Supreme Court, October, 1919. [Vol. 109. is a mere forecast or prophecy. It asserts nothing. It only predicts. The plaintiff was not justified in relying upon it, and cannot be relieved of the marriage compact though the defendant failed to fulfill his pledge. 66 The cases cited furnish no support. In Moore v. Moore, 94 Misc. Rep. 370, the marriage was annulled because the defendant at the time of entering into it had no intention of living with the plaintiff, and it was held that intention " was an existing fact, following the decision in Adams v. Gillig, 199 N. Y. 314. But even this rather extreme case does not aid the plaintiff. Here there is no claim the defendant did not intend to live with the plaintiff as her husband. On the contrary the proof shows otherwise. In Dorgeloh v. Murtha, 92 Misc. Rep. 279, the plaintiff was under the age of consent, and there was the further finding that neither the plaintiff nor defendant intended to be married and were coerced into having the ceremony performed. Counsel states that in April, 1919, Mr. Justice Benedict granted an annulment in Weinstein v. Weinstein on the identical grounds urged here. But, he adds, no opinion was written. Without knowing the reasons that prompted that decision, it cannot be accepted as an authority, as it seems to run counter to the general rule. The complaint must be dismissed and judgment go for the defendant. Judgment for defendant. Misc.] Supreme Court, October, 1919. PEOPLE ex rel. CHARLES PRESSLER, Relator, v. THE WARDEN OF THE CITY PRISON, Respondent. (Supreme Court, Kings Special Term, October, 1919.) Habeas corpus - when discharge on writ of, denied what sufficient to justify a warrant of arrest criminal law. An information stating that two days before certain tools were found in premises that had been burglarized, they were sold to and were in the possession of the defendant, is sufficient to justify a warrant of arrest charging him with the burglary, and his discharge on a writ of habeas corpus will be denied. HABEAS CORPUS proceedings. Harry Kopp, for relator. Harry E. Lewis (Harry G. Anderson on the brief), district attorney, for respondent. CROPSEY, J. The relator seeks discharge on a writ of habeas corpus. He is detained under a warrant issued by a city magistrate charging him with the crime of burglary. The contention is that the information is insufficient. This states, in substance, that shortly after a burglary had been committed certain tools were found in the burglarized premises, and that those identical tools were in the possession of the accused two days before the burglary, having been sold to him at that time. It cannot be questioned that proof of the facts stated in the information would be admissible against the accused. People v. Lagroppo, 90 App. Div. 219, 227, 228; affd., 179 N. Y. 126; People v. Del Vermo, 192 id. 470, 480, 481; Commonwealth v. Scott. 123 Mass. Supreme Court, October, 1919. [Vol. 109. 222, 229, 237; Lawson Presump. Ev. rule 106. In fact, relator's counsel does not contend that such proof would be inadmissible, but urges that it would be insufficient to justify a conviction. That, however, is not the question which the magistrate must decide. But even if it were, such proof would be sufficient to warrant a finding of guilt. If an accused were shown to have had conscious and exclusive possession of certain articles shortly before a burglary was committed and those identical articles were found in the burglarized premises directly after the crime was committed, and there was no further proof, a jury or the trier of the facts would be justified in inferring and finding that they had been left there by the person in whose possession they had previously been shown to be. See People v. Giordano, 213 N. Y. 575, 579, 582. Wigmore, in his Principles of Judicial Proof, at pages 164 and 165, quotes from Burrill's A Treatise on Circumstantial Evidence the following: "The participation of the accused in the crime proved to have been committed is shown by those physical facts or appearances which connect him with it; affording so many natural coincidences, harmonizing with the supposition of his guilt. They are, in other words, the traces, marks, or indications, more or less distinct and impressive, of the presence of a particular criminal agent; and may be enumer ated in the following order: "4. Objects left at the scene of crime, by the supposed offender, being identified as belonging to him or previously seen in his possession. Of this description of traces of the person are the instruments of the crime themselves; such as the pistol, razor, knife or hatchet used in committing a murder; articles of dress; such as a hat, a glove, a neck-cloth, a cloak, and Misc.] Supreme Court, October, 1919. the like. These furnish obvious means of identifying the criminal." In Lawson's Law of Presumptive Evidence the following rule (108) is laid down: "Possession by the accused of the means for committing the crime charged against him may raise a presumption of his guilt." And the author gives various illustrations in support. of the rule. See also Underhill Crim. Ev. (2d ed.) $ 423. Where property shown to have been in premises which were burglarized was shortly after the commission of the crime found in the conscious and exclusive possession of the accused, such proof justifies the inference and hence the finding that it was taken by him and that he committed the crime in question. And no other proof is necessary. Knickerbocker v. People, 43 N. Y. 177; Stover v. People, 56 id. 315; People v. Weldon, 111 id. 569; People v. Wilson, 151 id. 403; People v. Friedman, 149 App. Div. 873. The facts alleged in the information in the present proceeding make out a stronger case against the accused than in the cases last cited. In those, the possession of something which had been taken from the scene of the crime was held to warrant the inference that the possessor had taken it. In the present case, the thing found at the scene of the crime was shown to have been in the possession of the accused shortly before the offense was committed; and the presumption that naturally follows that a situation shown to exist continues gives added weight to the proof here. The writ is dismissed and the prisoner is remanded. Writ dismissed. Supreme Court, October, 1919. [Vol. 109. PEOPLE ex rel. AUGUST SMALL, Relator, v. JOHN P. LEO et al., Defendants. (Supreme Court, Kings Special Term, October, 1919.) Certiorari - when writ of, to review determination of board of appeals sustained garage — building zone resolution of July 25, 1916, §§ 4(15), 7(e). The superintendent of buildings of the city of New York refused a permit for the erection of a garage, upon the ground that it would violate section 4(15) of the building zone resolution of July 25, 1916, which prohibits the erection of a garage for use by more than five motor vehicles in a business district subject to the exceptions contained in section 7(e) of said resolution. Upon an appeal taken by an intervenor, the owner of premises concededly located in a "business zone as established by said resolution, the board of appeals reversed the decision of the superintendent of buildings and granted the desired permit. Held, that a writ of certiorari to review the determination of said board, reversing the decision of said superintendent, will be sustained and the decision under review reversed. In the provision of section 7(e) of the building zone resolution which reads: "In any portion of a street between two intersecting streets in which portion there exists a garage" the words "in which portion" mean that portion within the business district, and a contention that because of the existence of such a garage on a street one block west of the northwest corner of the street where the proposed garage was to be erected, the decision of the board of appeals was correct under said section 7(e), was not tenable for the reason that the alleged existing garage was not within the "business district" zone. CERTIORARI by the People, on the relation of August Small against John P. Leo and others, constituting the board of appeals of the city of New York. Levy, Gutman & Goldberg, for petitioner. |