(1) FAILURE TO FEED-IN POUND-DOES NOT RELATE TO ANIMAL ON PREM-
ISES-PENAL LAW, SECTION 187.
Section 187 of the Penal Law, making it a misdemeanor to fail to pro-
vide proper food and drink to an impounded animal and providing that
any person may enter upon the pound and supply food and water under
certain conditions and that the owner shall be liable for the reasonable
cost of the food, does not relate to an animal on the premises of its
owner, but to one which has strayed from such premises and has been
distrained or impounded because of such straying or trespassing.
The statute does not relate to the owner of an animal but to one who
has distrained, impounded or caused to be confined such animal so stray-
ing or trespassing. Chenango Co. Humane Soc. v. Polmatier......
The clear purpose of the statute is to secure the necessities of life to
an impounded animal which has strayed from the possession of its owner,
until reclaimed by him. Id.
(3) POUND-PRIMARY SIGNIFICATION.
The pound is an ancient Anglo-Saxon institution and the primary and
underlying signification and the dominant idea is that of an inclosure for
the confinement of animals taken in trespassing or when running at large
in violation of law, until they are reclaimed by their owner. Id.
The statute applies both to a public pound and where straying cattle
are confined in an inclosure on private land, with the intention of thereby
impounding them. Id.
WHO NOT IMMUNE FROM SERVICE AND ARREST-WHEN MOTION TO VACATE
SERVICE OF SUMMONS AND COMPLAINT AND ORDER OF ARREST DENIED
CRIMINAL LAW-CIVIL RIGHTS LAW, § 25.
A person under arrest on a criminal charge, though out on bail, is not
immune from the service of civil process or from civil arrest. Rosen-
blatt v. Rosenblatt....
Defendant after an absence from the state of about two years was
arrested and admitted to bail upon a charge of having abandoned his
wife and children, and on the adjourned day that the proceeding in the
Domestic Relations Court was finally terminated, he was served with the
summons and complaint in a civil action. Held, that his motion to vacate
the service of the summons and complaint and the order of arrest, on
the ground that he was immune from such service and arrest, will be
denied. Id.
As the defendant was not in court for the purpose of being exam
ined," section 25 of the Civil Rights Law did not apply. Id.
CONVICTION REVERSED-BREACH OF THE
PEACE-MEANING OF PUBLIC PLACE"-NEW YORK CITY CONSOLIDATION
ACT (LAWS OF 1882, CHAP. 410), §§ 1458(3), 1459.
A private dwelling is not a "public place" within the meaning of
section 1458 of the New York City Consolidation Act (Laws of 1882,
chap. 410). People v. Becker....
Where on appeal from a judgment of conviction for a violation of
subdivision 3 of section 1458 of the New York Consolidation Act, it
appears that the acts of defendant complained of were not committed
in a public place, and no claim is made by the district attorney that the
public was in fact disturbed or that any one except the complainant
knew of defendant's alleged improper behavior, the judgment of
conviction will be reversed and the defendant discharged. Id.
The phraseology used in the complaint, as well as in the warrant,
being in the precise wording of said section 1458(3), and there being
nothing either in the warrant or judgment to show that the magistrate
found that in his opinion the conduct of the defendant was such as tended
to create a breach of the peace under section 1459 of said Consolidation
Act, the judgment of conviction cannot be sustained thereunder. Id.
(2) SAME-CITY ORDINANCES-POWER OF THE BOARD OF ALDERMEN OF THE
CITY OF NEW YORK TO PRESCRIBE PUNISHMENT FOR BREACH OF AN ORDI-
NANCE-EVIDENCE-MISDEMEANOR CRIMINAL LAW-GREATER NEW YORK
CHARTER-CODE OF ORDINANCES, CHAP. 3, ART. 3, §§ 60-62.
The board of aldermen of the city of New York has power, under the
Greater New York charter, to pass an ordinance (Code of Ordinances,
chap. 3, art. 3, §§ 60–62) which in effect defines, as a misdemeanor, the
maintaining and operating of a carousel without a license, and prescribes
a fine or imprisonment for a violation thereof. People v. Hovell.. 164
Where upon a trial for the violation of said ordinance there was no
evidence that the defendant operated the carousel in question other than
the assumption by his counsel for the purposes of argument or in nis
opening, the conviction of defendant must be reversed and a new trial
ordered. Id.
(1) SLIGHT ERRORS WILL NOT BE DISREGARDED IN DOUBTFUL CASES-
EVIDENCE.
On an appeal from a conviction for the crime of arson where it appears
that the prosecution has failed to make a very clear case against the
defendant, the court is not at liberty to consider errors as unimportant
which under other circumstances might be disregarded. People v.
Chapman
345
(2) SAME-EVIDENCE-STATEMENTS OF PERSON AS TO CONDITIONS IN BURN-
ING BUILDING NOT ADMISSIBLE AS PART OF RES GESTAE.
Evidence was not admissible, as part of the res gestae, as to the state-
ments made by a man who entered the burning house and received burns
from which he soon died, as to the conditions that he observed therein,
as he was away from the fire at the time and a substantial time had
elapsed between the occurrence and the statements and they were made
in response to questions by third persons. Id.
(1) ASSAULT IN FIRST DEGREE--NOT CONSTITUTED BY ALLEGED ACTS CONSTI-
TUTING MANSLAUGHTER IN FIRST DEGREE
One crime is not constituted by the alleged acts which constitute
another crime, or the one crime is not a lower degree of another crime,
unless the latter crime necessarily includes the ingredients of the former
crime. The crime of assault in the first degree is not constituted by the
alleged acts constituting the crime of manslaughter in the first degree,
because the act of manslaughter in that degree and the evidence proving
the commission of the act do not necessarily, and in fact could not, prove
the act of assault in the first degree. People v. Santoro......
402
(2) SAME ERRONEOUS ON TRIAL OF MANSLAUGHTER IN FIRST DEGREE TO
REFUSE TO CHARGE THAT DEFENDANT CANNOT BE FOUND GUILTY OF ASSAULT
IN FIRST DEGREE.
Upon the trial of an indictment accusing the defendant of the crime
of manslaughter in the first degree, a refusal to charge "that the defend-
ant cannot be found guilty of assault in the first degree" is erroneous.
It is an essential element of the crime of manslaughter in the first degree
that the assault on the deceased was "committed without a design to
effect death." (Penal Law, § 1050.) Under the indictment, evidence
and charge the defendant was convicted of assaulting deceased with a
loaded firearm, with an intent to kill him. To accuse by indictment a
person of and try him for the crime of assault without a design to effect
the death of the person assaulted and to convict him of the crime of
assault with an intent to effect the death of that person is contrary to
and destructive of the fundamental rules of our law and principles of
justice and fairness. The specifications without a design to effect
death" and "with an intent to kill a human being" are direct
contradictions. Id.
(3) SAME PENAL LAW, $ 1050-TO SUPPORT CONVICTION THE SPECIFIC
INTENT TO KILL A HUMAN BEING MUST BE PLEADED AND PROVED.
Nor is the refusal justified by the provision of section 444 of the Code
of Criminal Procedure that "upon a trial for murder or manslaughter, if
the act complained of is not proven to be the cause of death, the defend-
ant may be convicted of assault in any degree constituted by said act,
and warranted by the evidence.". The indictment is the pleading on the
part of the People and to convict an accused person of a crime not
included in the specifications of the accusation and not proven within
the evidence produced at the trial is unjust and unreasonable. To sup-
port a conviction for assault in the first degree the specific intent to kill
a human being must be pleaded and proved. Nothing should be assumed
and nothing can be taken by intendment in a criminal charge of such a
nature. Id.
(4) CONVICTION FOR ASSAULT ON PROSECUTION FOR MANSLAUGHTER-INJURY
TO ANOTHER BY PISTOL SHOT-ISSUE AS TO PROXIMATE CAUSE OF DEATH-
CHARGE.
Appeal from a judgment convicting the defendant of the crime of
assault in the first deeree after trial of an indictment for manslaughter.
Evidence held sufficient to justify a conviction. People v. Santoro.. 156
Where the defendant deliberately fired two revolver shots into the body
of the decedent, which took effect in the lungs in the vicinity of the
heart, but there was a question as to whether the person shot would
have died if he had obeyed the direction of his physician so that there
was a conflict as to the proximate cause of death, it was proper for the
court to charge that the jury might convict the defendant of assault in
the first degree, for section 444 of the Code of Criminal Procedure
expressly provides that upon a trial for murder or manslaughter if the
act complained of is not proven to be the cause of death the defendant
may be convicted of assault in any degree. Id.
FROM PRACTICING UNLESS
CONSTITUTING VIOLATION OF SUCH
(1) PENAL LAW, § 270-PROHIBITION
LICENSED AND ADMITTED ACTS
STATUTE.
The practice of law is not limited to the conduct of cases in courts.
It embraces the preparation of pleadings and other papers incident to
actions and special proceedings and the management of such actions and
proceedings on behalf of clients before judges and courts, and in addi-
tion conveyancing, the preparation of legal instruments of all kinds,
and in general all advice to clients and all action taken for them in
matters connected with the law. An attorney-at-law is one who engages
in any of these branches of the practice law. People v. Alfani.... 117
(2) SAME-PREPARING
VIOLATION OF STATUTE.
Under the statute (Penal Law, § 270) it is a misdemeanor for any
person to practice as an attorney-at-law or to represent himself as
being entitled to practice law, in any manner, without having first been
duly and regularly licensed and admitted to practice law in the courts
of record of this state; and practicing as an attorney-at-law either in
or out of court or holding oneself out as entitled to so practice, is the
offense. Therefore, to prepare, as a business, legal instruments and con-
tracts by which legal rights are secured and to hold oneself out as
entitled to draw and prepare such, as a business, is a violation of the
law. Id.
(3) SAME-NOTARY PUBLIC DRAWING LEGAL PAPERS.
Where defendant, who is not an attorney-at-law, had an office in
which he carried on a real estate and insurance business, and also, dis-
tinct from such work, drew legal papers, contracts for real estate, deeds,
mortgages, bill of sale and wills, and displayed in his window a sign
bearing the words, "Notary Public-Redaction of all legal papers,'
which defendant explained meant the drawing of legal papers, he was
holding himself out to the public as being in the business of drawing
papers and legal instruments for hire, and where in pursuance of such
business he drew a bill of sale and chattel mortgage for a person and
gave advice as to filing the same, for which services he charged and
received a fee, defendant was practicing law without a license in viola-
tion of section 270 of the statute. Id.
(4) SAME-SOLICITING BUSINESS FOR LAWYERS FORBIDDEN-PENAL LAW,
SECTION 270-CONSTITUTIONAL LAW.
The provision of section 270 of the Penal Law making it a misdemeanor
for any person to make it a business to solicit employment for a lawyer,
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