People v. Phelps — 44 N.Y. St. Rep. 737

Majority

p. 737

The People, Resp’ts, v. John H. Phelps, App’lt.

(Supreme Court, General Term, Third Department,

Filed April 4, 1892.)

Headnote

Appeal—Reversal on questions op law.

The decision of this case by this court, 39 St. Rep., 598 , was upon questions of law only.

Motion to amend the order of the general term, nunc pro tune? so as to show that the judgment and conviction was reversed and a new trial ordered on questions of law only. See 39 St. Rep., 598 .

C. A. Kellogg, for motion ; V. P. Abbott, opposed.

We do not think, under the circumstances of. this case, that the district attorney has been guilty of such loches in moving, as to preclude the making of this motion, or justify the court in refusing to grant the relief asked on that ground. The principal question, therefore, to be considered, is whether the general term in reversing this conviction did so upon the exercise of its discretion upon the facts, or whether its decision was upon the questions of law onljn

We think from an examination of the opinion of the learned presiding judge, which was concurred in by his associates, that the case was disposed of by the general term entirely upon questions of law, and that the court refused to reverse on questions of fact It is-true the judge refers to the disputed questions of fact upon the trial, but concludes his discussion of the same in these words: “ There was a sharp conflict as to the facts, which we need not discuss.” He then proceeds as follows: “ The important question raised in this case, is whether the word ‘ advised ’ does or does not imply that the advice must be followed in order to constitute the-crime. All other words in the section in a similar position include some other act other than mere speech. Such as 1 prescribes,’ 1 supplies,’ 1 administers,’ 1 uses or causes to be used.’ And when the word 1 advises ’ is used the connection is 1 advises or causes a woman to take. ’ ”

The learned judge then proceeds to discuss at some length the provisions of § 294 of the Penal Code, and the other sections bearing upon the same subject, in connection with the charge in the indictment, and concludes his opinion as follows: “We are-of opinion that mere advice to take medicine when no medicine, drug or substance of any kind is taken, and when, therefore, no-injury has been done to any one, cannot be the crime of abortion.” From this examination of the opinion it seems clear that the judgment and conviction were reversed upon questions of law only», and that the order should be so amended as to show that fact

p. 738

Let the order heretofore entered be vacated and the order submitted on this motion be entered nunc pro tune and stand as the -order of the general term on this appeal.

Putnam and Herrick, JJ., concur.