THE ALBANY LAW JOURNAL. 16221 1. ceny under the statute defining larceny as THE ALBANY LAW JOURNAL feloniously taking the personal goods of an A Monthly Record of the Law and the Lawyers other. The defendant's plan was to remove Published by THE ALBANY LAW JOURNAL COMPANY, Albany, the meter as soon as the gas inspector had N. Y. Contributions, items of news about courts, judges and law timely interest, are solicited from members of the bar and those interested in legal proceedings. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY. read it, and connect the pipes by means of yers' queries or comments, criticisms on various law ques-rubber hose, this connection being left in place tions, addresses on legal topics, or discussions on questions of until near the time for the reappearance of the gas man, when it was removed and the All communications intended for the Editor should be ad-meters replaced. It was also held in this case dressed simply to the Editor of the ALBANY LAW JOURNAL. that in ascertaining whether the value of the gas taken was sufficient to make the offense grand larceny, the value of the gas consumed upon a number of consecutive days should be added together, and that the gas taken on each separate day did not constitute a separate offense. It was further held that in ascertaining the value, the jury should be guided by the selling price and not by the cost price of Subscription price, Three Dollars per annum, in advance Single number, Twenty-five Cents. ALBANY, N. Y., JANUARY, 1907 Current Topics. gas. An interesting decision on proximate cause is rendered by the Supreme Court of Colorado in Snyder v. Colorado Springs & C. C. D. Ry., 85 Pac. Rep. 686. A passenger on a The Supreme Court of New Hampshire, in crowded car was standing on the platform Hewett v. Woman's Hospital Aid Ass'n, 64 with other passengers, some of whom were on Atlantic Reporter, 190, holds that a hospital the steps below. The conductor, in pushing conducted as a charity is liable for the neglihis way through the crowd of passengers, gence of its manager in failing to notify a pressed the plaintiff against one who became nurse of the contagious nature of a case asangry, and pushed the plaintiff with such signed to her. The court points out that the force that he was thrown from the car, pass-hospital is incorporated under a general ing over the heads of passengers standing on charter, and that although it has no capital the lower steps. The court says that the prox-stock and made no division of profits, and all imate cause of the accident was the action of its property was devoted to charitable uses, he passenger who pushed the plaintiff, and it is liable, and cites a number of English and cites its previous definition of proximate American cases. The court also rejected the cause as that which in natural and continued contention that as the plaintiff was an apsequence, unbroken by any efficient interven-prentice learning a trade, she was not a sering cause, produced the result complained of, vant, and that the corporation was therefore and without which the result could not have relieved of its ordinary duty to her in that occurred. Under this doctrine the company capacity. was held not to be liable. CIA The Circuit Court of Appeals for the Second Circuit in Folwell v. Miller, 145 Federal An unusual prosecution for larceny arises Reporter, 495, holds that the editor in chief in Woods v. People, 78 Northeastern Re- having general supervision of the matter conporter, 607, where the Supreme Court of Il-tained in a newspaper is not responsible for linois holds that the occupant of a building, a libel of which he had no actual knowledge. who removes the meters and substitutes rub-It seems that the publication was caused by a ber hose connections, is guilty of grand lar-subordinate during the absence of the editor in chief. The court points out that it has serve not only as the most efficient safeguar never been really decided that the liability of of the rights and liberties of the people, but the editor is co-extensive with that of the pro- also as the greatest obstacle in the way of any prietor, and declined to approve cases which possible attempt, especially by a popular extend to hold this doctrine. ecutive, to exercise undue authority. The reservation to the contracting States of all powers not explicitly conferred upon the national government, as Mr. George Harvey Judge Wilkes, speaking for the Supreme Court of Tennessee in the case of Memphis truly says, was more than a jealous withState Line R. Co. v. Forest Hill Cemetery Co., 94 Southwestern Reporter, 69, very tersely summarizes the holding of the court with the statement that "the wheels of commerce must stop at the grave." It was sought to have a right of way for the railroad con demned through a portion of the cemetery which had not as yet been used for burial purposes, for the reason that other available nights of way would be more difficult and more expensive to prepare. holding from the government of certain functions of authority which had been possessed and exercised by the separate colonies; it was a direct response to the instinct of individua' freedom, which was the chief cause of, and had been greatly intensified by, the war fo. independence. Encroachment of nationa. sovereignty upon State prerogatives is pre cisely parallel with unwarranted interferenc of the State in the self-government of a city or a township, or with deprivation by the lat ter of a citizen's personal liberty. The fur mental distinction between our theor The Supreme Court of Texas adheres t. government and that of monarchy is fou the doctrine in force in that state that a squat in the recognition by us of the plain citizen ter may secure title to land after ten years as the true possessor of the divine rights possession in spite of the fact that he took claimed by kings, and denied, in their execupossession of the land without any claim of tive capacity, to those whom we select as adright and with the intention of holding the rinistrators of government to serve, not to land if possible against all other claims. In rule, the public. The present proposal, therethis case of Link v. Bland, 95 Southwestern fore, to "obliterate State lines," even to the Reporter, 1110, the land belonged to a rail-"extinction of State authority," involves a road company, and the claimant is given title complete reversal of our basic theory of gov to a quarter section which he cultivated and ernment, and strikes at the very root of perused as his homestead. The decision senal freedom. forms to previous decisions of the Texas court, and is made in spite of the statutory definition that adverse possession must be an actual and visible appropriation of the land, States and of compounding the people into one com commenced and continued under a claim of right inconsistent with and hostile to the claim of another. con More than one hundred years ago Chi~ Justice John Marshall declared that: "No political dreamer was ever wild enough think of breaking down the lines which separate mon mass." Mr. Harvey goes on further to say: "Daily now we behold open and avowed subversions of the fundamenat constitutional principles by neither ineffective political dreamers,' nor Is there danger at the present time that the Constitution may be made a blank paper by even a political organization, but by an active, able construction? A great many close and acute leadership, holds absolute control of one arm of the and resolute clique, which, under most aggressive cbservers think so. The fathers of the repub-government, successfully coerces another and insid lic believed that a written constitution would iously endeavors to influence the court of last resort. a こ 3 १ That, in holding centralization of power to be mere substitution of one regulative authority for another, and not despoilment of the right of the people to govern themselves, those responsible for the 'tendency' are conscious of wrongdoing we neither assert nor believe; circumstances and the glamour of place have really convinced them that all regard for public virtue and all sense of business morality are confined to the governing group; and their conviction that good can come from no other authority constituted among and closer to the people is sincere. Therein lies the same greater measure of danger that recently confronted the country when false principles were personified in a candidate for the presidency, of whose personal genuineness there was no question. "The gravity of the situation, plainly evidenced I by the President's recent declarations upon all conceivable topics, from before the cradle in respect to མཐོང་པའི་ར་ race suicide to after the grave in relation to inheritance taxation, and by constant impatient demands for extension of executive authority, no less than by the outspoken menace in his chief official adviser's amazing public utterance, reached the comrehension of foreign observers with extraordinary pidity, as contrasted with the gradual dawning af understanding respecting it on the part of our own people. The Saturday Review sums up a full statement with terse accuracy in these words: "If Mr. Roosevelt intends his threats for any thing beyond foreign consumption, we may be at the beginning of a constitutional struggle unequalled in danger to the Union since the Civil War.'" Here is something, indeed, to make the average patriotic American citizen pause and think. Mark Twain has been thinking, and, as usual, half in earnest and half in jest, tells some plain truths in his own inimitable way. This is, in part, what he says: 66 Human nature being what it is, I suppose we yst expect to drift into monarchy by and by. It a saddening thought, but we cannot change our nature; we are all alike, we human beings; and in our blood and bone, and ineradicable, we carry the seeds out of which monarchies and aristocracies are grown; worship of gauds, titles, distinctions, power. We have to worship these things and their possessors, we are all born so, and we cannot help it. We have to be despised by somebody whom we regard as above us, or we are not happy; we have to have somebody to worship and envy, or we cannot be content. In America we manifest this in all the hanker after them, and when we get a chance we buy them for cash and a daughter. Sometimes we get a good man and worth the price, but we are ready to take him anyway, whether he be ripe or rotten, whether he be clean and decent, or merely a basket of noble and sacred and long--descended offal. And when we get him the whole nation publicly chaffs and scoffs-and privately envies; and also is proud of the honor which has been conferred upon us. We run over our list of titled purchases every now and then, in the newspapers, and discuss them and caress them, and are thankful and happy. "Like all the other nations, we worship money and the possessors of it-they being our aristocracy, and we have to have one. We like to read about rich people in the papers; the papers know it, and they do their best to keep this appetite liberally fed. They even leave out a football bull-fight now and then to get room for all the particulars of howaccording to the display heading-Rich Woman Fell Down Cellar-Not Hurt.' The falling down the cellar is of no interest to us when the woman is not rich, but no rich woman can fall down cellar and we not yearn to know all about it and wish it was us. "In a monarchy the people willingly and rejoicingly revere and take pride in their nobilities, and are not humiliated by the reflection that this humble and hearty homage gets no return but contempt. Contempt does not shame them, they are used to it, and they recognize that it is their proper due. We are all made like that. In Europe we easily and quickly learn to take that attitude toward the sovereigns and the aristocracies; moreover, it has been observed that when we get the attitude we go on and exaggerate it, presently becoming more servile than the natives, and vainer of it. The next step All of which is natural, for we have not ceased to be human beings by becoming Americans, and the human race was always intended to be goverened by kingship, not by popular vote. is to rail anl scoff at republics and democracies. "I suppose we must expect that unavoidable and irresistible circumstances will gradually take away the powers of the States and concentrate them in the central government, and that the republic will then repeat the history of all time and become a monarchy; but I believe that if we obstruct these encroachments and steadily resist them the monarchy can be postponed for a good while yet.” The Federal Supreme Court has sustained ancient and customary ways. In public we scoff at the validity of the New York stock transfer titles and hereditary privilege, but privately we law, enacted early in 1905 against much the State, and that a cause of action will lie against the State for the recovery of these meneys erroneously paid into the treasury as taxes. strenuous opposition and since then relied the rulings of the comptrollers more than upon to yield the State a handsome annual $1,000,000 has been improperly collected by sum. The act imposes a tax of 2 cents on the sale of any share of stock, irrespective of its market value. For the year 1906 the State received from this source not less than $6,000,000. It was attacked on a number of constitutional grounds-that it restricted interstate commerce; that it deprived men of property without due process of law, and that it was an arbitrary tax which involved discrimination against a particular species of personalty. The Governor and Patrick. Governor Higgins has commuted the sentence of death, in the case of Albert T. Patrick, who has so long rested in the shadow of the electric chair, un der conviction of the murder of William Marsh Rice to imprisonment for life. This official act of clem ency, on the part of the retiring Governor, has been anticipated, and, together with the reasons set forth by Governor Higgins in his memorandum, will, we think, be generally approved. It is not too much to say that this remarkable man, Patrick, whether he is guilty or not, has suc ceeded, during his prolonged fight for life, in shak ing the belief of a great many who originally thought him guilty; to say nothing of the vast num ber who have been impressed with the belief that the methods of the district attorney in trying the case were utterly unfair and sensational, so bad that Justice Denis O'BRIEN, in his minority opinion when the Court of Appeals refused to grant Patrick a new trial, declared that he would not hang a sheepstealer on such evidence or words to that effect. If Patrick was guilty, then the actual murder was committed by Charles F. Jones, Rice's valet, who was alleged to have killed his aged employer with chloroform at Patrick's instigation. Patrick was convicted on one of the half-dozen stories told by The Federal Supreme Court finds no merit in any of the objections. A sale of stock certificates, it says, is not interstate commerce; it is not a contract for the transportation of property from one State to another. What States the parties come from is immaterial; a State may make parties to a contract pay for the help of its laws. Stamp taxes might be regarded as discriminatory, but neither cconomists nor statesmen have condemned them. The rule against discrimination must be applied with great caution, and it must be borne in mind that property that passes by delivery cannot in many cases be subject to stamp taxes. The opinion of the court seems to be based on the theory that tax laws must not be lightly upset on technical and farfetched interpretations of constitutional restrictions. The highest court in this State has also sustained the validity of the act, but has decided against that portion of the orig inal law which was enacted by the legislature of 1906. The part of the law which has been declared null and void is that which sought to enact into the statute the ruling of the State comptrollers in office since the original law was placed on the books, that there must be paid a tax of two cents per share on all shares of stock dealt in. This tax was to be the same on shares of the par value of $100 and those of a par value of less than $100. This ruling was held to be manifestly unfair by the brok-alty shall not be inflicted. ers in shares of mining and industrial concerns, where the par value of the stocks were much below $100. It is reported that under ones, and thereupon that able liar took leg-bail for Texas, and is now in parts unknown. There is every reason to suppose that in order to convict Patrick Jones was given immunity; thus freeing, for a con sideration, the actual murderer and cowardly as sassin of his employer, if his own testimony was worthy of belief. The Court of Appeals decided, by a bare four-t three preponderance, not to give Patrick a new trial: but Governor Higgins holds that when three of the judges of that distinguished tribunal have said that material errors were committed to the prejudice of Patrick's rights, such as ought to give him a new trial, he is justified in deciding that the death pen What will be the next move of Patrick? That he will be satisfied with the mere escape from death is not at all likely. Whether it is mere play-acting or not, he appears determined to convince his fel lows that he did not murder Rice, and that Rice, in jury, and that the scientific demonstration of Aufact, died a natural death. He will while away his prison-life, secure, now, against the chair, in many new plans to secure a full pardon, unless all previous signs and estimates of the man are faulty.-Albany Argus. : 0: Report of Select Committee of the MedicoLegal Society on Embalming by the Right Brachial Artery, and Its Relation to the Case of Albert T. Patrick-Preliminary Report. To the Medico-Legal Society: Your select committee on embalming by the right brachial artery, after a full and careful examination of the whole subject and of the papers and evidence, and as the result of our best judgment, report and recommend the adoption by the Medico-Legal Society of the following resolutions: Resolved, That when a body is embalmed by the right brachial artery, in the manner that the body of Rice is shown by the evidence to have been embalmed, the embalming fluid does and must of necessity enter and suffuse the lungs of the person mbalmed. Resolved, That this is not a matter of opinion, but is a demonstrable fact, within the personal knowledge and experience of every practical embalmer in the land. Resolved, That it must be conceded as a fact, that at the public demonstration on August 9, 1906, of embalming a human dead body in the city of New York, in West Twenty-third street, under the supervision and direction of the chairman of this committee, before the assembly of embalmers, the embalming fluid was seen and shown to enter and perneate the lungs by every person present. Resolved, That it is the judgment of this body that this incident was an absolute demonstration that the fluid does enter the lungs of a dead human body thus embalmed, and was a scientific demonstration of an absolute fact. That the question is entirely outside of the domain of the opinion of exerts, and is a simple question of fact, conceded and known to all embalmers who have personal knowledge of the methods of embalming the dead. Resolved, That after a careful examination of the whole case of Albert T. Patrick, the evidence before the Court of Appeals, the report made to this society by the previous select committee. the evidence of the medical witnesses and others given be fore the jury who condemned Patrick, that the embalming fluid could not and did not enter the lungs of Rice, were giving testimony upon the subject concerning which they had no knowledge or practical experience. That their evidence mi-led that gust 9, 1906, at New York city, before the body of practical embalmers, was a complete and absolute scientific demonstration of the innocence of Albert T. Patrick of the charge on which he was convicted. Resolved, That the Medico-Legal Society memorialize the Governor of the State and the Governor-elect that in the opinion of this body Albert T. Patrick is innocent of the murder of Rice. That Rice died from natural causes and that Patrick should have a full pardon by the Executive. The Influence of Law Books. That literature has exercised, and continues to excrcise, a profound influence upon the thoughts and actions of mankind everyone will readily concede. Some, perhaps, might hesitate before agreeing that what is true of the fair domain of letters as a whole is equally true of the special corner of it which is devoted to the cultivation ad propagation of law. Yet that it is so, no student of the history of jurisprudence can have failed to notice. It was so in the history of Roman law, and it is so in the history of our own. It may be conceded, indeed, that legal treatises are not in general esteemed particularly notable contributions to literature, yet now and again an epoch-making work makes its appearancea work which at once arrests attention and makes its influence felt within the profession and oftentimes far beyond it. Such a book was Blackstone's Commentaries, which, of course, although quite familiar by name to every student of the law, is, like many another classic, only admired at a distance, |