People v. . Most

Citations

• 27 N.E. 970
• 128 N.Y. 108
• 8 N.Y. Crim. 273
• 38 N.Y. St. Rep. 829
• 83 Sickels 108
• 1891 N.Y. LEXIS 965

Syllabus

<p>If in the opinion of the general term of the supreme court upon the appeal from a judgment in a criminal case, for any reason appearing in the record, justice requires a new trial, it has the power in its discretion to grant it. But the court of appeals as a general rule deals with questions of law only, and it cannot review an exercise of the discretion of the general term in granting or refusing new trials in criminal cases.</p> <p>It is competent for the law-making power to extend common law definitions of particular offences so as to include acts not punishable under the common law, and not embraced within the common law definition of the offence. Therefore, identity in the name of offences at common law and under a statute does not necessarily imply that the same precise constituents and no others, enter into both.</p> <p>The offence of unlawful assembly under section 451, subdivision 3 of the Penal Code can only be committed when there is a combination of three or more persons who unite in the threat, or in the attempt to do one or more of the things specified in the. statute.</p> <p>Upon a trial of a defendant who is charged under the statute cited, with the crime of participating in an unlawful assembly by the’ utterance of “ threats tending to a breach of the peace, or an injury to person or property, or any unlawful act,” the participation of others in the threats of defendant may be shown as well by their conduct as by their language. In such case words uttered by one become those of the persons, who by their conduct approve of, and assent to them.</p> <p>Threats made by a defendant under such circumstances are not deprived of their criminal character because they relate to acts not presently done, but to be performed at some future time when affairs should be ripe for the fulfilment of them.</p> <p>Defendant addressed a meeting of anarchists in New York, eulogizing the persons executed at Chicago for the murder of certain policemen and citizens, accus