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for robbery, that certain bracelet, belonging to another than person robbed, was in defendant's possession before robbery, held admission that ownership and larceny thereof were material to commonwealth's case, so as to justify introduction of evidence of such possession.

4. Criminal law 374-Stealing bracelet was not proof of intention to assault and rob another than owner thereof, in absence of showing of any connection between crimes.

In absence of evidence that robbery charged and larceny of bracelet belonging to another than victim were parts of same plan or in any way connected, stealing of bracelet by defendant was not proof of intention to commit assault and robbery.

5. Criminal law 445-Unexemplified copy of certificate that defendant had pleaded guilty of another crime held inadmissible.

In robbery trial, unexemplified copy of superior court clerk's certificate that defendant had pleaded guilty to indictment for larceny of bracelet belonging to another than victim of robbery was inadmissible.

6. Criminal law 1178-Unargued ground of exception to admission of evidence must be treated as waived.

Ground of exception, not argued by defend.ant, that copy of certificate as to his having pleaded guilty of another offense than that charged was not exemplified, and hence not admissible, must be treated as waived.

7. Criminal law

406(4)-Plea of guilty before committing magistrate is admissible In another prosecution, if relevant.

Plea of guilty before committing magistrate is admissible against defendant in another prosecution for different offense, as well as at trial on indictment, if relevant.

8. Robbery 24(1)-Evidence held to warrant finding that bracelet, for larceny of which defendant had pleaded guilty, was stolen, and in possession of, and offered for sale by, defendant before robbery charged.

In trial for robbery, evidence held to warrant finding that bracelet, for larceny of which defendant had pleaded guilty before committing magistrate, had been stolen, and was in defendant's possession, and offered for sale by him before robbery.

9. Criminal law 1119(1), 1178-Error in denying directed verdict for defendant cannot be considered, where not raised by the bill of exceptions, nor relied on at argument.

Error, if any, in denying defendant's motion for a directed verdict, cannot be considered, where bill of exceptions, purporting to contain all the evidence material to issues raised, does not show that it was raised, and defendant did not rely thereon at argument.

Exceptions from Superior Criminal Court,
Suffolk County; David A. Lourie, Judge.

Frank Crecorian was convicted of robbery,
and he brings exceptions. Exceptions over-
ruled.

F. T. Doyle, Asst. Dist. Atty., of Boston, for the Commonwealth.

W. R. Scharton, and M. Palais, both of Boston, for defendant.

BRALEY, J. [1] The defendant on August 25, 1925, was indicted for assault and battery on Mae Price on May 31, 1925, "with intent to rob her, and thereby did rob and steal from the person of said Mae Price money of the amount and of the value in all of two hundred dollars, of the property of said Mae Price.". But, the defendant having been tried and acquitted on an indictment charging him with the murder in the first degree of Mae Price on May 31, 1925, pleaded his acquittal in bar of the indictment for robbery. It was agreed at the hearing on the plea, that the act which resulted in the murder of Mae Price and the assault which was an element in the robbery were one and the same act and that said assaults were committed on the same person and at the same time. The court sustained the demurrer of the commonwealth to the plea and the defendant excepted. The ruling was right and the defendant's sixteenth and seventeenth requests, for instructions that the jury must find the defendant not guilty because of his former acquittal, were properly denied. The prior indictment for murder and the indictment for robbery were not indictments for the same offense. The jury in the indictment for murder in the first degree could have returned a verdict of guilty of murder in the second degree. But the acts charged in the first indictment would not have warranted a verdict of guilty on the facts charged in the indictment for robbery. The crimes charged are not identical. Commonwealth v. Roby, 12 Pick. 498, 503, 504, 505; Morey v. Commonwealth, 108 Mass. 433, 434; G. L. c. 265, §§ 1, 19.

On

[2-4] The defendant's remaining exceptions in so far as argued relate to the admission of evidence. It appeared in evidence that Mae Price, a married woman, who lived at the Hollis Hotel in Boston, was connected as wardrobe mistress with a theatrical performance being conducted at the Wilbur Theatre, which was almost opposite the hotel. May 30, Mae Price received about $300 not only in payment of her own work but for the services of other women serving under her. She paid two of the women and entrusted $140. another woman with money amounting to There was evidence tending to show that after the performance on May 30, at about 11:45 P. M., she entered a restaurant on Fremont street accompanied by Mary Hughes and remained there until about 12:30 A. M. in the morning of May 31, when she went to the hotel, took the elevator to her room, which was on the fourth floor, where at ten o'clock on the same morning her dead

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

body, showing marks of violence, was found, fendant's exception, introduced a certificate but the money was not found. The common- of the clerk of the superior court for the wealth had the burden of proving larceny county of Worcester, which was marked “Exfrom the person of Mae Price by force and hibit G," that the defendant had pleaded violence and putting her in fear, and that guilty to an indictment charging him with the crime was committed with intent to de- larceny of a bracelet, the property of Beaprive her of the money. Commonwealth v. trice Reynolds, and that by order of the court Clifford, 8 Cush. 215, 216. A witness, one the case was placed on file. It was not an Vacarro, called by the commonwealth testi- exemplified copy and was inadmissible, but fied that on the night of May 28, 1925, he re- this ground of exception, not having been ceived a bracelet from the defendant, who argued by the defendant, must be treated as asked $2.00 for it. The bracelet was identi- waived. In these circumstances the fact of fied as the property of Beatrice Reynolds, the plea of guilty without the case having and was admitted in evidence. The witness gone to judgment, was admissible evidence. further testified that the defendant said to A plea of guilty before a committing magishim, "Take the bracelet and if you are in trate is admissible against the defendant at town when I see you again, you can give me the trial on the indictment. Commonwealth $2.00." The commonwealth was then permitv. Brown, 150 Mass. 330, 23 N. E. 49; Comted, subject to the defendant's exceptions, to introduce evidence that a certain jewelled bracelet, the property of one Beatrice Reynolds, had been in possession of the defendant prior to the robbery, and which she had missed from her room in Worcester on May 25, 1925. The exceptions recite that, "during the course of the trial, it was material for the commonwealth to prove that a certain jewelled bracelet heretofore referred to, the property of one Beatrice Reynolds, had been in possession of the defendant prior to the alleged robbery." We treat this recital as an admission that the ownership and larceny

of the bracelet were material to the Commonwealth's Case. This admission of the defendant justified the introduction of the evidence to which we have just referred and other evidence tending to show that the defendant did not testify, and there was no evidence, that the crime of robbery for which he was on trial had any connection with the larceny of the bracelet. The crimes do not appear to be part of the same plan or in any way connected. The stealing of the bracelet did not under the circumstances furnish proof of an intention of the defendant to assault and rob Mae Price. Commonwealth v. Jackson, 132 Mass. 16; Commonwealth v. Robinson, 146 Mass. 571, 578, 579, and the jury were so instructed.

[5-8] The commonwealth, subject to the de

monwealth v. Haywood, 247 Mass. 16, 20, 141 N. E. 571. The fact that such a plea is offered in another and distinct prosecution does not render it, if relevant, any the less admissible. There was evidence on which the jury could find that the bracelet had been stolen, and that the defendant had it in his possession and had offered it for sale.

[9] The docket entries transmitted by the clerk contain this statement:

"The defendant filed motion for directed ver

diet of not guilty. Motion for directed verdict denied and thereupon said Crecorian by his attorney excepted to the denial of said motion for directed verdict."

But the bill of exceptions on which the case is before us does not show that such motion was filed or ruling was made. If it be assumed that the question was material, the exceptions do not show that it was raised, and we cannot consider it. Burke v. Savage, 13 Allen, 408; New Haven & Northampton Co. v. Campbell, 128 Mass. 104, 107, 35 Am. Rep. 360; Simmons v. Lawrence Duck Co., 133 Mass. 298, 303. It moreover is stated that all the evidence material to the issues raised is contained in the bill of exceptions and the defendant did not rely on this exception at the argument.

Exceptions overruled.

(248 N. Y. 215) PEOPLE ex rel. HORTON et al. v. PREN DERGAST et al.

Court of Appeals of New York. May 29, 1928. 1. Eminent domain 198(1)-Public Service Commission is appropriate agency to determine necessity for condemnation of property useful for operation of single water power site (Conservation Law, § 624, subd. 2).

Public Service Commission is appropriate official agency to make determination as to certificate of necessity for condemnation of lands useful for operation of single water power site, rather than Water Power Commission, authorized by Conservation Law (Consol. Laws, c. 65), § 624, subd. 2, to make determination in case two or more sites exist.

2. Eminent domain 169-"Water power site," situated downstream from existing site, held "single site" within law authorizing determination as to certificate of necessity by Public Service Commission (Conser. vation Law, § 610, subd. 5, and § 624, subd. 3, as amended by Laws 1922, c. 242, § 13).

Water power site, situated down stream from existing developed site, owned by power company having title to river bed and adjacent lands between existing site and proposed site, held to constitute a single site within Conservation Law (Consol. Laws, c. 65), § 624, subd. 3, as amended Laws 1922, c. 242, § 13, authorizing determination as to certificate of necessity by Public Service Commission; "water power site" as defined by section 610, subd. 5, meaning real property, including rights appurtenant thereto or which may become appurtenant when water power is developed.

3. Eminent domain 169-Power company owning dam developing 10,000 horse power owned major part of head and volume of water developing 3,000 horse power for proposed dam, within statute as to issuance of certificate of necessity as condition to condemnation (Conservation Law, § 624, subd. 3, as amended Laws 1922, c. 242, § 13).

Interest in head and volume of usable flow of water at a location where power company owned dam developing 10,000 horse power as against proposed site developing 3,000 horse power with ownership of 28 feet out of 50 feet head of water constituted major part of such head and volume within Conservation Law (Consol. Laws, c. 65), § 624, subd. 3, as amended Laws 1922, c. 242, § 13, authorizing determination as to certificate of necessity by Public Service Commission.

4. Eminent domain 66-Whether power company's use of additional power constitutes public use is subject for judicial inquiry.

Question as to whether power company's use of water power will constitute a public use is a subject for judicial inquiry, and does not lie within jurisdiction of the Legislature or its agents to determine.

5. Eminent domain 35-Power to be gener ated at new site by power company engaged in production and distribution of electricity held for "public use" (Laws 1894, c. 722; Conservation Law, § 624, subd. 3, as amended by Laws 1922, c. 242, § 13).

Power to be generated at new water power site by power company organized under Laws 1894, c. 722, and engaged in producing, transmitting, and distributing electricity to the pub-, lic for light, heat, and power purposes held for "public use" within Conservation Law (Consol. Laws, c. 65), § 624, subd. 3, as amended Laws 1922, c. 242, § 13, authorizing determination relative to certificate of necessity in such cases by Public Service Commission.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Use.]

6. Constitutional law 227-Eminent domain 3, 6-Law granting prior rights to owner of major part of head and volume of usable flow of stream held not denial of equal protection, since power of eminent domain may be withheld or delegated at will of Legislature (Conservation Law, § 624, subd. 3, as amended by Laws 1922, c. 242, § 13; Const. U. S. Amend. 14).

Conservation Law (Consol. Laws, c. 65) § 624, subd. 3, as amended by Laws 1922, c. 242, $13, held not in violation of equal protection clause of the Fourteenth Amendment to Federal Constitution because arbitrarily granting to owner of major part of head and volume of usable flow of stream rights which are withheld from owner of minor part, since the sovereign power of eminent domain may be withheld or delegated at will of Legislature, being restricted only to extent that just compensation must be paid for private property, and use for which it is taken must be public.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Certiorari by the People, on the relation of Percy W. Horton and others, against William A. Prendergast and others, constituting the Public Service Commission. A determination of the Public Service Commission, granting a certificate of necessity to the Niagara, Lockport & Ontario Power Company, was unanimously affirmed (220 App. Div. 351, 222 N. Y. S. 29), and relators appeal by permission. Affirmed.

Delos M. Cosgrove, of Watertown, for appelAllen S. Hubbard, of New York City, and

lants.

Henry W. Killeen, of Buffalo, Francis E. Cullen, Warren Tubbs, and Charles R. Sweeney, both of Buffalo, for respondents.

O'BRIEN, J. Preliminary to the institution of a proceeding to condemn lands belonging to relators, application was made to the Public Service Commission by respondent

(162 N.E.)

Niagara, Lockport & Ontario Power Company for such a certificate of necessity as is provided by section 624, subd. 3, of the Conservation Law (Cons. Laws, c. 65) as amended by chapter 242 of the Laws of 1923. The ap plication was granted, and the commission certified and determined that relators' real property is necessary for the full develop ment and utilization of a certain single undeveloped water power site on the Salmon river in Oswego county for the production of heat, light, or power for sale or distribution to the public, that such heat, light, or power to be produced at that site is necessary for public use, and that the power company already is the owner of the lands and rights constituting the major part of the head and volume of the usable flow for power at that site. The determination has been unanimously affirmed, and the appeal is here by permission of the Appellate Division. After the issue of this certificate, respondent instituted its condemnation proceeding, and has prosecuted it to judgment. Matter of Niagara, L. & O. P. Co., 125 Misc. Rep. 269, 210 N. Y. S. 748. The record in that proceeding is not before us.

Relators argue in the appeal now before us that the Public Service Commission was without authority to proceed under subdivision 3 of section 624, but rather that the jurisdiction to make the necessary determination is vested in the Water Power Commission by subdivision 2 of that section. They urge further that, even assuming subdivision 3 to be the appropriate part of the statute, the Public Service Commission erred in its findings of fact, that the power to be developed was not required for a public use, and that subdivision 3 is unconstitutional.

Before considering the validity of subdivision 3, its meaning and application must be decided. Section 624 of the Conservation Law relates to the acquisition of real property for water power sites in the exercise of the right of eminent domain, and in seven subdivisions regulates that right. Appellants say that subdivision 2 is the appropriate provision controlling the facts at bar, while respondent points to subdivision 3. thorizes condemnation of

It au

"3. Real property on the application of a corporation organized for the production of heat, light or power, after a determination by 'the public service commission that such property is necessary to the full development and utilization of a single undeveloped water power site, a major part of the head and volume of the

usable flow for power at which site is owned by such corporation, for the production of heat, light or power for sale or distribution to the public and that such heat, light or power is necessary for public use. •

"

By the requirements of this subdivision, no power corporation is authorized to condemn unless the Public Service Commission makes a certain determination. That determination must rest upon evidence tending to prove that the site, instead of consisting of several different sites, constitutes a single one, and that the part of it already owned by the power corporation constitutes the major part of the single site. The real property, in order to become subject to condemnation, must be necessary for the full development and utilization of that undeveloped single site. The heat, light, or power sought to be developed by the power corporation must be necessary for a public use.

[1, 2] Approach must first be made to the proposition that the site is a single one. If two or more existed, subdivision 3 would not apply, and the Public Service Commission would have no jurisdiction. Subdivision 2 would control, and the Water Power Commission would have authority to act. Examination of the map which includes the real property owned by the parties, when considered with all the other evidence, supports the determination that the site is a single one. By section 610, subd. 5, the term "water power site" is defined. It means "the real property including rights appurtenant thereto or which may become appurtenant thereto which, when a water power is developed, is necessary or useful for the construction, maintenance and operation of a plant for the use of a fall of water for the generation of power." Respondent owns and has developed a water power site at Bennett's Bridge, the dam, hydroelectric power house, and tailrace of which completed in 1914, are situated upstream from the location of the proposed dam at Lighthouse Hill for the power plant which is the subject of the present appear. Title to the river bed and adjacent lands between the Bennett's Bridge power site and the Lighthouse Hill dam is vested in respondent, except that portion, comparatively small in area, shown in yellow on the map. Respondent by prior adjudication has the right to impound the waters above the Bennett's Bridge dam and to control and vary the natural flow of the river between that site and the proposed one. The practical result is that the proposed site will be available for the generation of power only while the plant at Bennett's Bridge is in operation and on those infrequent occasions when the stream is swollen by freshets. While appellants own dam, its presence would be useless during real property available for the erection of a such times as the water upstream should be impounded by the dam at Bennett's Bridge. Then, too, a dam erected upon appellants'

property would render inoperative any dam constructed by respondent on its land further downstream. Both parties concede that a development by one would prevent a development by the other. This fact supplies the test whether the area below Bennett's Bridge comprises one power site or two. Of course, if each development would cripple the other, only one site can exist. The real property with its appurtenances on the mapped area is not useful for the operation of more than one plant for the generation of power, and therefore only one water power site does in fact exist. Since that is the fact, subdivision 2 of section 624 has no application, and the Public Service Commission rather than the Water Power Commission is the appropriate official agency to make the determination.

at its new power site cannot be refused when demanded by the public. The only theory upon which the Legislature can delegate to respondent the right to take private property is founded upon the right of the general public to use the heat, light, or power generated by respondent. This power company cannot and will not be allowed to avail itself of a right resting upon only one principle and later be permitted to repudiate that principle. It makes no attempt to repudiate. It professes and undertakes to serve the public, and will be held to such profession and undertaking. In its petition to the commission it alleges that it is engaged in producing, transmitting, and distributing electricity to the public for light, heat, and power purposes. Its counsel stated to the commission that it had 17,500 customers, and its general manager testified that, as of December 1, 1923, it had 21,309 customers. Among these are industrial plants, distributing corporations, electric transportation corporations, municipalities, and many miscellaneous residential and commercial retail customers supplied directly by respondent and by subsidiary companies owned by it. It was organized and exists by virtue of chapter 722 of the Laws of 1894, and is engaged in producing, transRemitting, and distributing electricity to the

[3] The interest in the head and volume of the usable flow of water which, by prior adjudication, vests in respondent, constitutes, as matter of fact, the major part of such head and volume. Evidence supports this finding by the commission. At the location proposed for respondent's dam 10,000 horse power can be developed; at that of appellant's only 3,000 horse power. The full head of the river within the project area-that is, the difference in elevation-is 50 feet. Relators make claim to no more than 22 feet. spondent owns the remaining 28 feet of head. This constitutes the major part.

[4, 5] The commission has determined that production of light, heat, and power at the proposed site is necessary for public use, and that relators' real property is necessary for the production of heat, light, or power for sale or distribution to the public. Appellants do not appear to contest the fact relating to the necessity for additional production of heat, light, or power. That is a legislative question. They contend that, as matter of law, respondent's use of the additional power will not constitute a public use. This is a subject for judicial inquiry, and does not lie within the jurisdiction of the Legislature or its agents to determine. Matter of City of Rochester v. Holden, 224 N. Y. 386, 390, 121 N. E. 102. Neither body has assumed to determine this issue of law. Appellants argue that a public use is one which can be demanded and cannot be refused. Matter of Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Matter of Split Rock Cable-Road Co., 128 N. Y. 408, 28 N. E. 506; Pocantico Waterworks Co. v. Bird, 130 N. Y. 249, 259, 29 N. E. 246; Matter of Mayor, etc., of N. Y., 135 N. Y. 253, 259, 31 N. E. 1043, 31 Am. St. Rep. 825. There is no need to consider whether there are any exceptions to that rule. We hold that the use of the additional light, heat, or power to be produced by respondent

By

public for light, heat, and power purposes. It is under a duty to perform such service. By section 5, subd. 2, of the Public Service Commission Law (Cons. Laws, c. 48), as amended by chapter 134, § 10, of the Laws of 1921, the commission possesses jurisdiction, supervision, powers and duties over the manufacture, sale, or distribution of electricity for light, heat, or power, over electrical plants and over persons or corporations owning, leasing, or operating such plants. section 65, as amended by section 37 of the Act of 1921, every electrical corporation is required to provide such service as shall be just and reasonable, and all charges shall be just and reasonable, and not more than allowed by law or by order of the commission. By section 66, as amended by section 39 of the Act of 1921, the commission is empowered to prescribe the efficiency of the electrical supply system of the current supplied by the persons or corporations generating and selling electric current. By sections 71 and 72, as amended by sections 48 and 49 of the act of 1921, the commission may fix just and reasonable rates and charges for electricity manufactured, sold, or supplied for heat, light, or power, and may order improvement in the manufacture, transmission, or supply of electricity. This respondent has in fact ranged itself within the jurisdiction of the Public Service Commission. Niagara, L. &

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