83 N.Y. 464, Cowley v. People

Citation:83 N.Y. 464
Party Name:EDWARD COWLEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.
Case Date:January 18, 1881
Court:New York Court of Appeals

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83 N.Y. 464

EDWARD COWLEY, Plaintiff in Error,



New York Court of Appeal

January 18, 1881

Argued December 16, 1880.

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Charles Cowley for plaintiff in error. As 'the active manager and representative' of the corporation which had the care and custody of the boy, the plaintiff in error did not come within the meaning of the act under which he was indicted. (Ferrett v. Atwill, 1 Blatch. 151; U.S. v. Sheldon, 2 Wheat. 119; Daggett v. State, 4 Conn. 61; R. S. title 7, § 8; title 8, chap. 1, § § 8, 18, 19.) The fact that the person charged with this offense has the means of doing what the act requires, is a necessary ingredient in this offense, and must be both alleged and proved. (Regina v. Chandler, Dearsley's C. C. 453; Queens v. Downs, 1 Q. B. Div. R. 25, in 1875.) It was error to charge that if the plaintiff in error did not have the means, etc., it was his duty to apply to the public authorities for relief. (Comm. v. Green, 1 Ashmead, 289; People v. Brooks, 1 Den. 457; Comm. v. Kirby, 2 Cush. 577.)

Daniel G. Rollins for defendant in error. The photographs of the child showing his condition at the time he was taken from the custody of the plaintiff in error were properly received in evidence. (Ruloff v. The People, 45 N.Y. 213; Cozzens v. Higgins, 1 Abb. Ct. of App. Cas. 453.) Any offense which is of such a nature that it may either be committed upon a single day, or continue over several days, may properly be described in an indictment as having been committed on a day certain; and such indictment will be sustained by proof that the various acts or neglects constituting the offense were committed or omitted upon a single day, or upon several days. (1 Bishop's Cr. Proc. [ 3d ed], § 397; Regina v. Firth, 11 Cox's C. C. 234; 1 Chitty's Crim. Law, 225 [star paging]; Rex v. Bleasdale, 2 Car. & Kerw. 675; Reg. v. Welman, Dearsly's C. C. 188; Brown v. State of Ohio, 18 Ohio St. 496; The King v. Moore, 2 Leach, 575.) The instruction

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to the jury that the neglect must be found by them to be willful, that is knowing and intentional, was correct. (The People v. Brooks, 1 Den. 457; Comm. v. Green, 1 Ashmead, 299; King v. Holland, 5 Durn. & East, 618; Reg. v. Bubb, 4 Cox's C. C. 455; Reg. v. Downs, 13 Id. 111; Gardner v. People, 62 N.Y. 299.)The charge that 'if the defendant did not have the means to provide for the boy Louis Pictor, it was his duty to apply to the proper authorities, and if he willfully neglected so to do, he is guilty of the offense charged,' was proper. (Queen v. Mabett, 5 Cox's C. C. 339; Queen v. Downs, 13 Id. 111.)


An act of the legislature was passed in 1876, entitled 'An act to prevent and punish wrongs to children.'(See Laws of 1876, chap. 122, p. 95.) It enacts that whoever, having the care or custody of any child, shall wilfully cause or permit the life of it to be endangered, or the health of it to be injured; or it to be placed in such a situation that its life may be endangered or its health be likely to be injured, shall be guilty of a misdemeanor. (Id., § 4, p. 96.)

The plaintiff in error was indicted under this statute. We have to do with but two of the counts in the indictment, the first and the second. The first charges that he wilfully neglected to provide a child known as Louis Kulkusky, alias Louis Victor, with, and to give to him, proper, wholesome and sufficient food, clothing and means of cleanliness, and thereby did wilfully cause and permit his health to be injured. The second charges that he did wilfully neglect to provide the child with, and to give and administer to him, proper and sufficient medicine and medical attendance when the child was sick, diseased and ailing and requiring the same, and did wilfully cause and permit his health to be injured. Each of these two counts charge that the plaintiff in error then had the care and custody of the child. They allege the neglect to have been on a day named. On the trial of the indictment the jury found the plaintiff in error guilty. No question is made by the plaintiff in error but that the wilful deprivation of sufficient

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food, in quality, kind and quantity, and of needed medicine and medical attendance, are within the meaning and intention of the fourth section of the act, as we have given it above.

1. The first question that arises on the points made and argued in this court for the plaintiff in error is, that he does not come within the words of the act, 'whoever having the care and custody.' It is argued that he did not have the care and custody of the child. It seems that the plaintiff in error was the secretary of a benevolent institution duly incorporated, known by the name of 'The Shepherd's Fold.' It had a board of trustees. It was subject to the visitation of the Supreme Court and of the State Board of Charities and Corrections. It seems, however, that the plaintiff in error was in the actual charge of the house and the household in which the child dwelt. He was the head of the household, the provider for it, the authoritative director of all its internal affairs. Nearly every practical act in the management and conduct of it was done by him or was under his guidance. Had he given charge that the child should have other or more food, different or more raiment, more frequent administration of medicines, or medical attendance, they would have followed. What the child had of these, and that he had no more than he did have, was in conformity to his rules and because of his directions. The care of the household and its inmates, the custody of them, centered in him. He was the master there, and others were under him. It is idle to claim that the actual physical care and custody of the child was not in him, as the practical arbiter of the daily routine of the house and the family. True, penal statutes must be construed strictly when against the accused person. The letter of the act may not be extended by implication or equitable construction. But even in penal laws, the intention of the legislature is the best method to construe the law; though truly, that is to be deduced from all the words that it uses. (Heyden's case, 3 Co. 18, 19, n. B.) We think that when the legislature said that whoever, having the care or custody of any child, shall wilfully

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permit the life of such child to be endangered, it meant by those words a sentient being who could will and do of his own good pleasure; and that such a one is not without the close purview of the act, because an officer of a corporation, an artificial entity that cannot will or do, save through sentient beings. It may be conceded that the legal control of the child was in the corporate body, which was the ultimate depositary of power and authority over it, and which could, through its board of trustees, supersede the plaintiff in error in the actual control, care and custody of the boy. But we...

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