author: Ross, J.

text:
    The People, Pl’ff, v. Robert Fitzsimmons, Def't.

      (Court of Sessions, Onondaga County,

      Filed July, 1895.)

    1. Prize fight—Question for jury.
    Upon the trial of an indictment for manslaughter for occasioning a death at a sparring exhibition, the question whether the exhibition was within the provisions of section 458 of the Penal Code is for the jury.
    2. Same—Intent.
    It is not necessary that a person, who commits a homicide while engaged in committing a misdemeanor, intends to violate the law, though he must have an intent to commit the act which constitutes the misdemeanor.
    Robert Fitzsimmons was indicted for manslaughter in the first degree in causing the death of one Riordon in a sparring match.
    The defendant, a professional pugilist, and one Riordon, who was known as his sparring partner, were advertised on ¡November 16, 1894, to give a sparring exhibition at the Grand Opera House, Syracuse, TST. Y. After some preliminary exhibitions by other persons, the defendant and Riordon appeared upon the stage and began to spar. At first Riordon, in the language of the ring, “forced the fighting,” the defendant seemingly acting upon the defensive. After sparring thirty or thirty-five seconds, the defendant struck Riordon, upon the side of the jaw, face, and chin, a blow, the force of which was described by the witnesses for the people and the defendant as apparently being, in the opinion of some witnesses, a light tap, and not described by any in terms as being a blow of great severity. But, according to the witnesses for the people, upon being struck Biordon’s head and body straightened up ; he then made an effort to put up his arms in position to guard and strike; and then gradually sank to the floor, like a person lying down. He was then taken off the stage, and did not recover consciousness, and died five hours thereafter. The autopsy performed the following morning revealed a large blood clot under the dura mater, in the right hemisphere of the cerebrum, of four ounces in weight, and several small clots in the left hemisphere of the cerebellum ; and it was claimed by the witnesses for the people that the right crus cerebri was lacerated. The defendant denied that the homicide was caused by the blow, but claimed that the conditions revealed upon the autopsy were caused by cerebral hemhorrhage occasioned by the degenerated condition of the arteries in the brain, in connection with the hypertrophied condition of the heart; and also that this condition was aggravated by a diseased condition of the deceased in other respects.

      Benj. J. Shore, Dist. Atty., and Jay B. Kline, Asst. Dist. Atty., for People ; Frederick B. House, Ohas. B. Ide, John McLennan, and Louis L. Waters, for def’t.
   Ross, J.

(charging jury).-—-I desire first gentlemen, to congratulate you upon the apparent approaching close of this case. It has been one of great strain upon you, great inconvenience to you, as well as great strain upon the eminent gentlemen who have represented the people and the defense; and we all are glad, I am sure, that you are at the apparent nearing of the determination. I also may state, gentlemen, that you are to be congratulated, and it is to be commended, upon your selection. Out of 150 names drawn from the body of the county of Onondaga, you are the gentlemen only who have passed the ordeal of the examination, and have been selected to stand, impartially and honestly, between the people of the state of New York and this defendant,—not because of your superior intelligence over that of your felloes, but because it appeared to the eminent and watchful counsel upon either side that, if your answers were truthful, you presented nearer a judicial, fair, and unbiased frame of mind, representative of the truth, and of making fair, logical deductions from the evidence which should be presented to you. You, gentlemen, in this matter are to be the sole judges of the facts, uninfluenced by any thought which you may have of any opinion which the court may entertain; but it is your sworn duty, when you have ascertained these facts, fairly deducible from the evidence, to apply such deductions fearlessly, whatever may be the result. If I, gentlemen, erroneously state to you the law, the appellate courts will speedily and certainly correct such error; but if you err,—if you make a mistake in your decision, the people of the county of Onondaga and the defendant at this bar are practically helpless. In this matter, gentlemen, the state of New York has no revenges to perpetrate. In this matter, gentlemen, Fitzsimmons has nothing fairly to present to you extraneous to this case, excepting such presentation as is deducible from the evidence. The law has thrown around the person of a defendant charged with crime many safeguards, including, with others, the presumption of innocence,—that his guilt must be established beyond a reasonable doubt; and, when the facts are ascertained by you, if there exists such doubt,—if the evidence fails to overthrow such presumption of innocence,— you will acquit; but, if they point with certainty, subject to those rules which I have and shall lay down for your guidance, to his .guilt, you will as fearlessly find that fact.

Gentlemen, I incorporate as a part of my charge a direction to you, that you may understand, at the outset in this important matter, your position, from the charge of the eminent criminal lawyer and justice, Mr. Recorder Smythe,- in a recent important -case. The judge uses the following language:

“ Let us look for a moment and see how humane the criminal law is. At times it is very much misrepresented by people who •do not understand it. This defendant, like all others occupying the position he doés, or even when charged with the commission •of the lowest grade of crime known to the law, is entitled to have his guilt established to the satisfaction of a jury, of his own selection, practically, by what the jury shall esteem to be competent evidence, satisfactory to them, and which establishes his guilt beyond every reasonable doubt,—not every imaginary doubt, not •every unsubstantial doubt, but beyond every reasonable doubt. Twelve men must agree before a verdict can be rendered, either .against him or in his favor. He is entitled to the benefit of the presumption, which the law extends to him, and to every other man charged with crime, that he is a man of good character, and that he is innocent of the charge preferred against him. The latter presumption continues to exist from the commencement of the case down to the time you render a verdict against him, if you should render such a verdict. That presumption must be over-come by the prosecution by such evidence as will convince your minds of his guilt beyond a reasonable doubt. * * * With so many safeguards, and there are many others surrounding this man, surely, where he has had all the advantages and benefits ■which the law gives him, if the evidence in the case satisfies a jury of his guilt, there should be no hesitation on their part to say so; if it fails to satisfy them beyond a reasonable doubt, or if they entertain a reasonable doubt of his guilt, the law says they must acquit.”

How, gentlemen, this outlines, in the beginning, the position which you occupy, between the people and this prisoner. You will remember the occurrence on the night in question, as it has been related to you,—the facts that occurred in the opera house : That the deceased, Riordan, came to the opera house a little before ten; that, a few hours afterwards, he was taken from there in a dying condition, and, subsequently in the morning, died. You have heard the description of those who were present as to what occurred upon the autopsy. How, the claim of the people, " ' gentlemen, in brief, is that this man Eiordan’s death was caused by a blow struck by the defendant,—struck while engaged in a contention, or fight, as I shall define it further on ; or struck while engaged in the commission of an assault and battery, as I shall define it; or without due regard and circumspection, if you should find that the acts were lawful; that the immediate cause or the necessary cause of this homicide was the acts of .the defendant; that the ultimate or ordinary or probable consequence of that act was the death of Eiordan ; that that act was perpetuated with such criminal intent as is necessary under the statute to complete the crime charged. The contention of the defendant is that this was an excusable homicide ; that his death was an accident which happened under circumstances which I shall explain to you soon, defined as an excusable homicide; and that these men were engaged in a lawful encounter, simply a contest of power and of skill; and that this was simply one of the circumstances which is liable to follow.

Mow, gentlemen, it will become your duty to determine, and it is also my duty to explain to you, as best I can, the meaning of the term “ manslaughter,” and define its meaning in the various degrees. To do this gentlemen,—and you will bear with me,— is not the work of a moment. I shall have to arrive at this, to make it intelligent to you, in a measure, by the process of elimination,—by showing to you what it does not mean. The crime of manslaughter is the oldest homicide known to the law. Early in the English statutes,—a law from which our law is derived,— manslaughter was the only kind of homicide known ; and it was not until the reign of Henry VIII. that distinctions were made. And the first distinction, as a matter of historical interest, was removing what was termed the benefit of clergy from those who had committed a homicide with premeditation and malice aforethought ; and here was the first distinction that separates the intentional from the unintentional homicide. Now, gentlemen, in-view of the source of our law, in view of the sanctity in which all the English speaking people view human life, it was the undoubted intention of the framers of the present Penal Code, under which you are to act,, to include somewhere within its covers, a description of the punishment of every crime of homicide not excusable or justified. Now, gentlemen, what is justifiable homicide ? I shall speak of this very briefly, because I understand, or I do not understand that it is seriously contended, or contended at all, that this is a case of justifiable homicide; and I will say briefly that section 204 and 205, defining justifiable homicide, define cases where a person is deprived of his life in resisting or fleeing from a public officer in the administration of justice ; that section 205 briefly, and in a general way, defines those cases where you are acting in self-defense of your person or property, or the property or persons of your family. Mow, gentlemen, I have hastily indicated to you what justifiable homicide is. Mow, I want to call your attention more carefully to what excusable homicide is; and I want to read this slowly to you, and I intend, if I do not overlook it, to read it to you again, because it is within the five lines that I read to you that this defendant must find the antidote for the position in which he is in, if it is to be found; and, if it is contained within this section, it is as ample as if it extended from one cover of the book to the other:

“Homicide is excusable when committed by accident and misfortune in lawfully correcting a child or servant (of course that is not this case), or in doing any other lawful act, by lawful means, with ordinary caution and without any unlawful intent.” Pen. Code, § 203.

Gentlemen, I read this to you again, leaving out the matter in regard to the child :

“Homicide is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means, with ordinary caution and without any unlawful intent.”

If you find, gentlemen, that the defendant’s acts place him within the protection of this section, acquit him. Eliminate from this any of the elements which I have read,—in doing any lawful act, using lawful means, using ordinary caution, with a lawful intent,—eliminate any one of those elements, and that section no longer protects.

I have shown you, gentlemen, what justifiable homicide is. I have commented upon what excusable homicide is. I am now going to define to you—because, as I approach the définition of manslaughter, you will see the necessity of the course—what murder in the first degree is, and I read:

“Murder in the first degree is the killing of a human being, unless it is excusable or justifiable, when committed, either from a deliberate or premeditated design to effect the death of the person killed, or another.”

And then follows a definition which is not important to call your attention to, except by way of explaining why I omit it. The commission of the act, or the death of a person while engaged in the commission of, or attempted commission of, a felony or of arson, in the first degree.- The elementary principle or central idea of murder in the first degree is an intent to kill,—a premeditation. How, gentlemen, I define to you from this statute what murder in the second degree is: Where there is an intent to kill, but without premeditation and deliberation. How, gentlemen, I have defined to you justifiable homicide, excusable homicide, murder in the first degree, which is committed with intent and with premeditation, murder in the second degree, which is committed with intent, but without premeditation. How I am in position to define to you what manslaughter is:

“Manslaughter, in a case other than one of those specified in sections one hundred and eighty-three, one hundred and eighty-four and one hundred and eighty-five (those are the sections in defining murder in the first degree and second degree, and the killing of a person while engaged in a duel), in a case other than the one specified in those sections, homicide not justifiable or excusable, is manslaughter.” Pen. Code, § 188.

So, as I say, going back to the origin of things, gentlemen, it was the intention of the framers of this Code to provide a definítian and a punishment for every kind of homicide not excusable or justifiable; and every kind of homicide not excusable or justifiable which is not murder in the first or second degree, or a death ensuing while engaged in a duel, is manslaughter.

Now, gentlemen, I will define you at this time what manslaughter in the first degree is :

Such homicide is manslaughter in the first degree, when committed without a design to effect death (the moment that you incorporate into the person’s intention a design to effect death, the crime no longer is manslaughter, but is murder in one of its degrees): First, by a person engaged in committing or attempting to commit a misdemeanor, affecting the person or property, either of the person killed or of another. Second, in the heat of passion, but in cruel or unusual manner, or by means of a dangerous weapon." Pen. Code, § 189.

The last census contemplates a case where the prisoner or the defendant acts in the heat of passion, in a cruel or unusual manner, or with a dangerous weapon. I think that one of the requests of the defendant in this case is to charge the evidence does not show the commission or manslaughter in the heat of passion, or homicide in the heat of passion, or in a cruel and unusual manner by means of a dangerous weapon ; and I so charge.

Now, gentlemen, in ascertaining whether this defendant was guilty of the crime of manslaughter in the first degree, you must first satisfy yourselves, beyond a reasonable doubt, of the fact that the homicide—that the death of Eiordon—was caused by the act of the defendant." If you find that as an ultimate and probable consequence, giving the defendant the benefit of every reasonable doubt and the presumption of innocence, then the question which presents itself to you sharply is whether, at the time of the act which caused this homicide, Fitzsimmons was engaged in the commission, or attempted commission, of a misdemeanor; for, if he was, it is your duty to find him guilty. Now, gentlemen, this depends upon the answer which you give to two inquiries: First, was Fitzsimmons at the time engaged in a contention, or fight, within the meaning of the statute ? If he was, and if his acts caused his death, your verdict will be guilty. If you find that such is not the fact, then you will approach the question of whether he was engaged in the commission of an assault and battery. Now, gentlemen, with reference to this matter of whether he was engaged in a contention or prize fight, section 458 óf the Penal Code reads as follows:

“A person who, within this state, engages in, instigates, aids, encourages, or does any act to further a contention or fight, without weapons, between two or more persons, or a fight commonly called a ring or prize fight, either within or without the state (and then follows in regard to sending a challenge), is guilty of a misdemeanor. ”

I repeat to you the latter part of the section:

“ Or does any act to further a contention or fight, without weapons, between two or more persons, or a fight commonly called a ring or prize fight.”

This statute is peculiar, and has received very little, if any, judicial construction, as I understand it. And, in considering this statute, gentlemen, and applying it to the facts, you are not to be governed by any phraseology of the prize ring, as we understand it by rumor; but you are to be governed by the same rules and the same application of rules or interpretation of rules that you would use in any minor transaction, bearing in mind the purpose of the statute itself. We know, by reputation, at least although it is not in evidence, what ordinarily, in the minds of the public, constitutes a prize fight. It is for you to say whether, in using the words which I have read,—“ a contention or fight without weapons between two.or more persons, or a fight commonly called a ring or prize fight,”—it was the reasonable intention of the framers of this act to provide against the occurrence of something beyond and something else besides what is indicated in the last clause that I have read to you, or whether the first is merely explanatory of the latter. Bearing in mind, as I charge you, gentlemen, that, growing out of the early law in this matter, one of the things which was considered unlawful in a fight or contention—■ one of its elementary principles, if I may so characterize its evils —was the gathering together of people, and the tendency to create a disturbance and a breach of the peace.

Now, gentlemen, with the suggestions, it is for you to say, fairly, within the evidence, what occurred there. The fact that these men wore gloves or the fact that they didn’t wear gloves, the fact that they called it this or that, does not govern you; but the honest, plain English of that statute, and your sworn duty and your reason, as men of affairs.

Now, this is the contention of the defendant in this regard : that this was simply a trial of athletic skill, lawful in itself, and ordinarily not tending to harm. It is fairly to be inferred from their contention (what is a .matter of common knowledge) that in any athletic contest, exhibiting powers of skill, there is necessarily involved an element of danger. Now, gentlemen, if you should find that this was not a contention or fight, within the meaning of the statute, you are next to consider, assuming, as I have suggested before, that you find that the homicide was caused by the act of the defendant, whether the defendant was engaged in the commission, or attempted commission, of a battery upon the person of Biordon. An assault in the third degree is a sort of general description of other assaults not included in what I called assaults in the first and second degrees ; which, in brief, defines those serious assaults which threaten or attempt the taking of human life, but unsuccessfully, or which attempt doing to the person assaulted grievous bodily harm. It is what is known in ordinary parlance as an assault and battery. Now, gentlemen, if you find this homicide is traceable directly and fairly to the act of the defendant, and you find at that time, within the definition which I have laid down to you, that he was engaged in the commission of an injury, or an assult in the third degree, it will be your duty to find him guilty. Now, gentlemen, this depends largely upon the fact of the element of consent. It may be assumed at this point that Eiordon and Fitzsimmons mutually agreed to engage with each other in these contests. Now, gentlemen, consent is sometimes an excuse for crime; at other times it is not. It is an excuse for larceny, unless your property is obtained by trick ; and then it is a serious question whether you consent. ín other words, a prisoner cannot be convicted of larceny if you consent that he should take your property. It is a necessary element in the crime of rape, unless perpetrated upon the person of one so young that she cannot, in the eyes of the law, consent; because the moment that you have the consent of the female it ceases to be rape. But there are other crimes to which the parties cannot consent to their commission; and, in considering this question, gentlemen, as applied to this case, you are to consider—First, whether, in fact, Eiordon did consent ro receive such a blow, if one was given; and, second, whether he had the legal right to so consent if, in fact, he did. Did Eiordon consent to receive whatever was in store for him in this game, if it was a game? Did he take his chances, whatever might be the consequences, or did he only consent to such treatment, to such consequences, to such acts, on the part of defendant, as would ordinarily be the result of that contention or game? Was it the intention of Fitzsimmons, at the time this blow was struck, if you should find that it was struck, to strike upon the person of Eiordon a disabling blow, one intended for the purpose of doing him injury beyond what he reasonably expected or consented to when engaged in the contest? Now, gentlemen, assuming that you should find this fact with the defendant, did Eiordon have the right to consent to have his life taken, or to have this injury or receive this blow ? The public is a party to all these transactions, and it has an interest which the parties to the transaction cannot eliminate. And I read to you, gentlemen, briefly, from an article on this subject of consent:

“ In some cases of criminal injury to individuals, a lack of consent of the individual is not always a necessary element of the crime. Homicide, mayhem, and battery may be committed, though the individual injured consented to the injury. The reason for this is clear. The public has an interest in the personal safety of its citizens, and is injured where the safety of any individual is threatened, whether by himself or another- * * * A game which involves a physical struggle may be a commendable and manly sport, or it may be an illegal contest. * * * This depends upon whether it is a game which endangers life. Thus, in the prosecution for a death which was caused accidently in playing the game of football, it was left to the jury to say whether the game was dángerous ; for, if so, consent on the part of the players to submit to what the game had in store for them would not protect a player from prosecution."

In other words, gentlemen, nine men, or whatever constitutes a team of football, cannot lawfully engage in a contention upon the green with the idea that the result may terminate in the death or serious injury of one-half of them ; -but, if the rules of the game and the practices of the game are reasonable, are consented to by all engaged, are not likely to induce serious injury, or to end life, if then, as a result of the game, an accident happens, it is excusable homicide.

“No rules or practice of any game whatever can make that lawful which is unlawful by the law of the land, and the law of the land says you shall not do that which is.likely to cause the death ■of another.”

Now, gentlemen, I have defined to you what constitutes manslaughter in the first degree. There must, first, be the fact of homicide; there must, second, be the fact that you find that the defendant was at that time engaged in the commission either of this contention or of an assault and battery.

Now, gentlemen, before you can convict the defendant of the crime of manslaughter, there is another element almost always presented, and an important element, to which I shall now call your attention; and that is, the element of intent. It is not necessary, gentlemen, that the defendant intended to violate the law. The law presumes that every person knows its provisions. It is certainly not necessary that the defendant should have anticipated the consequences of his acts, if he committed them; but you must find an intent to do the unlawful thing in question,—the specific act,—to fight, contrary to the statute, to commit a battery on Riordon; that is, that there was intent not to violate section 488, section 458, or whatever the number was ; not an intent to commit an assault and battery with the idea that he knew that he was committing it; but an intent to do the act which constituted a violation of those provisions. Now, gentlemen, this fact of intent is proved like any other fact in the case. You may infer this fact from other facts in the case; and the defendant is presumed, as has been suggested during the trial, to intend the ordinary and probable consequences of his acts. Upon this subject I shall read to you, gentlemen, and incorporate as a part of rhy direction to you, from the opinion of the late Mr. Justice Ruger, in the case of People v. Conroy:

“Whatever intent is made an element in determining the character of an act, it is in accordance with our general observation and experience to infer its existence by reference to the laws which have been usually and generally found to control human conduct. Indeed, this is the only method by which the intent can be made to appear. The intent is the secret and silent portion of the mind and its only visible physical manifestation is in the accomplishment of the thing determined upon., The individual whose intent is sought to be ascertained may remain silent, or if he speaks may and probably will, if he has crime to conceal, speak untruly; and thus the mind is compelled, from the necessity, to revert to the actual physical manifestations of the intent, exhibited by the result produced, as the safest, if not the only, proof of the fact to be ascertained.” 97 N. Y. 77.

As has been stated elsewhere, men who contemplate, or who have perpetrated a crime1, do not proclaim, as a rule, their guilt, or their criminal intent. Now, I desire, gentlemen, before I leave this, to again call your attention that you are to find this question of intent, if it is to be found, like any other fact, fairly inferable from the other facts in the case, and from all the evidence; and it is an intent, not directly, gentlemen, that Fitzsimmons supposed he was going to kill Riordon (for, as I have suggested, the inonent you find that, it is elevated into a more heinous crime), not that he intended specifically to violate this section or that section in regard to the assault and battery, but did he intend to do the act which you find, if you do find, constituted a violation of those sections. I call your attention in this connection, as it seems to me in place at this point, to two or three lines from the opinion of the'court in the case of People v. Wiman, in which the following language is used:

“It is undoubtedly true that, in order to constitute a crime, the doing of the act prohibited, with the intent to do the act is sufficient, although the party may not be aware of the fact that he is-transgressing the law.” 32 N. Y. Supp. 1045. '

Now, gentlemen, if it appears that a crime has been committed, and you should not be satisfied by that preponderance of evidence satisfactory to your minds that the defendant is guilty of manslaughter in the first degree, under the definition which I have-given you, but you should find that the facts constitute all the elements of an assault in the second degree, or manslaughter in the second degree, as I shall define them, you have the right, under the provisions of the Code, to find him guilty of manslaughter in the second degree; but you are not to find a lower degree, unless it contains in itself—unless the evidence contains in itself—all the elements necessary to constitute that crime, the same as if he were placed upon trial for that crime, without reference to the one with which he is charged.

Now, gentlemen, manslaughter in the second degree is defined as follows:

“Such homicide is manslaughter in the second degree, when committed without a design to effect death, by a-person committing or attempting to commit a trespass or other invasion of a private right, either of the person killed or of another, not amounting to a crime; or, second, in the heat of passion, but not by a dangerous weapon, or by the use of means either cruel or unusual.” Pen. Code. § 193.

Dropping from the cruel means suggested in the former section in relation to manslaughter in the first degree, and the use of a dangerous weapon, simply a case of death in the heat of passion. And I am asked, in the ninth request to charge, by the defendant, that the evidence does not show a crime, within the meaning of those two sections; and I so charge you.

The third subdivison, relating to and defining manslaughter in the second degree, reads as follows, and to which I call your attention :

“Such homicide is manslaughter in the second degree (I read from the beginning of the section), when committed,” etc., “by any act, procurement, or culpable negligence of any person which according to the provisions of this chapter does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.”

In other words, gentlemen, this seems to be a sort of blanket provision, covering those cases of homicide not excusable or justifiable, and not defined in any of the sections relating to-murder or manslaughter in the first degree, or previously provided for in the section in relation to manslaughter in the second degree; and it covers, as I charge you, the involuntary manslaughter of the common law, which contemplates a death without malice, without intent, committed by a person engaged in a. lawful act, by his carelessness, by lack of due caution and circumspection. How, the ordinary instances of cases of this kind are : cases of reckless driving, of throwing rubbish from roofs, and the-accidental discharge of loaded firearms, where there was not only unlawful intent, in the sense that a person intended to commit a misdemeanor—simply intended to commit the act itself which was perpetrated or committed. How, gentlemen, if you ahould arrive, under the definitions which I have given you, at a consideration of whether the acts constitute a crime under this subdivision, you have not necessarily (and I place it squarely upon the record so that the defendant can have the benefit of it) to find a criminal intent, in the sense that you must find an unlawful intent to commit a misdemeanor, in the previous section. A person intends the natural and ordinary consequences of his acts; and, in the commission of an act of gross carelesness, or acting in a lawful pursuit without due circumspection, you have only to find the intent to prepetrate that act, and the lack of care-in its consummation ; and the degree of care which you must find the defendant should exercise is one commensurate with the occasion and the danger. In other words, what would be due care in your driving your horse rapidly in the town of Olay, where-no person was in sight, might# if you ran over a child or woman, be found by a jury to be gross carelessness in the city of Syracuse. You are to consider, in determining this question, the position of the parties, their physicial strength, their skill or lack of skill, the effect which one of these blows (if you find that it was a blow which caused this'trouble)—the effect which could be accomplished by the use of a skillful blow; and to find, from the circumstances in this case, to what extent the defendant knew his own strength, and his power to accomplish a result which he desired. Hot (again cautioning you for a moment, gentlemen) that he was intending to kill Eiordon; but, knowing his own skill, under all the surrounding circumstances of that occasion, did he intend to give this deceased a blow which would injure him seriously for the time being,' or did he strike him with such a disregard of human life and safety, without due circumspection and caution, taking into consideration t hat this is an athletic performance ? If you should so find, yon can find him guilty of manslaughter in the second degree.

How, gentlemen, to summarize, did the act of Fitzsimmonscause the death of Eiordon? Was his death caused while Fitzsimmons was engaged in the commission of a fight, prohibited by the statute? Was it committed - while he was engaged in the commission of an assault in the third degree ? To find that you must find an unlawful intent (not an intent which necessarily ■supposes the results—-which necessarily supposes that Fitzsimmons knew what would be the result—nor that he knew that he was violating the law), but did he intend to do the act which you find, if you ■do find, was a violation of the law ? If you should find in favor of the defendant (and, in passing, I would say you are to consider the nature of this contest of physical skill; you are to consider the question of Riordon’s consent; you are to consider whether, in fact, he did consent. If he did consent to take whatever was in store, had he the right, under the definitions I have given you, to. so consent ? )—if you find for the defendant under those definitions, you may then, as I have suggested, consider whether this game (if you find it was lawful, or Riordon’s consent excused this battery, or this was not a contention or fight; within the meaning of the statute)—then you are to consider: Was this act done with due caution and circumspection; due care, considering all the probable consequences ?

How, gentlemen, I am very nearly through. There is one matter of importance to which I desire to call your attention, and, as I stated at the beginning, I am going to again, at the expense of losing the connection of my remarks, define to you- excusable homicide:

■ “ Homicide is excusable when committed by accident or misfortune, in doing any lawful act, by lawful means, with ordinary caution and without unlawful intent.”

The act must be lawful; the means must be lawful; the caution must be ordinary; and the intent must be lawful.

How, gentlemen, at this connection, I desire to call your attention to what has been suggested before you several times, and that is this question of reasonable doubt. It is doubtful whether any better definition can be given of this than the words of Mr. Recorder Smythe. It does not mean an imaginary, speculative doubt, it means a reasonable doubt, upon which you would act, in the ordinary transaction of human affiairs. But, gentlement whatever doubt you have must grow out of the evidence which has been placed before you—either in the evidence produced affirmatively to your senses, or by the absence or lack of evidence to satisfy your minds as to the guilt of the prisioner. How, gentlemen, a good many experts have been sworn in this case; and I desire to speak briefly upon that class of evidence. In some cases which are presented, this evidence demands the highest respect possible for us to give to scientific thought and careful investigation and research and training. This is particularly true in those cases in detecting poisons. When witnesses testify from their observation as to facts which they themselves saw, you have to give their evidence such weight and such credence as you believe it is entitled to from the apparent intelligence, or lack of intelligence, of the witness; apparent interest, or lack of interest; bias, or lack of bias. But, when you consider the evidence of experts, you may take into consideration the extract which I read from the opinion of Mr. Justice Peckham, and give it such weight as to you seems proper, where he says:

“Expert evidence, so called, or, in other words,evidence of the mere opinion of witnesses, has been used to such an extent that evidence given by them has come to be looked upon with great suspicion, both by courts and juries; and the fact has become very plain that, in any case where opinion evidence is admissible, the particular kind of evidence desired by any party to the investigation can be produced by paying the market price therefor. We have said, also, that the rules granting the opinions of experts should not be unnecessarily extended.”

Where these gentlemen speak upon a matter purely scientific, a matter not open to common observation, they are entitled to great weight; and you, in any event, can give such weight as you believe they are entitled to, under all the circumstances of the case. But you can also consider the comments of the justice, the judge of the court of appeals, that a man, a lawyer, in prosecuting or defending a case, can purchase as many expert witnesses as his client has the cash to pay.

Mow, gentlemen, with these remarks I have endeavored to, as fairly as I could, perform my duty, unaided by that best and rarest teacher, experience. I believe that the district attorney has honestly, faithfully and fairly tried to do his duty. It certainly is evident to every one of your number that, surrounded as the defendant has been by that brilliant array of counsel who have looked after his interest, he has been carefully protected.

Mow, gentlemen, the responsibility has shifted from those gentlemen, and from myself, to you ; and, in your deliberations, I trust you will only be governed by your oaths and by the same motives which have governed me in the performance of my duties, and that is to perform my duty as best I can to the people of the county of Onondaga, and to the prisoner at the bar.

Mow, gentlemen, the defendant has submitted several requests to me to charge. The first and second requests I refuse. The third is refused, except as heretofore charged. The fourth request, that the accidental killing of the deceased does not constitute the crime of manslaughter, I charge, with the modification which I have heretofore given. The fifth request I refuse, except as heretofore charged. The same with the sixth. The seventh, I am asked to speak as to certain proof in the case, which I refuse to charge. I leave the facts with the jury. The eighth request I refuse, excepting the last portion of the request, that the killing was in the heat of passion, and in a cruel and unusual manner, or by means of a dangerous weapon. That it was not, I so charge. The ninth request I have already charged, ■excepting the last part of the request, “ by any act, procurement, or otherwise,” which includes the third subdivision of the definition of manslaughter in the second degree. That I refuse to charge. The tenth I refuse. The eleventh I refuse. The twelfth I refuse, except as heretofore charged. The thirteenth, that, if this homicide was committed by the defendant by accident or misfortune, the defendant is not guilty of any crime. I charge that, with the addition : if you believe it was within the definition given you of excusable homicide. The fourteenth request that if, after considering the evidence, there remains in the mind of the jury a reasonable doubt as to whether the death of Riordon was caused by a blow from the defendant, or as to whether it was caused by excitement and exertion of the deceased, and his habits of- life, the jury must give the defendant the benefit of the doubt, and the defendant must be acquitted. I so charge. The fifteenth request I refuse, except as heretofore charged.


source: Caselaw Access Project

author: Garretson, J.

license: Public Domain

text:
    The People, Resp’t, v. Jacob Molinet, App’lt.

      (Court of Sessions, Queens County,

      Filed June, 1895.)

    Jury—Waiver.
    An express waiver by the defendant of a jury in a- court of special sessions, at the time of interposing his plea, does not aflect his right subsequently, before the hearing of testimony, to demand a jury.
    Appeal from a judgment of conviction, in a court of special sessions, of assault in the third degree.

      Clarence Edwards, for app’lt; Daniel Noble, Dist. Atty., for People.
   Garretson, J.

The defendant was convicted in a court of special sessions of the crime of assault in the third degree, and was sentenced to pay a fine of $20, or, in default of payment, to-be imprisoned in the county jail not exceeding twenty days. He paid the fine, was released from custody, and has since appealed from the judgment to this court.

Two grounds of alleged error are assigned why the judgment should be reversed,—one that the evidence was insufficient to justify the conviction; and the other that the defendant was refused a trial by jury after he had seasonably demanded it. We cannot say, from the return of the police justice, that the conviction was not right upon the merits of the issue. We are constrained to say, however, that the defendant was deprived of a substantial right by the refusal of his demand for a jury trial. The return shows that, upon being brought before the magistrate and arraigned, the defendant pleaded not guilty, and was asked if he elected to be tried by the court without a jury, to which he replied in the affirmative, and thereafter made a like affirmative answer, both personally and by counsel, to the question of the court if he “waived his right to a trial by jury.” The case was thereupon adjourned to a later day, when, and before any testimony had been taken, the defendant, by his counsel, demanded a jury trial, which was refused by the court upon the ground that the defendant had on the previous hearing demanded and elected to be tried by the court without a jury, to which ruling the defendant excepted. In a case which courts of special sessions have exclusive jurisdiction to hear and determine in the first instance, when the defendant is brought before the magistrate, the charge must be distinctly read to him, and be must be required to plead thereto. Code Cr. Proc. § 699. This first step in the procedure is had in the court as such, and not before the magistrate, and each succeeding judicial act to conviction 'and judgment continues to be the act of the court of special sessions. Upon a trial by jury, the court must proceed to try the issue. Id. § 701. Ho election or waiver, other than a failure to obtain the certificate of removal, is necessary to give the court jurisdiction to try the case. If the defendant demands a trial by jury, the court must summon one. If he fails to make such demand, the court must proceed to try the case. People v. Green, 4 N. Y. Cr. R. 442. The case cited arose since the enactment of the Code of Criminal Procedure. Under the prior statute it was held that the court could not acquire jurisdiction to try a prisoner without a jury for an offense unless it affirmatively appeared, in the proceedings had before the trial, that he expressly waived his right to a trial by jury. People v. Mallon, 39 How. Prac. 454. Such is not the law now. People v. Green, supra. It is further provided by the Code •of Criminal Procedure (section 702) that before the court hears any testimony upon the trial the defendant may demand a trial by jury. If it be now the law (as it undoubtedly is) that no election to be tried without a jury and no waiver of a jury trial is necessary, then such election and waiver are but an idle ceremony, and do not militate against or affect the express right which is afforded to the defendant by section 702 above cited. The magistrate, in his return, refers to the case of People v. Riley, 5 Parker, Cr. R. 401, as an authority sustaining his ruling. The case was decided in 1863, under former statutes, some of which related specially to the city and county of New York. Title 2 of part 5 of the Code •of Criminal Procedure, which relates to proceedings in courts of special sessions in that city and county only, and is not applicable to the other counties of the state, has, however, embodied substantially the form of procedure considered and laid down in the case of People v. Riley, above referred to. We are of the opinion that the right of the defendant in the case at bar to a trial by jury continued unaffected and available to him until testimony actually taken upon the trial, notwithstanding his previous election and waiver ; that the refusal of the defendant’s demand for a jury trial was a serious prejudice of his substantial right; and that the judgment upon conviction should be reversed. Judgment reversed.


text:
    The People, Resp’t, v. Morton S. Fuerst, App’lt.

      (Court of Sessions, Queens County,

      Filed June, 1895.)

    Disorderly person—Arrest without warrant.
    Where the defendant is arrested without a warrant and the complaint is not prepared until after his arrest, a conviction of being a disorderly person cannot stand. • '
    Appeal from a judgment of conviction of being a disorderly person.

      Clarence Edwards, for app’lt; Daniel Noble, Dist. Atty., for1 resp’ts.
   Garretson, J.

This is not a criminal action, but a special proceedipg of a criminal nature. Code Cr. Proc. pt. 6, and designation in first line thereunder; People v. Walsh, 33 Hun, 346. The policb justice acts as an officer or magistrate, and not as a court. Code Cr. Proc. § 900. The defendant has a right of appeal to this court from the judgment upon conviction. Code Cr. Proc. §§515, 749, as amended by chapter 372, Laws 1884. The case of People v. Walsh, supra, decided in September, 1884, overlooked the amendment of 1884, above cited. After careful examination'of the books, we fail to find that a “disorderly person,” as defined by section 899 of the Code of Criminal Procedure, is, in contemplation of law, guilty of the commission of either a misdemeanor or a felony. While the several specifications set forth in the subdivision of the section undoubtedly refers to acts and omissions, done or intended, which are detrimental to the peace, good order, economy, and general welfare of the state, and some of which are also criminal offenses, yet the proceedings provided to be had thereunder, as respecting disorderly persons, do not lead to a judgment calling for the imposition of a fine or corporal punishment,, except incidently, and as the result of a failure to give the security required by the following section (902). The object thus sought to be accomplished is suppressive prevention, or regulative rather than punitive. People v. Sadler, 97 N. Y. 146. It has been well said that the examination and punishment of offenses in a summary manner by magistrates, without the intervention of a jury, is founded entirely upon special authority conferred and regulated by statute. No new offense is cognizable in that manner unless expressly made so by statute ; and all the proceedings under an authority so created must be strictly conformable to the regulations prescribed by law in each instance, from which all their force is derived. Barb. Cr. Law (2d ed.) p. 586, chap. 3. In the proceeding under review the statute calls for a complaint on oath, by which the proceeding is instituted, and upon which is to issue a warrant requiring a peace officer to arrest the defendant and bring him before the magistrate for examination. Code Cr. Proc. § 900. It would be manifestly improper and unprecedented to arrest without a warrant, if the alleged offense were referable to the first subdivision of section 899, which is directed to “persons who abandon their wives and children without adequate support, or leave them, in danger of becoming a charge upon the public, or who neglect to provide for them according to their means,” and, if so, there can be no justification for a departure from the plain requirements of law and practice in the case of any alleged disorderly person coming within any of the specifications set forth in the various subdivisions of the section. It is true that some of the specified acts which bring the alleged offender within the definition of a “ disorderly person ” constitute positive crimes, such as common gambling and the lceeding of bawdy houses, and render him amenable to prosecution therefor (Pen. Code, §§ 322, 344), but in such cases he is to be arrested and prosecuted in the usual and ordinary mode provided by law where a felony or misdemeanor has been committed. People v. Sadler, supra. The return shows, in the case at bar, that the defendant was arrested by the officer as a “disorderly person” under the section cited, and taken before the magistrate, where for the first time, and while in actual custody, the complaint was prepared and sworn to and arraignment made. We have thus a clear and unquestioned case presented as to whether the magistrate, proceeded irregularly and in violation of the defendant’s rights.

We would also call attention to the fact that among the several classes of quasi criminal offenses to be found in the Code of Criminal Procedure under the general designation of “ special proceedings of a criminal nature ” (part 6), the right to arrest without a warrant is expressly conferred iu cases of vagrancy only, (sections 890, 894, 895), and it may, therefore, be assumed that the legislature intended to restrict this right to the cases in which it was specifically authorized. “ Expressum facit cessare taciturn.” We are of the opinion that this special proceeding must be instituted by complaint and warrant; that section 177 of the Code of Criminal Procedure, which allows a peace officer to arrest a person for a crime committed or attempted m his presence, does not apply thereto; and the motion of defendant’s counsel for defendant’s discharge, made upon the arraignment, should have been granted because addressed to the violation of a substantial right of the defendant; and that the judgment upon conviction should be reversed. Aside from the question of procedure which we have considered, it would seem doubtful if the “ fish pond game ” conducted by the defendant comes within the definition of an “ apparatus or device for gaming.” The common law defined “gaming” as a contract between two or more persons by which they agree to play by certain rules at cards, dice or other contrivance, and that one shall be the loser and the other the winner. Bouv. Law Diet. This “fish pond game” as conducted by the defendant invariably returned to the successful angler an article of some value for the money invested. While in some of the states all games upon the result of which the right to money or property is made dependent altogether upon skill or chance, or upon both, are classified under the general head of gaming or gambling, yet in this state a distinction has been made by statute between gaming and lotteries, as will be found by reference to chapters 7 and 9 of title 10 of the Penal Code. By section 323 a lottery is defined to be “ a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.” Inasmuch as the defendant’s “fish pond game” seems to involve no element of chance, and calls wholly for the exercise of skill, it is doubtful if it is subject to the inhibition against lotteries. In most instances the chances are that the anglers will be found to be unskillful, but that would not make the result of the angling dependent upon chance. It has been expressly held by the supreme court that the various provisions contained in chapter 9 of the Penal Code above cited relating to gaming were intended to prevent gambling in the ordinary acceptance of the term, by cards, dice, or other symbols of ■chance or hazard, in places more or less private or secluded, and which, in itself, without reference to any other element, was malum prohibitum and malum in se. People v. Todd, 51 Hun, 446; 21 St. Rep. 399. But whether the defendant offended against the statutes prohibiting gaming or lotteries we express no opinion and do not decide.

Our conclusion in this case will not embarass the officers of the law charged with the duty of detecting crime and bringing offenders to the bar of the courts for trial and punishment, nor from suppressing unlawful practices injurious to society and morals. The criminal law and procedure will be found entirely ample to the attaining of these objects. It will, however, we trust, serve to protect the citizen in his substantial rights, insure the observance of the forms of law in the class of cases of which the subject of this appeal is one, and discourage the wanton violation of the rights of personal liberty too often sho-wn in arrests made by peace officers in disregard of the statutory limitation placed upon their powers.

The judgment upon conviction should be reversed.

Judgment reversed.


author: Clute, J.

text:
    The People, Resp’t, v. Francis J. Brady, App’lt.

      (Court of Sessions, Albany Court,

      Filed June, 1895.)

    DlSOBDBKLY FEBSOa—FaIX/UBE TO SUFFOBT WIFE.
    Subdivision 1 of section 899 of the Code of Criminal Procedure does not apply to one whose wife is guilty of adultery.
    Appeal from a judgment, adjudging the defendant to be a •disorderly person for neglecting to support his wife, and requiring him to give an undertaking under subd. 1, section 901 of the ■Code of Criminal Procedure.

      Edward, J. Megan, for app’lt; Eugene Burlingame, Dist. A tty., and John T. Book, Asst. Dist. A tty., for resp’ts.
   Clute, J.

This is an appeal from a judgment of conviction under subdivision 1 of section 899 of the Code of Criminal Procedure, which provides:

“ The following are disorderly persons:
“ 1. Persons who actually abandon their wives or children without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.”

On the trial, the defense made to the charge was that the wife had been guilty of adultery, and the defendant offered to prove the fact. The police justice refused to receive the testimony, holding that, if true, it was no defense. For the purpose of considering the law question involved on this appeal, we are bound to assume that the charge made by the husband against the wife is true. The question is therefore-presented whether a husband is a disorderly person, under the statute, if he refuses to continue to support his wife if she is an adultress.

It is a well-settled, principle of the common law that if a wife is guilty of adultery, the husband may turn her away, and hq will not be liable even for strict necessaries which may be furnished to her by third persons while she is living separately. 2 Wait, Law & Prac. 330; 2 Bish. Mar. Div. & Sep. (ed. 1891) section 1228. There is nothing in the Code of Criminal Procedure which changes this rule of the common law and makes the husband liable absolutely, and at all events, whatsoever the fault or crime of his wife. A case arose in England in which the precise question we are considering was decided. Culley v. Charman, 7 Q. B. Div. 89. The defendant in that case left his wife because she had committed adultery, and was prosecuted for neglecting to support her. The counsel for the crown argued that the statute made a rule different from the common law, to protect the public from the support of his wife; but the court held not. Hawkins, J., said:

“ I do not think there is any need to cite authorities to show that a husband is not bound at common law to maintain a wife who has been guilty of adultery and who is living apart from him. The question is whether it was the object of this statute to impose a liability upon him, in such a case, that did not exist before. I do not hesitate to come to the conclusion that it was not, and that the order ought not to have been made. It seems to me impossible‘to suppose that the statute intended to cast on the husband the obligation of maintaining a wife who has committed adultery and gone away from him."

In the case of Rex v. Flintan, 1 Barn. & Adol. 227, it ivas held that a man is not liable to the penalty of 5 George IV., chap. 83, section 3, for neglecting and refusing to maintain his wife where she has left him and committed adultery, although he himself has been guilty of adultery since her departure. In the case of State v. Schweitzer, 57 Conn. 532, the defendant was prosecuted under section 3402 of the General Statutes of Connecticut, which provided that every person who shall unlawfully neglect to support his wife and children shall be sentenced to hard labor, etc. On conviction, an appeal was taken to the supreme court The conviction was reversed. Andrews, C. J., in the opinion, said:

“We think the court was correct in charging that adultery, if proved, was a sufficient defense. A husband may lawfully refuse to support on adulterous wife. 1 Selw. N. P. (Wheat & Whart. ed.) 205, 207; Gill v. Read, 5 R. I. 343; Hunter v. Boucher, 3 Pick. 289; Schouler, Dom. Rel. 91; 1 Bish. Mar. & Div. section 573."

In Carney v. State, 4 South. 285, a husband was prosecuted under a statute forbidding the abandoning of one's wife and child and leaving them in danger of becoming a burden to the public. The defense was the adultery of the wife. Judge Somerville, writing for the court, said :

“ The statute cannot be construed to make it criminal for one to abandon his wife under any and all circumstances. If she be guilty of adultery, as the evidence tends to show the defendant’s wife was in this case, he would certainly be excused in leaving her. * * * There can be no guilt where there is legal excuse or justification for the act charged.”

These cases establish that the defendant Brady is not bound to support his wife, under the circumstances disclosed in his offer of proof. It would be shocking to send a man to the penitentiary for the nonsupport of his wife if she is an adulteress. The obligations of the husband and wife are mutual, and the right to claim support depends upon the continued virtue of the wife. The honor of the family, the conscience of the community, and Christian teachings commend this rule. There is nothing in People v. Mitchell, 2 Thomp. & C. 172, which militates against this doctrine. In that case, in answer to a charge of nonsupport, the defendant put in evidence that he had begun a divorce suit against his wife, and that a judgment "in his favor had been reversed at general term, and that he had paid a certain sum of money. There was no offer, in the case, of any testimony to prove that the wife had been guilty of adultery, which distinguishes it from the present case, and the record in the divorce case, even if unreversed, was incompetent within the rule, resinter alios acta alteri nocere nondebet." The contention of the counsel for the 'people that the remedy of the husband, in a case like the one at bar, is to secure a divorce, and that until he procures one he must, under penalty of imprisonment support his wife, is not founded in reason, and is against the current of authority. No statute imposes this obligation upon him. The injustice of such a doctrine is apparent, when we recall that the husband in a divorce suit must not only pay his own lawyer, but his wife’s lawyer, and poverty is no answer to a motion for counsel fees, and, if he cannot pay the counsel fees awarded for the wife’s defense, his complaint will be dismissed. Cohen v. Cohen, 11 Misc. Rep. 704; 66 St. Rep. 336; Walker v. Walker, 82 N. Y. 260. If, therefore, the husband is without means for a divorce suit, unless he can defend himself against these proceedings by showing to the police magistrate the wife’s adultery, he must always give up his earnings to support a prostitute, or else remain a prisoner in the penitentiary. Judgment of police magistrate reversed, and defendant discharged.

Judgment reversed, and defendant discharged.


author: Adams, J.

text:
    John O’Malley, Pl’ff, v. People’s Building, Loan and Savings Association, Def’t.

      (Supreme Court, Ontario Special Term,

      Filed May, 1895.)

    1. Contracts—Building associations—Ultra vires.
    A building association cannot defeat its contract on the ground that, in making such contract, it exceeded the powers conferred upon it by the statute, where the powers exercised by it were incidental to those confer- * red and it has reaped the benefit of such contract, which does not contravene public policy, though it may have gone beyond the scope of the statute.
    2. Building association—Time for bringing action.
    Where the by-laws of a building association gives the company the right to sixty days after presentation in which to investigate the claim, the right to object to the bringing of an action within such sixty days is waived where, on presentation for payment of a certificate for shares of stock issued by it, it makes no objection to its validity, but only insists that the amount due thereon is less than the amount provided bv the certificate.
    - Action by John O’Malley against the People’s Building, Loan & Savings Association to recover the. sum of $500, alleged to be due on a certain certificate of five shares of stock issued by defendant to plaintiff.

      George L. Bachman, for pl’ff; Chester M. Elliott, for deft.
   Adams, J.

This case was tried before the court without a jury, upon facts which were virtually conceded; the contention of the defendant being that such facts do not constitute any cause of action in favor of the plaintiff. After a careful examination of the elaborate briefs of counsel, I find myself unable to concur in the view which the defendant’s counsel appears to entertain, and which he has attempted to fortify by the citation of numerous authorities. Briefly stated, my reasons are as follows, viz.:

The defendant, which is a corporation duly organized under the laws of .this state, upon the 2d day of September, 1889, issued to the plaintiff a certificate, duly authenticated, by the terms of which, in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed upon the back thereof, and the articles of association and by-laws adopted by said association, all of which are referred to and made a part of such contract, the said the People’s Building, Loan & Savings Association agree to “ pay said shareholder, or his heirs, executors, administrators, or assigns, the sum of one hundred dollars for each of said shares at the end of five years from the date (thereof).” It appears that the plaintiff paid his entrance fee, made his other payments, and in all respects complied with the terms and conditions printed upon the back of his certificate, or contained in the articles and by-laws of the association; and after the expiration of the term of five years, he duly presented his certificate at the office of the defendant, and demanded payment of the amount specified therein. This demand was met with the announcement that the plaintiff’s certificate entitled him to receive the sum of $370 only. The plaintiff refused to accept this sum, and brought this action to recover the full amount which he claims he is entitled to receive. In reading the certificate, I am unable to see how it is possible to give it any construction other than that of an absolute agreement upon the part of the defendant to pay to the plaintiff the full sum of $500 upon the expiration of five years from its date. There is nothing equivocal in its language, neither is it made to depend upon any conditions other than that the plaintiff shall make the payments which he undertook to make, and shall in all other respects comply with the rules and regulations of the association; all of which he has done, as has been stated. Why, then, should not the defendant be required to fulfill the obligation which it has assumed ?

The first reason urged upon the attention of the court is that, in entering into such a contract as the one under consideration, the defendant has exceeded the powers conferred upon it by tire statute. It is possible that in the management of its affairs the defendant may have gone beyond the scope of the statute, but certainly the powers exercised by it were incidental to those conferred, and inasmuch as it has reaped the benefit of the contract entered into, and there is nothing therein which contravenes public policy, the plainest rules of good faith require that it should be upheld. Arms Co. v. Barlow, 63 N. Y. 62; Raft Co. v. Roach, 97 id. 378; 1 Wat. Corp. pp. 600, 601, 605; Thomp. Bldg. Ass’ns, p. 257.

Another objection to any recovery by the plaintiff is that the action is prematurely brought; that, by the terms of article 19 of its by-laws, the defendant was entitled to sixty days after the presentation of the plaintiff’s claim in which to investigate the same, and determine what course to adopt in regard to it. It is doubtful if this claim is within the contemplation of article 19, but, upon the assumption that it is, the defendant undoubtedly might have availed itself of the opportunity to make further examination of the plaintiff’s demand, had it so desired ; but no such desire was manifested. The by-law reads: “ If the association desires further evidence of a claim than is furnished in the proof, it shall have the right,” etc. The proof furnished in this case was the certificate itself, which seems to have been entirely satisfactory, for upon its representation the officer to whom it was presented made no question as to its validity, but only insisted that the amount due thereon was $370, instead of $500. Apparently he desired no additional evidence, nor any extension of time in which to determine what course to pursue; and his acts amounted to a waiver of any right to now insist that the plaintiff’s cause of action has not accrued. Dohn v. Insurance Co., 5 Lans. 275; Kernochan v. Insurance Co., 17 N. Y. 428; Insurance Co. v. Gaddis. 10 Ins. Law J. 774.

But the proposition upon which the defendant lays more stress than any other is that the certificate which the plaintiff presented had not matured, or, in other words, it had not, at the time of its presentation, earned its face value, and that consequently the holder thereof was entitled to receive only such sum as it had earned. To maintain this proposition, attention is directed to the statutes under which the defendant was organized, as well as to certain of the defendant’s articles of association and by-laws. In considering this question, it may be assumed that the plaintiff, although he had not signed or read the articles or byfiaws, was bound by them so far as they conformed to the requirements of the incorporating statutes (Association v. Read, 93 N. Y. 474); but I am unable to find in either anything which can fairly be said to modify or, in any essential respect, vary the plain language of the contract. Indeed, as is claimed by the defendant, such a contract does not appear to have the express sanction of either the creative statutes or of the defendant’s articles or by-laws. Neither is any adequate provision to be found therein for their redemption; a condition of affairs which the defendant, in its circular issued under date of December 20, 1894, very frankly acknowledges. The case, therefore, is not that of a member of the association who avails himself of the privilege of withdrawing, as provided by section 7 of chapter 556 of the Laws of 1887, and then seeks to recover what his certificate of membership is fairly worth. If it were, I could understand how his rights might be affected by certain of the articles and by-laws referred to by counsel, and why it might be claimed, with good reason, that the plaintiff ought not to be permitted to maintain his action. Much less is the case one in which it can be claimed that whatever plaintiff is entitled to receive upon his certificate must be regarded as in the nature of a dividend, and, consequently, subject to the provisions of section' 7 of chapter 564 of the Laws of 1875; but, as has been already suggested, it is simply one where the defendant has issued to the plaintiff a certificate which, while it may in a certain sense constitute the person accepting it a member temporarily of the association, is nevertheless a plain, unqualified promise to pay to the holder, upon the expiration of five years, the sum of $500. And when that period expired, and the plaintiff presented his certificate, demanding its payment, it seems to me that whatever relation of membership he had theretofore borne to the association was thereby terminated, and he then became a creditor, clothed with the' same rights which would pertain to any other creditor. End. Bldg. Ass’ns, §§ 141-143; Association v. Silverman, 85 Pa. St. 394; O'Rourke v. Association, 93 id. 308; Wetterwulgh v. Association, 2 Bosw. 381; Englehardt v. Fifth Ward, P. D. S. & L. Association, 58 St. Rep. 92. It follows, therefore, that although'the defendant issued these certificates of “shares.” or stock, or whatever they may properly stand for, without making provision for their redemption, and with the knowledge that it was not possible .“ for the association to redeem the promises it made," and “ that under its plan of operation it was not possible for the shares to earn the amount they promised to pay,” it nevertheless has entered into a contract with the plaintiff which is a valid one; and, inasmuch as the defendant is confessedly solvent, it is also one which it can and should fulfill.

The plaintiff is therefore entitled to judgment for the full amount of his claim, with costs. If it shall appear,-when an effort is made to enforce the judgment, that the plaintiff will obtain relief beyond that permitted by the statute, the court possesses ample power to regulate the matter when its aid shall be invoked.


author: Pratt, J. Brown, P. J.

text:
    Asa L. Rogers, as Assignee, etc., App’lts, v. Charles E. Pell et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Assignment fob cbeditobs—Oobpobation.
    An assignment for the benefit of creditors to himself by the president of a corporation, who is authorized by its directors to execute an assignment to a proper person, is void.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Stedman & Larkin, for p’lff; Andrew Shiland, Jr., for def’ts Pell et al.; Cannon & Atwater, for def’ts Thomson et al.; Kenneson, Crain & Ailing, for def’ts Bppinger et al.

   Pratt, J.

The assignment under which, plaintiff claims is sought to be sustained by virtue of a resolution of the directors of a corporation, by which they authorized their president to nominate and execute to a proper person au assignment of all the property of the corporation. Thereafter he executed in the name of the corporation an instrument which purported to convey to himself as assignee the property which was afterwards attached by the defendants. The validity of the instrument is attacked on various grounds, one of which is that under the resolution the president could not lawfully execute a conveyance to himself. It is also suggested that the power to select an assignee was not one which the directors could delegate. We think it clear that in the selection of an assignee the corporation had a right to the unbiased discretion of its officer. That could not be had when he occupied the antagonistic positions of grantee and the active agent of the grantor. What would have been the result had the resolution left nothing to his discretion, and designated the president as the assignee, we need not, discuss. In that case it might be agreed that in substance the assignment was the work of the directors, and the president but a ministerial agent. But in the present case the assignment was the work of the president. We think the effort to vest the title in himself failed. It follows that the attachments were a valid levy on the property of the corporation, and that the order appealed from must be affirmed, with costs.

Dykman, J., concurs.

Brown, P. J.

(dissenting).—I do not concur in the conclusion of Judge Pratt that the assignment is void because made to the president of the corporation. The execution of the assignment was authorized by a resolution of the trustees, and the president empowered to select the assignee. Assuming that the selection of himself by the president as the assignee was not within the terms of the resolution, its execution of the assignment was not a void act. The president was not prohibited from being assignee by any rule of law or by-law of the corporation. If not authorized by the resolution, his selection was a thing the trustees could ratify, and, as they do not question the validity of his selection, I do not think creditors can successfully assail the assignment on that ground. The deed may have been voidable at the option of the corporation, but it certainly was not void. Neither do I agree with the contention that the assignment is void for the reason that the certificate of acknowledgment is defective. The testimony is u'ncontradicted that it was acknowledged in the state of New Jersey. The statute of this state does not require the certificate of acknowledgement to appear upon the assignment. All that is required is that it be acknowledged. Every fact, however, which is essential to a valid acknowledgment appears in the two certificates signed by the master in chancery. The two certificates should be read together in connection with the instrument itself and so read, I think there is no difficulty in upholding the instrument as a valid deed. Claflin v. Smith, 35 Hun, 372; Smith v. Boyd, 101 N. Y. 472. But there still remains the question whether the instrument was a New Jersey assignment or made under the New York law. If it is to be treated as a New Jersey assignment, the plaintiff concedes it to be void as against the defendants. This question was, I think, one of fact. The testimony would support a conclusion either way. The defendants asked to have this question submitted to the jury, but the court refused. The plaintiff treated the question as one for the decision of the court, and asked for a direction of a verdict in his favor. The court granted the plaintiff’s motion, and the parties then stipulated that, upon the motion made by the defendants for a new trial, the court, instead of granting a new trial, might direct a verdict for defendants or dismiss the complaint, and that plaintiff might have an exception thereto. Under this stipulation the court subsequently made an order dismissing the complaint. The plaintiff thereupon moved for a new trial upon his exception, and the motion was ordered to be heard in the first instance at the general term. Under the stipulation of the parties, the question whether the assignment was intended as a New York or New Jersey deed was clearly left to the decision of the court, and it was empowered to draw the proper inferences from the testimony and determine the fact. The case does not show upon what precise ground the court placed its decision, but it may have decided that the assignment was under the New Jersey law. The assignor was a New Jersey corporation, and the assignment was authorized, executed, acknowledged and delivered in that state. The presumption, therefore, was that it was intended to be operative under the New Jersey law. The testimony to the contrary is not so conclusive that we can say that the court erred in so holding, and upon this appeal we must therefore assume the fact to be that the deed was a New Jersey instrument. For these reasons I concur in a denial of the motion.


author: Brown, P. J.

text:
    The People ex rel. Samuel Hobach, Pl’ffs, v. William J. Buttling, as Sheriff, etc., Def't.

      (Supreme Court, Kings County, Special Term,

      Filed July 10, 1895.)

    1. Constitutional law—Chap. 823 op 1895.
    Chap. 823 of 1895 is constitutional.
    2. Same—Local act.
    \ A provision in a statute general in its terms, which exempts certain portions of the state from its operation, is not thereby rendered a local act.
    3. Same—Discbiminat ins statute.
    An act, which permits certain things to be done in portions of the state but prohibits them in other portions, is valid.
    Application by Samuel Hobach for a writ of habeas corpus to William J. Buttling, sheriff of the county of Kings.

      Alfred Steckler, for relator; Ass¿. List. Atty. Callaghan, for People.
   Brown, P. J.

The relator was arrested upon the charge of carrying on the business of a barber in the city of Brooklyn on Sunday June 9th last, which act, by chapter 823 of the Laws of 1895, is declared to be a misdemeanor. Having been committed for trial by one of the police justices of the city, he has been brought before me upon a writ habeas corpus, and asks for his discharge upon the ground that the statute referred to is unconstitutional. The statute makes it a misdemeanor to carry on or engage in the work of a barber on the first day of the week, except that in the city of New York and the village of Saratoga Springs such work may be performed until one o’clock in the afternoon of such day. The power of the legislature to prohibit all work on Sunday is not disputed. So far, therefore, as it forbids all persons engaging in the work of a barber after one o’clock in the afternoon of Sunday, the law is valid. The argument that it is invalid rests upon the clause permitting the work of a barber to be performed in New York and Saratoga on Sunday morning. This is said to be class legislation, and in conflict with the fourteenth amendment to the constitution of the United Statefe, in that it abridges the privileges of barbers in the state outside of New York and Saratoga, and denies to them the equal protection of the laws. It will be observed that, so far as the statute permits the business of a barber to be carried on on Sunday, it does so within certain defined, localities, and within such localities all barbers are treated alike. Such a statute does not fall within the prohibition of the fourteenth amendment. If all persons within the territory to which .the law is applicable are treated alike, the statute is constitutional. In Hayes v. Missouri, 120 U. S. 68, the supreme court of the United States said:

“The fourteenth amendment * * * does not prohibit legislation which is limited either in objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.”

And in Barbier v. Connolly, 113 U. S. 27, it is said:

“Class legislation discriminating against some and favoring others is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects all persons similarly situated, is not within the amendment.”

All barbers within the sphere of the operation of the statute under consideration are treated alike. None can work at their business on Sunday outside of New York and Saratoga. All may work in these two localities until 1 p. m. The statute does not, therefore, violate the federal constitution.

It is also the claim of the relator that this statute violates section 2 of article 12 of the constitution of this state. I quote from the counsel’s brief as follows:

“The legislature has no constitutional right to enact in one law a law affecting generally certain portions of the state and a special law covering the remaining portions of the state. In other words, the legislature can only pass an act which is general in its nature, applicable to the entire state, or a special law applicable to a particular portion of the state. The blending together of a special exemption in favor of New York and the village of Saratoga Springs, and the general restrictions applicable to all other sections' of the state, could not be constitutionally enacted in one law. The law violates the provision that a general city law can only relate to all the cities of one or more classes, because it does not apply to all the cities of one or more classes, as in the state of New York there are other cities besides the city of New York of the first class, to-wit, Brooklyn and Buffalo. * * * Either the law must be a. general city law or applicable equally to all the cities of one or more classes, or a special city law, affecting only -a single city or less than all the cities of a class.”

I am unable to perceive the force of this argument. Its fallacy lies in assuming that the statute is a city law. The learned counsel proceeds to show that it is not a general city law, because it does not relate to all the cities of one or more classes; that it is not a special city law, because it, does not relate to a single city, or to less than all the cities of a class. In this he is undoubtedly correct. But it would have been easier to say that it was not a city law at all, because it does not relate to “the property affairs or government of cities or any department thereof.” The legislature, in passing laws that affect cities, are not confined to the enactment of city laws. It is only when a bill relates to the property affairs or government of cities, or some department thereof, that if falls within the classification of section 2 of article 12 of the constitution ; and the application of that section to city laws is that bills for special city laws, after having passed both houses of the legislature, must be transmitted to the cities to which they apply, to be considered by the mayor or mayor and legislative body thereof. This provision relates to procedure only. It is not a restriction on the power of the legislature.

The law under consideration appears to have been treated by the legislature as a special city law, as it bears the indorsement, “Accepted by the City.” But clearly it was not a city law, and transmitting it to the cities was a useless formality. The law is a general one. It is applicable to the whole state, except Néw York and Saratoga. The exception of these two localities did not make it a local act. People v. Plank Road Co., 86 N. Y. 1. Upon its face it is not in conflict with any provision of the state constitution. It is, however, argued that it is void because' it discriminates in favor of certain localities, in that it permits a barber in New York and Saratoga to engage in his business on Sunday, and denies this privilege to barbers in other parts of the state. The legislature possesses the whole legislative power of the people, except as it is-limited by the constitution, and its authority is absolute and unlimited, unless restrained by the express restrictions of the constitution. There is no provision of the constitution which forbids the legislature from enacting laws that are applicable to only a. part of the state. On the contrary, the constitution recognizes the power of the legislature to pass local bills, and our volumes of law are filled with statutes which apply only to portions of the state. In this respect there is no restriction upon the power of the legislature to make criminal an act done in one locality which is not criminal if done .elsewhere; and especially is this true of the class of laws, and local option laws are illustrative of this class. The law under consideration falls within the class known as “Sunday Laws;” and since the case of Lindenmuller v. People, 35 Barb. 548, the power of the legislature to enact laws with the object of promoting the good order of society upon Sunday and prohibiting the disturbance of the public peace on that day has not been questioned. Neuendorff v. Duryea, 69 N. Y. 557.

In the Lindenmuller Case, it was said that:

“The legislature has the right to prohibit acts injurious to the public and subversive of the government, or which tend to the destruction of the morals of the people and disturb the peace and good order of society. It is exclusively for the legislature to determine what acts are injurious to the community.”

And, it máy be added, the courts cannot review the legislature’s discretion.

In People v. Moses, 140 N. Y. 214; 55 St. Rep. 403, it was said:

“The Christian Sabbath is one of the civil institutions of the state, and that the legislature, for the purpose of promoting the moral and physical well-being of the people and the peace, quiet, and good order of society, has authority to regulate its observance and prevent its desecration by any appropriate legislation is unquestioned.”

That the legislature could prohibit all work on Sunday is conceded, and this concession disposes of the case, as there is no constitional restriction upon its power to enact a law applicable only to a part of the state.

I have examined carefully the cases cited from other state reports by the counsel for the relator. Some of them relate to local •municipal ordinances; others relate to general restrictions upon the pursuit of business or profession ; still others involve construction of lpcal constitutional provisions. None of them is applicable to the case before me, and needs no further consideration.

The Case of Bayard, 61 How. Prac. 294, if a sound exposition of the law, does not conflict with the view I have expressed. Ido not, however, agree with its reasoning, or the result arrived at. The case of People v. Dennin, 35 Hun, 327, was expressly disapproved by the court of appeals in People v. Moses, supra. My conclusion is that the statute is a valid exercise of legislature power. The writ must be dismissed, and the relator remanded to the custody of the sheriff.


author: Dykman, J.

text:
    De Witt C. Bouker, Jr., App’lt, v. Long Island Railroad Company, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Carriers—Delay m carrying freight.
    In the absence of a special agreement for carriage, delay in transporting goods, caused merely by the fact that the carrier’s appliances for loading, though ordinarily sufficient, was inadequate for the time by reason of the large and unusual quantity of freight offered for shipment, does not show any negligence or want of care on the part of the carrier and is not actionable.
    Appeal from a judgment, dismissing the complaint as to one ■cause oE action, and from an order denying a new trial.

      George Wallace, for app’lt; William J. Kelly, for resp’t.
   Dykman, J.

The complaint of the plaintiff in this suit contains two causes of action. The first cause of action is against the defendant, as a common carrier, for having wrongfuly neglected and refused to transport certain stone delivered to it by the plaintiff, the allegation being that by reason of this wrongful act on the part of the defendant he was prevented from completing in proper time a contract which he had in hand for macadamizing certain highways in Queens county. For the second cause of action the allegation in the complaint was that, at different times between December 7th and December 14th, the plaintiff shipped over the defendant’s railroad twenty carloads of stone, to be delivered to Arverne, a station on the line of defendant’s railroad; that the stone ‘was not delivered to the plaintiff, although he had paid the freight charges on the fifteen carloads first forwarded, and tendered payment on the last five carloads forwarded, and demanded that the stone be delivered at Arverne as directed, and that the defendant had neglected to deliver. Upon the trial at the circuit, before a jury, at the close of the testimony on the part of the plaintiff, the counsel for the defendant moved to dismiss the complaint, on the ground that the plaintiff had failed to make out a cause of action against the defendant, as the evidence failed to show any undertaking on the part of the defendant to transport any given number of stones per day, and that the plaintiff failed to show any discrimination against him by the defendant or any of its departments, or the violation of the duties of the defendant as a common carrier, by shipping and transporting the stone from Long Island City to the vicinity of the plaintiff’s contract. That motion was made with reference to the first cause of action. The motion was denied, and the defendant excepted. After the introduction of some testimony on the part of the defendant, and at the close of ■the case, the counsel for the defendant renewed the motion, made at the close of the plaintiff’s case, to dismiss the complaint upon the same grounds as there stated in regard to the first cause of action, and on the ground that it then appeared affirmatively that the defendant had exercised due diligence in the transportation of fi eight, and the court granted the motion as to the first cause of action, but permitted the" claim under the second cause of action to be submitted to the jury for determination. The plaintiff excepted to the ruling of the court granting the dismissal of the complaint as to the first cause of action. The court then charged the jury in reference to the second cause of action, and a verdict was rendered in favor of the plaintiff for $510.08. The plaintiff thereupon moved for a new trial in regard to the issues contained in the first cause of action, and the defendant moved for a new trial on the ground of the issues contained in the second cause of action. The motion made by the plaintiff for a new trial was denied, and the motion made by the defendant for a new trial was denied also.- The plaintiff appealed to the general term from that part of the judgment entered in this action dismissing the plaintiff’s complaint as to the first cause of action, and the defendant has not appealed.

The only question, therefore, for consideration upon this appeal has reference to the dismissal of the complaint as to the first cause of action which it contained. While railroad companies are in a certain sense to be regarded as trading corporations, they are, at the same time, clothed with useful public functions. Their franchises are sovereign, and their uses are public. They are compellable to use their property in the interests of the entire community, and it is their duty to furnish accommodations for the transportation of persons and property. The acceptance of a charter by a corporation constitutes an implied contract on its part for the performance of certain public functions. Actions for damages may be maintained for a breach of such implied contract. In fact, a railroad may be viewed as a public highway under the control of a corporate body which has assumed obligations^ to carry persons and property in consideration of exclusive rights to control the public thoroughfare. Such are some of the well-established rules in relation to common carriers and property, but, like all legal rules, that are to be construed and applied reasonably, and in the light of all the surrounding circumstances. If a large number of passengers demanded carriage at a given point, where a railroad had not sufficient cars to comply with their request, no negligence could be assigned, and no action for damages maintained. If a large quantity of property was presented to a carrier for transportation when it had not sufficient cars to carry it at that time and"place, no negligence could be assigned for a failure to do so. Ang. Garr. § 125. In this case there was no special agreement for the transportation of stone. The liability of the defendant must be measured by the duty imposed upon it by law. The delay was in unloading the stone from the scows, and the evidence makes it entirely clear that there-was no negligence or undue delay. The defendant had ten derricks at the dock, and sometimes six were employed upon the-stone. There was an unusual collection of property for transportation in consequence of the unprecedented amount of macadamizing done in and around Hempstead in 1892 and 1893. Sometimes thirty scows were at the dock at a time, ten or fifteen of which would be loaded with stone. After the stone was loaded there was no unnecessary delay. In fact it appears from the testimany of the plaintiff that the stone was sent forward faster than he unloaded them from the cars. Railroad corporations have the right to prescribe the times for the reception of freight for transportation. Due care and diligence is all that can be required of them in an emergency. If they are careful to make provision for the traffic upon their roads in ordinary times and under ordinary ■circumstances, no more can be required of them, and they should be excused for delay.

“The law contemplates that it may not always be in the power of a railroad company to dispatch either passengers or freight immediately upon their arrival at a station or injunction, and it therefore allows the company a reasonable time after their arrival and the offer of property for transportation to set it in motion from such starting point or junction. What is a reasonable period must ■depend upon the actual circumstances existing at the time the property is offered for transportation.” Wibert v. Railroad Co., 12 N. Y. 25_ .

_ It does not appear from the testimony in this action that there was any failure on the part of the defendant to furnish ample rolling stock for transportation of passengers and freight under all ordinary circumstances and conditions, and it does appear affirmatively that extraordinary conditions prevailed during the time in respect to which this complaint is made against the defendant. Large and unusual quantities of freight was offered for shipment, and the defendant utilized all its facilities for the purpose of transporting the property offered to it for that purpose, including tlje stone offered by the plaintiff. There was no substantial dispute about the facts,'and so the question whether the defendant was guilty of unnecessary delay was for the court. Muckle v. Rochester Railway Co., 79 Hun, 32; 61 St. Rep. 193. In our view the proper disposition was made of the question, and the facts fail to show any negligence, or want of care on the part of defendant, and the complaint was properly dismissed in respect to the first cause of action which it contained,' and the judgment and motion for a new trial should in all respects be affirmed, with costs.

All concur.