidence to show whether the highway is part of the reservation or on land excepted from it.

Article I, section 8, of the Constitution of the United States provides that The Congress shaE have Power * * * To exercise exclusive Legislation in all Cases whatsoever, over such District [not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority-over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” The State of New York can confer no jurisdiction upon its courts where the Constitution of the United States gives Congress exclusive authority. If the crime in fact occurred at a place purchased by the consent of the Legislature ” of the State of New York and used as the West Point Military Reservation, then trial must be held according to the laws made by the United States Congress and before a tribunal selected by it.

The trial court in this case submitted to the jury the question of whether the crime occurred at a point within the jurisdiction of the County Court of Orange county. The jury found it did. The People claim upon this appeal that this finding, if made on competent evidence, destroys all basis for the contention of the defendants that the County Court was without jurisdiction. The County Court can exercise no jurisdiction not conferred upon it by the State. In terms the. State has conferred upon the court jurisdiction to pass upon charges of crime alleged to have been committed within the territorial limits of Orange county. The courts of the State of New York, deriving their authority from the Constitution or the Legislature of the State, are the creatures of the State. Where exclusive political dominion is lodged in another sovereign, the State can confer no authority upon its courts, and its courts can exercise no authority which the State does not possess. No finding made at the trial can itself be the source of jurisdiction of the court or result in extension of jurisdiction beyond the limits of the territory where, the State is sovereign.

Where the State confers upon its courts jurisdiction to try a charge, contained in an indictment or information, that a crime has been committed within the territorial limits of its sovereignty or within some subdivision thereof, an issuable question of fact which the court has jurisdiction to try may arise as to whether the crime was committed as charged at a place within such territorial limits. The determination of the court of an issuable question of fact which the court has jurisdiction to try may form the basis for a conclusion that the court has jurisdiction to render judgment. Where there is a dispute as to the place where a crime was committed, a question of fact may be presented upon which the jury must pass. (State v. Rose, 136 Atl. Rep. 295; Oakes v. State, 135 Ark. 221; United States v. Lewis, 111 Fed. Rep. 630.) Even where there is no dispute as to the place where the crime was committed, a question of fact, which the court has jurisdiction to determine, may arise as to whether the boundaries of a State or subdivision of a State are on one side or the other of that place. (United States v. Jackalow, 66 U. S. 484; State v. Malone, 134 La. 779; Mendiola v. State, 18 Texas Ct. App. 462; Matter of Newton, 16 C. B. 97.)

Doubtless where the sovereign power which creates the courts and confers jurisdiction upon them may punish crime committed on either side of a disputed boundary, it may confer upon any of its courts jurisdiction to determine a disputed question of fact as to where the boundary is located and may make appropriate finding upon such question the basis of a conclusion of jurisdiction in the court to render a judgment of conviction. The right of a State to confer upon its courts jurisdiction to determine as a question of fact the location of a disputed boundary of the State itself, when the jurisdiction of the court is challenged upon the ground that the political dominion of the State and the jurisdiction of its courts does not extend beyond the true boundaries of the State, is not so clear. If a determination of the location of the boundary between two sovereignties can be arrived at only by weighing conflicting evidence or conflicting inferences that may be drawn from the evidence, crime committed near the disputed boundary may go unwhipt of justice unless some tribunal is empowered by each State to take or refuse jurisdiction in accordance with the finding of fact it may make as to the location of the boundaries of the State. Accordingly, it has been held that the location of a boundary even of the sovereign State itself may present a question of fact which the courts of the State have jurisdiction to determine upon the evidence presented at the trial of an accused. (State v. Barrington, 141 N. C. 820; State v. Burton, 106 La. 732.) We are not now called upon to decide whether in similar circumstances we would reach a like conclusion. These cases hold only that the location of a boundary line may, under some circumstances, present a question of fact, but the construction of the description of a boundary line presents a question of law. In the case now under consideration, it does not appear that there is any dispute of fact as to the boundaries of the West Point Military Reservation which the courts of this State have jurisdiction to determine under any authority which the State has attempted to, or indeed perhaps could, confer upon them.

The political dominion of the State of New York extends over all the land within its territorial bounds, except where dominion over particular lands has become vested in some other political authority. The courts of Orange county have jurisdiction to try all charges of crime committed within the territorial bounds of the county, unless it clearly appears that the political dominion over the place where the crime was committed is not in the State of New York. Political dominion of the State over all places within its boundaries may be presumed or, at least, the State is not called upon to negative the existence of possible exception to such dominion. To oust the State of dominion over the place where the crime was committed, two facts must exist: First, that place must have been purchased by the United States government for military purposes, and second, the Legislature must have consented to such purchase. (People v. Godfrey, 17 Johns. 225; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525.)

At the trial no evidence was offered of the boundaries of the West Point Military Reservation, but there is testimony by witnesses for the People that the land on all sides of the point on the highway where the crime was committed belongs to the United States and is part of the Military Reservation at West Point, and that the land about this point was known as the King Avery place. No evidence was produced at the trial to show the contents of the deeds by which the United States obtained title to this land, except the testimony of one witness, who stated that title to the land was acquired by the United States in 1790 under the John Moore patent; that this deed or patent is filed in the office of the Secretary of State and that this deed contains a reservation of rights in the highway. This testimony in regard to the reservation of rights in the highway is merely a conclusion drawn from the reading of the deed, and question of the construction of the language of a deed is one of law, not of fact. It is said, however, that the court may not take judicial notice of the contents of the deed.

The right of the court to refer to the deed itself for information in regard to its language does not depend upon the ordinary rules which define those matters of which the courts may take judicial notice. The State of New York is without political dominion over the highway if the highway was constructed over land which was in fact ceded to the United States with the consent of the Legislature. The courts of the State may not in such event under color of authority from the State intrude upon the land. The authority of the State depends not upon the information as to the facts which may be available to an officer assuming to act upon such authority, but upon the existence of the facts. In no case which has been cited to us or which we have found, except possibly People v. Collins (105 Cal. 504), has any suggestion been made that evidence must be presented to a court of a State to show the territorial bounds of the political dominion of the State. It has been said often that the courts are required to take cognizance of the territorial bounds of their own jurisdiction. (Rogers v. Cady, 104 Cal. 288.) Certainly where jurisdiction of the court is challenged upon the ground that the Legislature of the State has ceded to the United States dominion over lands conveyed to the United States, the courts are called upon to construe the relevant statutes of the Legislature and determine the boundaries of the land to which the statutes were intended to apply. As aid to such construction and determination, the court may seek the same information which was available to the Legislature, and may refer to instruments which are recorded in a public office. At least where the limits of the State’s political dominion depends solely upon the construction of deeds and statutes, a question of law is presented. Such question “ cannot be made an issue ’ between the parties to be determined by the court in each case upon conflicting evidence presented in that case.” (Rogers v. Cady, supra.)

The “ Moore patent,” dated March 25th in the year 1747, recorded in the office of the Secretary of State of New York (see Book of Patents No. 12, page 228), conveys to “the king’s loving subject John Moore,” under the great seal of the Province of New York, witnessed by George Cheston, Captain General and Governor in Chief of that Province, a tract of land adjacent to another tract “ formerly granted to Charles Congreve but now in the possession of the said John Moore.” The tract is described as “ containing two hundred and eighty acres, and the usual allowance for highways.” The patent referred to in the Moore patent conveys to Charles Congreve, Gent., “ eight hundred acres of land with allowance for highways.” .

John Moore died soon after the patent was issued to him. His will was probated and letters testamentary were issued thereon on November 9th, 1749. (See liber 17, page 44, of Wills in the office of the surrogate of the city and county of New York.) In his will Moore devised to his son Stephen the Lands in the Highlands that I bought of Charles Congreve with all the Building and Appurtenances thereunto belonging, together with three negroes named Anthony, Cumberland and Voilett and all the stock thereon, and also the Tract of Land adjoyning to the above tract of Land (bought of Congreve) lately patented to me this last Containing by pattent about two hundred and eighty acres.” In 1790 the United States Congress authorized the President to purchase lands at West Point and in the same year Stephen Moore and his wife Grisey conveyed the property received under his father’s will to the United States. The deed and accompanying documents are recorded in the office of the Secretary of State of the State of New York. (See Book of Deeds, No. 24, page 74.)

In 1811, dispute having arisen as to the boundaries of the public lands of the United States at West Point, Congress authorized the Secretary of State to “ ascertain and settle, by the appointment of commissioners, the exterior line of the public land at West Point with the adjoining proprietor.” (See Laws of the United States, vol. 4th, chapter 284 [LXXIV].) Accordingly, three commissioners were appointed who made a report on January 22, 1812. This report, together with a map showing the boundaries of the land of the United States, was recorded in the office of the Secretary of the State of New York. (See Book of Deeds, No. 38, page 521.) The place of the robbery is within the boundaries of the Moore patent as shown on this map.

Later, one King Avery claimed that his wife had acquired through long occupancy title to the lands included in the Moore patent. An action of ejectment was brought against him in the Circuit Court of the United States. Judgment was entered in the action against King Avery on August 6th, 1839. Avery’s wife also gave to the United States a quitclaim deed dated February 22, 1838, and recorded-in Orange county (Liber 61 of Deeds, page 184).

There can be no question that the United States has acquired the full title to the tract conveyed to John Moore by royal patent in 1747, and that the robbery occurred on this tract. The conveyance was made, as we have pointed out, “ with the usual allowance for highways.” Here is no exception of land from the grant of the tract described by metes and bounds. Ownership to the tract was transferred from the sovereign to his subject. The effect of the clause is merely that the State reserves the right to appropriate the customary proportion of the land embraced in the tract for highway purposes. (De Camp v. Thomson, 16 App. Div. 528; affd., 159 N. Y. 436, with express approval of the opinion written at the Appellate Division.) Even if in this case the construction of the highway may be deemed an appropriation for such purpose, it does not divest the grantee or his successors of the ownership of any of the land conveyed subject to such use.

There remains only the question of whether the cession of the land is “ by the consent of the Legislature.” From time to time the Legislature has passed statutes consenting to the cession of particular tracts of land at West Point or expressly ceding to the United States jurisdiction over such tracts. The first statute which is comprehensive in scope seems to be chapter 359, Laws of 1875. By that statute it is provided that “ consent is hereby given under paragraph sixteen of section eight, article one, of the Constitution of the United States, to the respective purchases heretofore made by the United States, of the several tracts of land at West Point, in the county of Orange, now held and owned by the United States for the erection and maintenance thereon of forts, arsenals * * * etc., and the Legislature hereby also cedes the jurisdiction over said lands to the United States, reserving the right to serve civil and criminal process as now existing, except so far as such process may affect the real or personal property of the United States and occupancy of the highways now existing or which may exist, upon said lands under the laws of this State.”

It is settled that the legislative cession of jurisdiction after purchase has the same effect as consent before purchase. (Palmer v. Barrett, 162 U. S. 399; Steele v. Halligan, 229 Fed. Rep. 1011, at page 1016; United States v. Tucker, 122 Fed. Rep. 518.) The reservation of the right to serve civil and criminal process upon the lands ceded does not defeat the intent to confer exclusive political dominion over the ceded lands, and the State courts have no jurisdiction over crimes committed thereon. (Palmer v. Barrett, supra; Benson v. United States, 146 U. S. 325; Fort Leavenworth R. R. Co. v. Lowe, supra.) Reservation of right of occupancy of the highways now existing or which may exist upon such lands under the laws of this State should not be construed as a reservation not merely of the right of occupancy but of political dominion and legislative authority over a narrow strip of land running through the reservation. We are not now called upon to determine the limits of the right of occupancy of highways reserved either under the original royal patents or under the legislative cession of jurisdiction to the United States. The reservation in the statute may not be stretched beyond the intent evidenced by the language of the statute to cede complete political dominion, subject only to a right of public occupancy for highway purposes, of those parts of the land which are or may be used for highways. (See Matter of Ladd, 74 Fed. Rep. 31.)

In this conclusion we are confirmed by the interpretation which the Legislature itself has placed upon the language of the reservation. In the State Law (Chapter 59 of the Laws of 1909, section 22 [Cons. Laws, ch. 57]) the Legislature has provided: Title and jurisdiction to the following described tracts or parcels of land have been ceded to the United States by this State on condition the jurisdiction so ceded should not prevent the execution thereon of any process, civil or criminal, issued under the authority of the State, except as such process might affect the property of the United States * * * 27. At West Point, Orange County. Certain tracts of land at West Point, Orange County, acquired by the United States prior to May 15, 1875, for the erection and maintenance thereon of forts, arsenals, docks and piers, military academy * * *, etc.” It is significant that the Legislature in this statute does not include as a reservation of title or jurisdiction the clause of the original statute reserving occupancy of the highways. The fact that in chapter 164 of the Laws of 1908 the Legislature excepted public highways ” from its cession of jurisdiction of lands subsequently acquired by the United States has little if any bearing upon the construction of the statutes which apply to earlier conveyances.

The crime was committed on a point in the highway upon land which had been conveyed to the United States and was used as a military reservation. Deeds and patents recorded in public offices describe the boundaries of the land. The construction of those deeds presents a question of law. Our construction is that title to the land is in the United States, though the State has some right of occupancy in the land for highway purposes which we do not now define. The Legislature has ceded full political dominion of the land acquired before May 15th, 1875, to the United States government subject to a right of occupancy of the highways. The courts of the State have no jurisdiction over crime committed on these lands. In construing the statute the courts must determine as matter of law the boundaries of the land over which the State has ceded jurisdiction. The conclusion follows that the courts of New York in this case as matter of law are without jurisdiction to render judgment of conviction upon these defendants. They must be dealt with by the United States authorities.

The judgment of the Appellate Division and the judgment of conviction in the County Court should be reversed and the indictment dismissed.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.