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give the utmost freedom to those who desire to live when we review the fifth. No work on this subject here and to become a part of the State, and the best has received such general favor from the practising developement of the country demands that not only lawyer, and it is generally recognized as an authorshould immigration be properly restricted, but that ity on this subject. The present work has none of naturalization should also be kept within well-de the appearance of an earlier edition which has fined and proper limitations. Moreover the benefits simply been added to, but is a complete and new of naturalization in this country to a person who is work and one which will again receive the favorable temporarily abroad is recognized and commented approbation of the bar. It is published by Little, upon, and the value of this work is proportionate Brown & Co., Boston, Mass. to all these considerations. The book is not divided into chapters, but begins with a general discussion The Law Relating to Electricity. By Simon G. on the importance of naturalization and then gives Crosswell, formerly of the law department of the definitions with citations showing a reference for Thomson-Houston Electric Co. and the General each. Quite a little attention is given to the dis- | Electric Co., and author of a treatise relating to tinction between aliens who may and who may not

executors and alministrators, and “A Collection become citizens. The statutes of the different of Patent Cases." nations on this subject are then given in order and As is most properly stated by the author, the the application of the American statutes to cach rapid development and application of electricity to follows. All the kindred subjects are grouped with various commercial uses has produced a correspondgood taste and propriety through the work, which ing growth of statutes and adjudged cases until also contains parts of the constitutions of different there has been formed a considerable branch of law Republics and States on this subject, and con- devoted wholly to those subjects. This idea is cludes with forms for use under our statutes. The well known, as is apparent fro:n the publication of general index is comprehensive of the entire work a series of reports devoted wholly to the subject of and is carefully arranged and prepared, and the electricity. The increased application of electricity whole book is much more practical and exhaustive to commercial purposes has been more rapid than than any former work. Published by Little, the practical development of laws on this subject, Brown & Co., Boston, Mass.

and we have noted with great interest the eagerness

of members of the bar to obtain works on this inA treatise on the construction of the Statute of teresting and useful subject. This text-book, thereFrauds as in force in England and the United States. fore, which we are reviewing comes in good season Fifth edition, by James A. Bailey, Jr., with the co- to meet the apparent desire of the members of the operation of the author, Causten Browne.

legal profession and will undoubtedly be received The desirability of the fifth edition of this work with the measure of success which its value merits. is evident when we comprehend that over 1,900 Not only will the book be of service to those who cases have been added to the text-book since the are practicing law, but its worth will be considerlast edition, while the entire text has been carefully able to the layman who desires to obtain a comprerevised to conform to many of the decisions which hensive view of the general principles applicable to have thus been made. The number of cases cited electricity. The work is divided into thirty-three in this work is tremendous, the table of cases alone chapters, the most important of which are, Infilling over sixty pages. The work is divided into corporation, Contracts as Affected by Franchise, twenty chapters, among which are chapters on For- Prohibition of Discrimination, The Duties of malities, for Conveying Estates and Land, Loans Re. Telegraph Companies as to Transmission and Decovered by Statute, Wills Excepted from the Statute, livery, Duties as to Telegrams and Other Matter, Assignment and Surrender, Conveyance by Approba- Nature of the Liability of Telegraph Company as to tion of Law, Trusts Implied by Law, Express Trusts, Negligence, Special Agreement, Limitation of Time Verbal Contracts — how far valid, Contracts in Part for the Presentation of Claim, Measure of Damages, Within Statute, Guarantees, Agreements -- not to be Telegraphic and Telephonic Communications as performed within a year, Sales of Goods, Acceptance Evidence, Contracts by Telegram and Other Matand Receipt, Earnest and Part Payment, The Form ters, Telephone and Electric Light Operation, Elecof the Memorandum, The Contents of the Memoran- tric Railway Operation, and Taxation. This last dum, Verbal Contracts Enforced in Equity and chapter is one which will be of valuable service and Pleading

interest to counsels for corporations. The work The reviews on the first four editions of this work contains not only a table of cases cited, but also a have, without exception, spoken of its high value as table of contents and of statutes arranged accorda text-book and we can but echo the statements ing to different States. which have been made about the first four editions Published by Little, Brown & Co., Boston, Mass.

A

for review, pursuant to subdivision 8 of section The Albany Law Journal.

485 and sections 517 and 528 of the Code of

Criminal Procedure.
ALBANY, OCTOBER 12, 1895.

There has been imposed by the sections of

the Criminal Code above mentioned a very Current Topics.

arduous duty upon this court. We act not [All communications intended for the Editor should be ad-only in the capacity of an ordinary appellant Jressed simply to the Editor of THE ALBANY LAW JOURNAL. all letters relating to advertisements, subscriptions, or other tribunal reviewing errors of law pointed out business matters, should be addressed to The AlbaNY LAW by exceptions duly taken, but if satisfied that JOURNAL COMPANY.) CASE which has attracted much attention that justice requires a new trial, it is the duty

the verdict is against the weight of evidence or throughout the State has been finally decided by the Court of Appeals, and is the case

of the court to grant it, whether any exception

shall have been taken or not in the court below. of the People v. Shea, which grew out of a murder at the municipal election in the city of Troy, | The duty imposed upon us is that of reading N. Y., a year and a half ago. The defendant the whole evidence in the case of every convicwas indicted for murder in the first degree and

tion of murder in the first degree.. The Code was convicted as charged in the indictment at provides (subdivision 8 of section 485) that the an extraordinary term of the Oyer and Termi- case and exceptions shall consist, among other ner, over which Governor Flower appointed things, of a copy of the stenographer's minutes Mr. Justice Pardon C. Williams, of Watertown, of the trial, the result of which provision is, to preside. Assistant District Attorney Fagan that a large mass of evidence frequently upon and Hon. George Raines, who was appointed points not really disputed or disputable, is reto assist, appeared for the People, while the de- turned, all of which must be perused before fendant had as his attorneys John T. Norton, this court can properly come to a conclusion in Esq., of Troy, and Galen R. Hitt, Esq., of Al. a case. It seems to us that a practice might bany. The opinion of the Court of Appeals be provided by the Legislature which, while reaffirming the judgment of the trial court is writ- taining all that is now sought for in an appeal ten by Judge Peckham, and aside from the to this court, would yet restrain within some well-known literary ability of Judge Peckham, reasonable limits the printing of a vast mass of which is displayed in the opinion, it is worthy prolonged examinations and cross-examination of comment in other respects as involving many filled with repetitions and immaterial matter, new and novel points, which at least have not

and set forth by question and answer. been decided in this State. It appears that The case now before us is an apt illustration previous to the trial circulars were distributed of the vice of this kind of practice. Ten thouto the grand jurors reminding them of the great sand folios, embracing 2,000 printed pages of inportance of their duties and stating some of evidence, compose the record, exclusive of their powers as evidenced by citations from the some 300 pages of examinations of jurors, no statutes and offering further to advise them, if question in regard to whom was raised or they would call at the headquarters of the com- argued in this court. Taking all this mass of mittee of safety, of the way by which each grand evidence and printing it by question and juror could do effective work. It was estab-answer, with its innumerable and everlasting lished that the methods of the committee were repetition of the same thing stated in the same not for political or sectarian effect, as it was way, does no good to any one, and at the same composed of people of all religions and of dif-time makes the reading a burden which ought ferent political beliefs. Judge Peckham, in not to be imposed upon the court. The evidiscussing this point, says:

dence should, as it seems to us, be placed in The defendant having been convicted of the the record and the case settled by the trial judge, crime of murder in the first degree at an extra- as in other cases, and not more than the mateordinary term of a court of Oyer and Term- rial evidence ought to be returned, and, except iner, held in the city of Troy, has by appeal in special cases, the evidence should be in narbrought the record of his triai before this court | rative form.

VOL. 52 No. 15.

Notwithstanding this great mass of evidence to prevent its violation by others, but the intent returned, as the present law provides, the whole with which an act is performed is the important record has been examined and deliberated upon fact which characterizes and gives point and with that degree of care and attention which force to the act itself. We think the action of the interests at stake would naturally call for the deceased and his friends cannot properly

Continuing, Judge Peckham discusses the be said to have led to this catastrophe. merits of the case and the facts, which are too In discussing the objections of the defendant numerous to mention here, and states that the to the admission of evidence in regard to repeatCourt cannot listen, with complacency, to the ing Judge Peckham says: arming of citizens of the State for the purpose The counsel for the defendant challenge the of going through the forms of holding an elec- correctness of the rulings of the trial court in tion, and to be ready to protect themselves in admitting evidence of the repeating in the prescase of an attack. It is an appeal to the force ence and under the supervision and direction of arms instead of to the protection of the law, of defendant at the different polls as stated in and such an appeal is one which the courts can- the point last discussed. Proper exceptions not be expected to look upon with the least

were taken to the decisions of the court in that patience or tolerance. Still, when the whole regard, and the question has been argued before case is surveyed, the criticism comes in bad us at great length. The objection taken is that form from the defendant, and there is nothing the evidence was immaterial and had no proper in the evidence which justifies him or mitigates or legitimate bearing upon the issues joined for the character of his act.

trial, and that it simply tended to show the deJudge Peckham then distinguishes between fendant guilty of some other separate and difacts done in furtherance of an unlawful pur

ferent crime from that for which he was indicted pose and in violation of the criminal law, and and then on trial and to greatly prejudice him other acts which are done by private citizens in his defense. The impropriety of giving eviin order to obstruct the accomplishment of that dence showing that the accused had been guilty purpose. On this subject he says:

of other crimes, merely for the purpose of Up to the time the defendant and his com- thereby inferring his guilt of the crime for panions appeared, it is not pretended that the which he is on trial, may be said to have been least disorder had prevailed at the polling place, English courts ever since the common law has it

assumed and constantly maintained by the although it may be assumed that there were men

self been in existence. Two antagonistic belonging to all parties there present. The

methods for judicial investigating of crime, and trouble commenced upon the arrival of the defendant and friends, and the fighting was pre

the conduct of criminal trials have existed for

many years. One of these methods favors this cipitated by them. While condemning in kind of evidence, in order that the tribunal unmeasured terms, the general practice of car which is engaged in the trial of the accused rying weapons, we can in this case admit that

may have the benefit of the light to be derived the deceased or his companions ought to be de- from a record of the whole past life of the acfended as violators of the public peace, because cused, his tendencies, his nature, his associates, of their conduct on this occasion. Court can- his practices, and in fact, all the facts which go not and must not recognize the claim of right to make up the life of a human being. This is to take the law into their own hands by citi- the method which is pursued in France, and it zens under any circumstances, but at the same is claimed that entire justice is more apt to be time they can see the difference and make the done where such a course is pursued than where proper distinction between acts done in fur- it is omitted. The common law of England, therance of an unlawful purpose and in viola- however, has adopted another and, so far as tion of the criminal law, and those acts which the accused is concerned, a much more merci. are done by private citizens in order to obstruct ful doctrine. By that law the criminal is prethe accomplishment of that purpose and to pre- sumed innocent until his guilt is made to appear vent such violation. The citizen must not him- beyond a reasonable doubt to a jury of twelve self be guilty of a violation of law in his efforts In order to prove his guilt it is not permitted to show his former character, or to thoroughly hypnotized, if left to themselves, prove his guilt of other crimes merely for the even for a brief space of time, will pass into a purpose of raising a presumption that he who natural sleep, from which they awaken as from would conimit them would be more apt to com- a nap, with all the expressions of drowsiness mit the crime in question. In People v. and temporary loss of memory as to surroundSharpe, 107 N. Y. 427, the doctrine is dweltings and events that are evidenced by persons upon and the cases cited upon the subject col- who have slept under ordinary circumstances. lected.

men.

This fact necessitates that, in order to keep in

touch with this subject, the operator must keep In the Department of Experimental Psychology at the recent meeting of the Medico-Legal up a continual line of suggestions, otherwise he Congress a number of interesting papers were

loses control of the subject. read by distinguished authors on the subject of

Notwithstanding his apparent loss of conHypnotism, which to-day is receiving more

sciousness, a person in the hypnotic state is attention from lawyers, as well as from the perfectly conscious of his condition. He is public, than any other subject connected with possessed of what is termed a double or dual, the medical and legal sciences. "Judge Abram consciousness. He knows full well that he is H. Dailey, of Brooklyn, read a paper on "The doing the bid of another, but so long as the Hypnotic Power, What it is,” and Clark Bell, suggested acts do not shock his sense of proEsq., who was later on elected president of the priety and come within the bounds of physical Medico-Legal Society, read a paper on “Hyp- possibility, he will attempt their performance notism and Crime;" while Mrs. Sophia Mc- because he realizes that he is playing a part in Clellan read a paper which had for its subject, an experiment, and is anxious to add his mite Psyche-Physiological Mechanism.” Judge A.

to the sum total of knowledge upon the subL. Palmer, of the Province of New Jersey, ject. Nevertheless he is as free a moral agent presided over the deliberations of this depart

to follow the dictates of conscience as he is in

the waking state. He obeys only in so far as ment of the congress, and Professor W. X. Sadduth, formerly Dean of the University of the suggested acts do not antagonize the moral

standard he set up for himself; any suggestions Minnesota, and now living in Chicago, read a paper on

that seriously affront his moral nature, if perHypnotism and Crime." His

paper

sisted in, will cause him to awaken. was, in part, as follows: The wide difference of opinion regarding

Criminal or immoral suggestions made to a the relationship of hypnotism and crime exist moral subject meet the auto-suggestion arising ing in this country and Europe has long been from his own conscience, and confusion is crea matter of comment. Prominent authorities

ated in his mind. His indecision is only too on each side of the water, with but few ex-apparent in the helpless expression on his face ceptions, reject the idea of the possibility of suc- and his incapacity to organize any line of processful criminal suggestions under ordinary cedure in the premises and simply remains circumstances, while many European writers passive, that is, does nothing. freely admit and deplore the supposed possible

While it is true that post-hypnotic suggesmisuse of this new-old force for criminal ends, tions can be given to a susceptible subject in although they cite no well-authenticated cases the hypnotic state to be carried out at some to prove their fears,

future time, yet the suggested act or acts must In order to intelligently discuss the subject, be in harmony with his own idea at the time it is essential that we first inquire briefly into they are given, as any suggestion given in the the nature of hypnosis. In its simpler manifes-hypnotic state that would be repugnant to the tation it is a modified form of natural sleep, subject in the waking state would invariably artificially induced, but in its more complete fail of consummation. form it compares to the abnormal condition of The question of successful hypnotic criminal natural sleep known as somnabulism. It is also suggestion turns, therefore, on a point of morals, the natural precursor of ordinary sleep. This even as it does in the waking state, and with is proved by the fact that subjects, after being | a lessened possibility of success, for the reason

that in the hypnotic state a subject seems to sensational stories that go the rounds of cheap lose to a greater or less degree his sense of ma- literature regarding theft, arson, and murder terial relationship, and cupidity and passions committed in the hypnotic state are the creaare less usually appealed to. The mind is pas- tions of diseased or ignorant minds. sive, not active, and the operator must supply In considering this subject it must be rethe motive and the physical incentive as well. membered that there are people in this world

The tendency to pass into a condition of who are negatively honest, virtuous, and gennatural sleep is ever present, and the close re- erally well-behaved — people who are good belationship to natural sleep is a point of great cause they have never been tempted to be bad. interest. Prof. James of Harvard says that such persons tempted either in the waking or “we all probably pass through the hypnotic hypnotic state might or would fall simply bestate in going to sleep every night.”

cause they had no indwelling force of characTo define hypnotism simply as “induced ter. Such persons are only safe in a cloister or sleep” is, however, to limit the condition; it is behind prison bars. that and more. It is a condition in which the Many years' experience with use of hypnotindividual is oblivious to outward surroundings, ism in laboratory and clinic, upon widely in the main, but quickened in power of sus differing classes of subjects, makes me feel safe ceptibility to suggestions from the hypnotizer. in saying that under all conditions when the It is a concentration of the mind of the indi-subject is capable of carrying out a criminal vidual upon some one line of thought or phe suggestion he is sufficiently conscious of his nomena to the exclusion of all others. It is own volition to decide whether he will carry not essential that the subject should present all out the suggestions or not. This being the phenomena of sleep; the eyes may remain open, case, he goes ahead law of intent and becomes and the person be in a complete hypnotic state, a "particeps criminis," law of intent and beand obey all direct commands with decision, comes a "party criminis," an "accessory beand yet be wholly unconscious as to what has fore and after the fact," and should be held happened when he is roused to consciousness.equally guilty with the instigator of the crime. The mind may be compared to an automatic, A criminal he surely is, but hardly a “criminal self-registering machine that receives ideas, character" in the sense in which I have been tabulates and carries out motor impulses that accustomed to use the term. are suggested to it through the senses for the Dr. William Lee Howard of Baltimore, says sensorium to receive and apply the suggestion; that "in his experiments he has drawn the line however, the latter must be of a character that at arson and murder.” I have gone one step is within the understanding of the individual. further and repeatedly attempted to induce To give command in foreign tongue is to invite subjects to make felonious attacks on persons failure, and the suggestion of thoughts to a under the most aggravating circumstances withhypnotic subject, foreign to his ideas of right out securing the least indication of obedience. and wrong, will meet with equally negative For instance, while my subjects would stab results.

right and left with paper daggers, yet when a Constant repetition may, as in all things, real dagger was placed within their hands they educate the individual in the premises, but, as have invariably refused to use it, even when we have said before, it is very difficult to over- suffering the greatest provocation. I account come preconceived ideas. The personality of for this on the ground that a person in the acthe individual is not materially altered in tive hypnotic state possesses a dual existence, hypnosis; it is only modified, partially domi- and is perfectly conscious of what he is doing. nated, if you please, by the will of another for In most cases he will carry out the expressed the time being, but only so far as his own ideas wish of the operator, provided it does not afwill break the relationship and arouse the indi- front his sense of propriety or seriously cross vidual from the hypnotic state. Faith in the his ideas of right and wrong. ability and the good intentions of the operator For several years I have made use of hypis an essential element in hypnotism, and the notism in surgical practice, and my experience

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