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aright there was no other evidence connect- tions competent; but, until there is some ing the two families. Lord Brougham there independent evidence connecting his family said: “I entirely agree that in order to with the other family, the case is not admit hearsay evidence in pedigree, you brought within the qualification of the rule must, by evidence dehors the declarations, which is supported by the great weight of connect the person making them with the authority. Much more is this qualification family. But I cannot go the length of hold to be observed in cases of asserted relationing that you must prove him to be connect- ship by affinity, as in the case of the deed with both branches of the family touch- clarant upon whom the petitioner relies ing which his declaration is tendered. to prove his consanguinity to the testator. That he is connected with the family is suf- Proof of the marriage of the petitioner's ficient; ... to say that you cannot re- mother to Sergeant John Kenneally is esceive in evidence the declaration of A, who sential to establish the petitioner's relationis proved to be a relation by blood of B, ship to the testator. There is no such proof touching the relationship of B, with C, un in the case at bar, unless we accept the less you have first connected him also by mother's unsupported declarations as evievidence dehors his declaration with C, is dence of the asserted relationship, and this a proposition which has no warrant either we regard as inadmissible. in the principle upon which hearsay is let There are a few jurisdictions in which in, or in the decided cases.”

it has been held that the declarant need not This case is often cited and has been the be related, either by blood or marriage, to subject of much comment, and it seems to the family of which he declares. It is of have produced most of the confusion in course the logical corollary of this unqualiwhich this subject of pedigree is involved.fied rule that the declarations of any perWhen that case came before the House of son who claims to know the facts are to be Lords upon an appeal in a subsequent pro- regarded as competent, whether he is or is ceeding (sub nom. Robson v. Atty. Gen. 10 not related to the family of whose pedigree Clark & F. 471), this question was not he speaks. The reasoning in support of passed upon, and, in respect of the admissi- this relaxed rule is well illustrated in Carbility of the narrative of John Troutbeck, ter v. Montgomery, 2 Tenn. Ch. 216, 227, the court plainly stated that it desired to 228, where the prevailing English and Amerbe "understood as not expressing any opin- ican rule is very clearly stated. ion as to the admissibility of it in point of “In England,” says Chancellor Cooper, of law.” In Wise v. Wynn, 59 Miss. 588, 42 Tennessee, “it is now well settled that hearAm. Rep. 381, the Monkton Case was com say evidence is resorted to in matters of mented upon as follows: “The same doc- pedigree, upon the principle of declarations trine (i. e., requiring proof dehors the dec- forming a part of the res gestæ, and therelarations] is announced in Monkton v. fore original evidence, upon the ground of Atty. Gen. supra, though it may perhaps be the interest of declarants in knowing the doubted whether the conclusion reached in connections of the family. The rule is, conthat case does not offend against the doc sequently, restricted to the declarations of trine."

deceased persons who were related by blood Sitler v. Gehr, 105 Pa. 592, 51 Am. Rep. or marriage to the person from whom the 207, and Re Hartman, 157 Cal. 206, 36 descent is claimed, and general repute in L.R.A.(N.S.) 530, 107 Pac. 105, 21 Ann. the family proved by a surviving member. Cas. 1302, are in the same category with Vowles v. Young, 13 Ves. Jr. 140, 9 Revised the Monkton Case. That case also appears Rep. 154; Whitelocke v. Baker, 13 Ves. Jr. to be vouched for by no less an authority 514, 9 Revised Rep. 216; Doe ex dem. Banthan Prof. Wigmore in his well-known work ning v. Griffin, 15 East, 293, 13 Revised on Evidence, vol. 2, $ 1491. If we read him | Rep. 474, 86 Eng. Rul. Cas, 554. This docaright, he expresses the view that the Monk- trine is comparatively recent, even in that ton Case sets forth the true doctrine, and country, and, although the weight of Amerhe argues, in effect, that when a declarant ican authority is tending in the same diis shown to be connected with the family rection, there are many respectable deciwhose relationship with another family is sions which make such limitations. in dispute, his declarations are competent Banert v. Day, 3 Wash. C. C. 243, Fed. Cas. without any independent evidence connect. No. 836; Boudereau v. Montgomery, 4 ing the two. This statement of the rule, Wash. C. C. 186, Fed. Cas. No. 1,694; it seems to us, is too broad. When a de Jackson ex dem. Ross v. Cooley, 8 Johns. clarant who claims relationship by consan- 128; Pegram v. Isabell, 2 Hen. & V. 193; guinity has been shown to be a member of Walkup v. Pratt, 5 Harr. & J. 51. It is one branch of a family, it is of course not obvious that while the English rule may be necessary to prove him also related to the most consonant to sound principle, and may other branch in order to make his declara-' answer the ends of justice in a dense popu



lation and settled community, yet it scarce-, hearing, and as so modified affirmed, withly suffices in a sparsely inhabited country out costs to either party in this court. with a migratory and rapidly changing population. It would be utterly inadequate in Willard Bartlett, Ch. J., and Hiscock, matters relating to a slave population, Chase, Collin, and Cuddeback, JJ., conwhere the family is not legally recognized, cur. Hogan, J., not sitting, and, for the same reason, to the settlement of the rights of illegitimates. Where would the negro have been in suits for freedom, after a few years, on a change of domicil

NEW YORK COURT OF APPEALS. by the master, with the presumption of PEOPLE OF THE STATE OF NEW YORK, slavery against them by reason of color, if

ON COMPLAINT OF CARMINE E. PUG. the English rule had been rigidly adhered

LIESE, Respt., to? In this state we have departed from it, and allow hearsay from other than members HAGBARD EKEROLD, Appt. of the family, and public repute in the community.”

(211 N. Y. 386, 105 N. E. 670.) This Tennessee case is fairly typical of a few others, which we deem it unnecessary

Appeal allowance in criminal case. to cite.

1. A criminal proceeding originating in We live in a state where the social con

an inferior court is within the provision of ditions, no less than the rapid growth of division in any department may allow an

a constitutional provision that the appellate our population and the constant increase appeal upon any question which, in its opinof similar family names, are urgent reasons ion, ought to be reviewed by the court of for preserving the rule in its integrity. appeals. Identity of names, religion, and nativity Same certification of question. are too common to be alone sullicient evi- 2. The appellate division, in allowing an dence of family connections. Any exten- appeal in a criminal case to the court of sion of the hearsay rule in regard to pedi- i appeals, is not bound to formulate and cergree, permitting declarations by persons not tify a specific question. related by blood or marriage to the

School exclusion for lack of vaccinaperson

tion from whom descent is the matter in issue,

effect on compulsory educa

tion law. would open the door to frauds and uncer

3. The exclusion of a child from school tainties, which should not be invited or because of failure to comply with the law encouraged.

making vaccination a condition to admisThe petitioner's case, whatever its merit, sion does not justify the parents' neglect fails at the point of greatest importance, be- to comply with the compulsory education cause it lacks the support of any evidence, law. aside from the declarations testified to by

(June 2, 1914.) him and his nephews and nieces, which tends to establish his relationship to Ser: A 'of the Appellate Division of the Su

PPEAL by defendant from a judgment geant John Kenneally, and through him to the testator, William A. Kenneally. We preme Court, First Department, affirming a agree therefore with the appellate division judgment of the Court of General Sessions in the conclusion that the petitioner has not for New York County, which affirmed a proved his right to the money and property judgment of the City Magistrate's Court, of William A. Kenneally's estate, now in the custody of the state.

Note. - Expulsion or exclusion of child

from school as excuse or justification The appellate division not only reversed

for noncompliance with compulsory the order of the special term, but dismissed

education law. the petition. If the appellate division intended to exercise the power which it now

As to the power of school authorities to has under $ 1317 of the Code of Civil Pro- require attendance at a particular school

as affected by location, accessibility, or discedure, it should have made findings of tance, see note to Williams v. Board of fact which would support such a final de Education, 22 L.R.A. (N.S.) 584. termination. Bonnette v. Molloy, 209 N. As to what instruction constitutes comY. 167, 102 N. E. 559. We think this is not pliance with compulsory education statute, a case in which the courts can hold as mat. see note to State v. Counort, 41 L.R.A. ter of law that it will be impossible for the (N.S.) 05. petitioner to succeed upon a new hearing,

Many states have enacted laws or made for "he may be able to adduce additional provisions for regulations requiring the

vaccination of children as a condition to facts to support his claim.

their admission to, or attendance upon, The order of the Appellate Division public schools (as to the power of the state should be modified by directing a to enact such laws, see notes to Dusfield v.


convicting him of violating the compulsory People v. Briggs, 193 N. Y. 459, 86 X. E. education law. Affirmed.

522; Van Dyck v. McQuade, 86 N. Y. 56; The question certified by the appellate Verona Cent. Cheese Co. v. Murtaugh, 50 division was as follows:

N. Y. 314; People v. Rosenberg, 138 N. Y. “When a father who does not believe in 415, 34 N. E. 285; Re Viemeister, 179 N. vaccination sends his child to school un- Y. 239, 70 L.R.A. 796, 103 Am. St. Rep. vaccinated, but the school authorities re- 859, 72 N. E. 97, 1 Ann. Cas. 334; 35 Cyc. fused to allow said unvaccinated child to 1123; Com. v. Smith, 9 Pa. Dist. R. 625; attend school, and thereafter the father Com. v. Bauman, 33 Pittsb. L. J. N. S. 109; does not cause said child to attend on in- Duffield v. Williamsport School Dist. 162 structions as provided in § 624 of chapter | Pa. 476, 25 L.R.A. 152, 29 Atl. 742; People 140 of the Laws of 1910, is such father v. Nelson, 153 N. Y. 94, 60 Am. St. Rep. subject to the penalty provided in $ 625 of | 592, 46 N. E. 1040; Blue v. Beach, 155 Ind. said act!”

142, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 The facts are stated in the opinion. N. E. 89; State ex rel. O'Bannon v. Cole, Mr. Harry Weinberger, for appellant: 220 Mo. 697, 22 L.R.A.(N.S.) 986, 119 S.

There was no violation of the compulsory W. 424; People v. Phyfe, 136 N. Y. 559, education law.

19 L.R.A. 141, 32 N. E. 978. Williamsport School Dist. 25 L.R.A. 152, , to the public school, and claims that he did and People ex rel. Jenkins v. Board of so and offers to continue to do so. The Education, 17 L.R.A.(V.S.) 710). In most validity of his convictions must rest upon of the cases on the subject under annotation, proof of his sending or failing to send his as in PEOPLE v. EKEROLD, failure to comply child to the public schools. There is no with these vaccination laws has been the claim that the violation of the rules was ground of expulsion or exclusion, and the a colorable pretext to justify a child of basis of the subsequent court controversy. truant disposition and screen an indifferent There is a sharp conflict of opinion on this parent. The evidence shows the child was point.

willing to go to school and the parent anxThe importance of the decision of the ious to have it go. In this state of facts question under investigation in this particu- the conviction was unlawful, and the judglar class of cases is not to be minimized, ment of the court of common pleas, refor, as pointed out by one of the courts versing the conviction and discharging the passing thereon it may readily result in defendant, is aflirmed.” making compulsory a thing which the par- So, too, in the following cases, it is likeent or guardian does not believe to be for wise held that the expulsion or exclusion the child's benefit. Thus, in State v. Turney, of a child from school for failure of the 31 Ohio C. C. 222, Allread, J., holding that parent to comply with vaccination regulathe exclusion of the child from the public tions affords the parent an excuse and justischools for failure to comply with the vac- fication for noncompliance with the comcination law relieved the parent from the pulsory education act: Com. v. Smith, 9 obligation under the compulsory education Pa. Dist. R. 625; Com. V. Bauman, 33 law of seeking its admission into a private Pittsb. L. J. N. S. 109; State ex rel. O‘Banor parochial school, said: "While it is non v. Cole, 220 Mo, 697, 22 L.R.A. (N.S.) true that the parent is required by the act 986, 119 S. W. 424. to send his child to a public, private, or The compulsory education acts, it has parochial school, yet the election is with been held, are penal in their nature, and the parent. The character of our system of must be construed strictly and according public schools and the manner in which to their letter. Com. v. Smith and Com. v. they are sustained do not justify us in Bauman, supra. holding that where a child is excluded from In the Smith Case, the court said: “It the public schools--because in some degree must be remembered in construing this statsupposed to be an undesirable citizen,' — ute that it does not make it the duty of the that the parent is compelled to seek its persons covered by it to obtain a certificate admission in a private or parochial school. for presentation to the teacher that the There is no presumption that the child, if child has been successfully vaccinated or rejected by the public schools, would be re- had previously had smallpox; and unless ceived in a private or parochial school or you can read that into the statute, we are a school of some other district; and there at a loss to see how this judgment can be fore, in the last analysis, the question of sustained. The defendant discharged all compulsory vaccination comes up. If exclu- the duties expressly enjoined by the statute sion for failure to comply with the rule of by sending his son to school; and while ana public school as to vaccination is no de- other statute required the teacher to refuse fense to a prosecution under the compulsory him admission, in default of the certificate, education act, then the exclusion for viola- the discharge of that duty by the teacher tion of a similar rule as to private or added nothing to the duties prescribed by parochial or other district schools would be the statute under which this judgment was no defense, and we would then be face to entered. This is a penal statute and must face with a compulsory vaccination law. be construed strictly and according to its Besides, the father elected to send his child' letter. The meaning of this rule of con


Mr. Charles McIntyre, with Mr. Hiscock, J., delivered the opinion of the Charles S. Whitman, for respondent: court:

The court of appeals has no jurisdiction The defendant was duly convicted before to entertain this appeal.

a magistrate in the city of New York of People v. Johnston, 187 N. Y. 319, 79 N. violating the duty imposed on him as a E. 1018; People ex rel. Public Charities & parent by $ 624 of the education law (ConCorrection Comrs. v. Cullen, 151 N. Y. 54, sol. Laws, chap. 16; Laws of 1910, chap. 45 N. E. 401; People v. Malone, 169 N. Y. 140) to cause his son “to attend upon in568, 62 N. E.

struction," in accordance with the proviThe defendant was guilty of a misde- sions of § 621 of that chapter, and which

violation is made a misdemeanor. His Re Viemeister, 179 N. Y. 235, 70 L.R.A. child was between the ages of seven and 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 fourteen years, and therefore came within Ann. Cas. 334; Jacobson v. Massachusetts, those provisions of said latter section, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. which read as follows: "1. Every child 358, 3 Ann. Cas. 765; Cromwell v. Benja- within the compulsory school ages, in propmin, 41 Barb. 558; People ex rel. Brooks er physical and mental condition to attend v. Brooks, 35 Barb. 85.

school, residing in a city or school district struction is that penal statutes, such as the failure to furnish the certificate, except that one under consideration, are not to be re the child is deprived of the privilege of garded as including anything which is not attending school with other children of the within their letter as well as their spirit, neighborhood. These acts, at least the which is clearly and intelligently described parts thereof material to this case, being in the very words of the statute, as well penal in effect, must be strictly construed, as manifestly intended by the legislature. and cannot be held to include anything not Endlich, Interpretation of Statutes, 454. clearly and manifestly intended by their We must conclude from the foregoing that language. The act of 1901 required the the compulsory education act, by its terms, defendant to send his children to school. did not make it obligatory upon the defend- | This he attempted to do, by presenting them ant to obtain a certificate. His sole duty at the schoolhouse nearest his home, and prescribed by it was to send his son to asking that they be enrolled. In doing this, school. He did this. The teacher refused he complied with the provisions of the act. the son admission simply because he did His children were not refused admission to not present a certificate. There is nothing the school because of either his or their in this statute making vaccination man- failure to comply with any of the provisions datory in any case; neither does it require of the act. Their admission was refused the child to produce a certificate that it solely because of inability to present physihas been successfully vaccinated or had cians' vaccination certificates required by smallpox. In order to sustain this judg- the act of 1895, which relates to an entirement, we must say that the defendant was ly different subject. These acts are not in obliged by the terms of the statute to pro- pari materia, and, even if they were, there cure, and his son to present, a certificate. is nothing in them either separately or We cannot say this. The defendant made a read together which can reasonably be con. complete answer to the case of the common strued to make the vaccination of school wealth when he showed that he had sent children compulsory. The defendant, not his son to school until he was denied ad- having neglected any duty imposed upon mission by the teacher."

him by the 1st section of the act of July And in the Bauman Case, in answer to 11, 1901, was improperly convicted, and the the contention of the commonwealth that judgment of the magistrate must be rethe compulsory education act and the act versed and set aside.” requiring the vaccination of school children It will be observed that since in these must be considered as in pari materia, and cases the compulsory education acts were that, when so considered, not only required construed strictly without reference to the attendance at school, but also made com- vaccination acts, which they failed to menpulsory the vaccination of all children tion, they are not necessarily authority in required to attend school, the court said: a case where the education act requires "We cannot agree with that contention. the presentation of a vaccination certificate The act of 1901 contains no reference what to entitle a child to admission to school. ever to a certificate of vaccination. It The view taken by the court in PEOPLE merely enacts that parents shall send their v. EKEROLD, where it does not appear that children to school, and provides a penalty the compulsory education act made any for their neglecting so to do. The act of reference to the vaccination act, is sus1895 makes it the duty of school principals tained by People v. Mellwain, 151 N. Y. to refuse admission to schools of children Supp. 366. And in the same connection, who do not present a physician's vaccina- see Shappee v. Curtis, 142 App. Div. 155, tion certificate. This act imposes a penalty 127 N. Y. Supp. 33. upon the principal for admitting a child And in Walker v. Cummings, 107 L. T. without such certificate, but inflicts no N. S. 304, 76 J. P. 375, 28 Times L. R. 442, penalty upon either parent or child for '23 Cox, C. C. 157, 10 L. G. R. 728, it was having a population of five thousand or New York from any judgment of a city more and employing a superintendent of magistrate, or of any court held by a city schools, shall regularly attend upon instruc- magistrate, in force when said act took eftion as follows: (a) Each child between fect, shall apply to and regulate all appeals, seven and fourteen years of age shall at- and the right of appeal in all cases hithertend the entire time during which the school to existing was preserved. attended is in session, which period shall Section 72 said act provides that the not be less than one hundred and sixty magistrates of said court are magistrates, days of actual school.”

and said magistrates' courts are police The important facts involved in the con- courts, within the meaning of the provisions troversy were precipitated by the subject of the Code of Criminal Procedure and the of vaccination in the public schools. The Penal Law. Under these provisions an apboy had been in attendance at a public peal from the decision of a city magistrate's school and had not been vaccinated. Act- court to the court of general sessions, and ing under and in accordance with the pro- thence from a judgment of affirmance to visions of § 310 of the public health law the appellate division, was matter of right. (Consol. Laws, chap. 45), providing "no Code Criminal Procedure, SS 749, 751, and child or person not vaccinated shall be ad- § 770. In the absence of permission to apmitted or received into any of the public peal, the judgment of the appellate division schools of the state, and the trustees or oth- was final. Code of Criminal Procedure, er officers having the charge, management $ 771; People v. Johnston, 187 N. Y. 319, or control of such schools shall cause this 79 N. E. 1018. provision of law to be enforced," the board While the act already referred to (Laws of education of the city of New York had of 1910, chap. 659, § 40) secured without adopted by-laws in substance providing that permission the right to appeal to the court no pupil should be allowed to attend the of appeals from a judgment of the appellate public schools unless he had been vaccinat- division in the case of a prosecution origied. Because of a refusal to comply with nating in the court of special sessions in this statute and these by-laws, the defend- New York, thereby changing the law, no ant's son was excluded from the school such amendment seems to have been made which he had been attending, and defendant in the case of city magistrates' courts. urges this exclusion as a valid reason why Under the Constitution, however, I think he should not comply with the provisions that the appellate division had permission of the education law requiring the attend to allow a further appeal from its judgment ance of his son, and therefore as a defense to this court. The Constitution (article 6, to this proceeding to punish him for failure $ 9), after enumerating cases in which apto cause such attendance on the part of peals may be taken to the court of appeals said son.

as matter of right, further provides: “The The first proposition urged upon our con- appellate division in any department may, sideration is that no appeal will lie from however, allow an appeal upon any question the judgment of the appellate division, but of law which, in its opinion, ought to be rewe think this cannot be sustained.

viewed by the court of appeals.” Section 94 of the act in relation to the No statutory provision has been adopted inferior courts of criminal jurisdiction of under this enactment expressly allowing apthe city of New York (Laws of 1910, chap. peals by permission to the court of appeals 659) in substance enacts that all provisions in a criminal proceeding originating like applicable to appeals to the court of gener- the present one in an inferior court. al sessions of the peace in the county of The legislature, however, interpreting and held that a parent who knowingly sent his , where it was refused admission, the parent child to school in such a verminous condi. was properly convicted of neglecting to tion that admission was refused had not cause his child to attend school. "caused the child to attend school" within And it is held in Saunders v. Richardson, the meaning of the by-laws applicable, anil L. R. 7 Q. B. Div. 388, 50 L. J. Mag. Cas. that the refusal of admission afforded him N. S. 137, 45 L. T. N. S. 319, 29 Week. no "reasonable excuse."

Rep. 800, 45 J. P. 782, overruling L. R. 6 And Jones v. Rowland, 80 L. T. N. S. Q. B. Div. 313, 50 L. J. Mag. Cas. N. S. 630, 63 J. P. 454, 19 Cox, C. C. 315, holds 65, 44 L. T. N. S. 474, 29 Week. Rep. 631, that where the parent of a child ten years 45 J. P. 344, that a parent who, in obedience of age, who attended a voluntary public to an order of court to send his child to and elementary school, was informed that, a board school, sends the child there withfor reasons approved by the education des out fees, whereby he is refused admission, partment, the child must cease to attend is liable to conviction under the elementary that particular school, and attend another education act 1876 (39 & 40 Vict. chap. 79), in the same district, but the parent con- $ 12, for noncompliance with the order. tinued to send the child to the same school,

W. W. A,

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