
    COUNTY COURT—COUNTY OF RICHMOND,
    August, 1914.
    THE PEOPLE v. INTERNATIONAL NICKEL CO.
    Jurisdiction—Failure to allege acts within State of New York, ob THAT ACTS ALSO CONSTITUTED A CRIME IN A SISTER STATE.-PENAL Law 1530—Injury to health by noxious gases, etc.
    Where defendant in Bayonne, State of New Jersey, contaminated and infected the air in and around his plant so that the gases, etc., were wafted into Richmond and New York Counties, N. Y., in order for the courts of this state to acquire jurisdiction it was necessary to allege in the indictment and to prove on the trial that the acts of the defendant not only constituted a crime in the State of New York but also constituted a crime of a corresponding nature in the State of New Jersey.
   Tiernan, C. J.:

The defendant was indicted by the grand jury of this county by indictment Nc. 348 with having on the 17th day of April, 1914, and for more than a year prior thereto, maintained and operated an industrial .plant, with furnaces, boilers, chimneys and machinery, in the operation and refinement of “ mat ” and other ingredients of an impure character, issuing a large quantity of sulphurous and other fumes and gases, odors and smoke of a deleterious character, which were emitted through various apertures, windows and chimneys in and about the buildings comprising the industrial plant of the defendant, thus permeating, beclouding, contaminating and infecting the air in and around said industrial plant and the navigable waters of New York Bay and the Kill Von Kull, which said fumes, gases, odors and smoke were wafted by the winds in and about the County of Richmond and State of New York, whereby a considerable number of persons were rendered unsafe in life and the use of their property in violation of section 1530 of the Penal Law of the State of New York.

The defendant contends that the indictment is insufficient in that it does not appear that the alleged crime was committed by the defendant within the jurisdiction of this court, and that therefore the Grand Jury of Richmond County had no power to inquire into the alleged crime or present the same to the court.

Section 252 of the Code of Criminal Procedure provides that “ the grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and to present them to the court.” Subdivision 4 of section 284 of the Code of Criminal Procedure provides that “ the indictment is sufficient where the crime was committed at some place within the jurisdiction of the court, except where, as provided by sections 133 to 138, inclusive, the act, though done without the local jurisdiction of the court, is triable therein.” That the jurisdiction of the grand jury is coextensive with the powers exercised by the Supreme Court of this State is so clearly established as to make a discussion of that point unnecessary, and it is also well settled that the Penal Laws have no extra-territorial force (secs. 22 and 39, Code of Criminal Procedure; Western Coal Co. v. Kilderhouse, 87 N. Y., 435; People v. Martin, 38 Misc., 67, 76 N. Y. Supp., 953, reversing 75 A. D., 396, which was affirmed 175 N. Y., 315; People v. Central R. R. of N. J., 42 N. Y., 283).

This defendant is indicted for a violation of section 1530 of the Penal Law of the State of New York, which provides as follows:

“ A public nuisance is a crime against the order and economy of the State, and consists in unlawfully doing an act or omitting to perform a duty, which act or omission (1) annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons, or (2) unlawfully interferes with, obstructs or tends to obstruct or renders dangerous for passage a lake or a navigable river ® * *, or (3) in any way renders a considerable number of persons insecure in life or the use of property.”

I believe that if the allegations contained in the indictment were proven they would constitute a violation of this section, but, conceding that to be true, the serious question presented here is whether or not the acts constituting the crime as defined by this section occurred within the limits of the State of New York. The indictment clearly sets forth that all of the acts complained of as a result of which the gases and other deleterious fumes were wafted by the winds to the County of Richmond occurred in the City of Bayonne, State of New Jersey. I fail to find from a close examination of the indictment that the defendant has done or failed to do any act or acts within the boundaries of the State of New York that would give this court jurisdiction. It is undoubtedly true, as contended by the learned district attorney, that the result or effect of the acts of the defendant corporation done in the State of New Jersey is felt-in the'County-of Richmond and State of New York and causes annoyance to the inhabitants thereof, which acts, resulting in the same annoyance, if committed within the County of Richmond or the State of New York, would constitute a nuisance as defined by this section of the Penal Law. Can the defendant, therefore, be indicted for the effect or results of its acts irrespective of the acts themselves? I think not.

“ A crime is an act or ommission forbidden by law, and crimes are divided into two classes: I. A felony; II. A misdemeanor ” (sec. 3, Penal Law). In the case at bar none of the acts complained of actually occurred within the County of Richmond and State of New York. The learned district attorney has submitted for the consideration of the court upon this motion an exhaustive brief containing a number of citations in opposition to the motion to dismiss the indictment, and places great reliance upon the following cases: People v. Arnstein (157 A. D., 56), People v. Adams (1 Comst., 173), People v. Bodkin (132 Cal. 231), People v. Staples (91 Cal. 23-29). In all of these cases, together with others cited by him, some of the acts constituting the máme occurred in each State, and the Arnstein case was subsequently reversed by the Court of Appeals. The only case that sustains the view taken by the learned district attorney is State v. Lord (16 New Hampshire, 357) but this case has never been followed or considered good law in our State.

The learned district attorney contends that under section 1933 of the Penal Law, which provides as follows, viz, “ that a person who commits an act without this State which affects persons or property within this State, or the public health, morals or decency of this State, and which, if committed within this State, is punishable, as if the acts were committed within this State,” courts of this State acquire jurisdiction over this defendant. This section, however, must be considered in connection with other sections of the Code of Criminal Procedure, and particularly with reference to sections 133, 136, 137 and 138 thereof, and relates solely to acts done without the State by defendants over whom the State already has jurisdiction. If such were not the case, a citizen of any State might be indicted in this State for violating our laws, although his acts might be entirely legal and proper in the State wherein he committed them.

It will be observed that the gravamen of the charge not only in the sections of the Code defining crimes, but in all of the decisions, is that the acts and not the result of the acts constitute a crime, and as all of the acts complained of in the indictment actually occurred in the State of New Jersey and only the resulting effects thereof are felt in the County of Itichmond and State of New York, the indictment is faulty.

The learned district attorney contends, however, that a defendant is responsible for the natural and probable consequences of his act, and as the emitting of these deleterious arid offensive odors, with the. likelihood of their being wafted by the winds to the County of Richmond and State of New York, was the natural and probable consequence of the acts of the defendant in the conduct of its business, some of the acts necessary to commit the crime defined by section 1530 of the Penal Law constructively occurred in the County of Richmond. Assuming, for the sake of argument, that this contention is correct, does the indictment contain sufficient facts to give the courts of this county jurisdiction? This question has never been decided in this State prior to the finding of the indictment herein, but the Court of Appeals, by its decision in the case of the People v. Arnstein, reversing 157 Appellate Division, 56, which decision was rendered since the finding of the indictment and the argument of the motion herein, has clearly defined the law by construing subdivision 1 of section 1930 of the Penal Law, which provides for the punishment of crimes committed in whole or in part within this State. Cuddeback, J., .in writing the opinion, said: “ It is necessary to show in the indictments that the acts charged against the defendant constituted a crime against the laws of the State of New York and also constituted a crime of a corresponding' nature under the laws of Massachusetts and Connecticut.” In that case the defendant was charged with committing acts partly in the State of New York and partly in the States of Massachusetts and Connecticut, resulting in the crime of grand larceny. In order, therefore, for the courts of this State to acquire jurisdiction over this defendant it is necessary to alleged in the indictment and to prove upon the trial that these acts of the dedefendant not only constituted a crime in the State of New York, but also constituted a crime of a corresponding nature in the State of New Jersey, and, failing to do so, the defect is necessarily fatal.

The demurrer to the indictment is therefore sustained.  