
    PEOPLE v. INTERNATIONAL NICKEL CO.
    (Richmond County Court.
    August, 1914.)
    1. Grand Jury @=>25—Jurisdiction.
    The jurisdiction of the grand jury is coextensive with the powers exercised by the Supreme Court.
    [Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 62, 68; Dec. Dig. @=>25.]
    2. Criminal Law @=>97—Penal Laws—Extraterritorial Force—Statute.
    Under Code Or. Proc. § 22, prescribing the jurisdiction of the Supreme Court, and section 39, prescribing the jurisdiction of County Courts, the penal laws of the state have no extraterritorial force.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 177-189, 191; Dec. Dig. @=>97.]
    3. Criminal Law @=>97—Extraterritorial Act Taking Effect in State—
    Statute—“Crime.”
    Penal Law (Consol. Laws, c. 40) § 2, provides that a crime is an act or' omission forbidden by law, and section 1530 provides that a public nuisance is a crime against the order and economy of the state, consisting in unlawfully doing an act or omitting to perform a duty, which act or omission in any way renders a considerable number of persons insecure in life or property. Defendant was indicted for allowing noxious smokes to escape from its factory in New Jersey, which were wafted by the winds in and about the county of Richmond in this state, rendering a considerable number of persons unsafe in life and the use of their property. Held that, as the indictment charged no act or acts committed by defendant within the state, it charged no crime to give the court jurisdiction, although the result of defendant’s acts in New Jersey was felt in New York, which acts, if done in New York, would constitute a nuisance as defined by the Penal Law, since one cannot be indicted for the effects or results of acts, irrespective of the acts themselves.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 177-189, 191; Dec. Dig. @=>97.
    For other definitions, see Words and Phrases, First and Second Series, Crime.]
    6=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      4. Criminal Law ©=>97—Crime Committed Without State—Statutes.
    Under Penal Law, § 1933, providing that one who commits an act without the state affecting persons. or property within it, or its public health, decency, or morals, and which, if committed within the state, would be a crime, is punishable as if the act had been so committed, one who, by emitting smoke from its New Jersey factory, injured a considerable number of persons in New York state, an act which would have been a crime and punishable in New York, could not be punished under section 1933, since such section must be construed with sections of the Code of Criminal Procedure, particularly with reference to section 133, providing that one who leaves the state with intent to elude any law against dueling or prize fighting", or to do any act forbidden by such law, or who, being a resident of the state, does an act out of it which would be punishable as a violation of such law, may be Indicted and tried in any county of the state, section 136, relating to crimes on vessels, section 137, providing that, when a crime is committed in the state on board of any railway train, the jurisdiction is in any county through which the train passes, or the passage terminates, and section 138, providing that, when the crime of libel is committed by publication in any paper in the state against one residing in the state, the jurisdiction is in either the county where the paper is published or in the county where the party liable resides, etc., and section 1933 relates solely to acts done without the state by defendants over whom the state already has jurisdiction.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 177-189, 19.i; Dec. Dig. ©=>97.]
    5. Indictment and Information ©=>86—Criminal Act Committed in Two
    States—Allegation of Foreign Law.
    An indictment, which charged defendant with emitting smoke from its New Jersey factory, which blew over to New York, injuring a considerable number of persons, a. crime under the statutes of New York, but failing to allege that such acts of the defendant were criminal under New Jersey law, did not charge an offense against the laws of New York sufficiently to give the courts of the state jurisdiction, since in such cases, where defendant commits an act both in a foreign state and the state of the forum, it is necessary to show in the indictment that the acts charged against the defendant constituted a crime against the laws of the state of the forum and also the crime of a corresponding nature under the laws of the foreign state.
    [Ed. Note.—For other cases, see Indictment and Information, Cení. Dig. §§ 230-2-13; Dec. Dig. ©=>S6.]
    
      GzaFor other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes
    The International Nickel Company was indicted for crime, and it demurs. Demurrer sustained.
    Judgment affirmed in 168 App. Div. 245, 153 N. Y. Supp. 295.
    Albert C. Fach, Dist. Atty., of St. George, for the People.
    George M. Pinney, of New York City, for International Nickel Co.
   TIFRNAN, C. J.

The defendant was indicted by the grand'jury of this county, by indictment No. 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 deleterioús 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 tire 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 county, 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 malee a discussion of that point unnecessary; and it is also well settled that the. Penal Laws have no' extraterritorial force. Sections 22 and 39, Code of Criminal Procedure; Western Coal Co. v. Kilderhouse, 87 N. Y. 435; People v. Martin, 38 Misc. Rep. 67, 76 N. Y. Supp. 953, reversed 77 App. Div. 396, 79 N. Y. Supp. 340, which was affirmed 175 N. Y. 315, 67 N. E. 589, 96 Am. St. Rep. 628; 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 (3) unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a lake, or a navigable river; * * * or (4) 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 thé 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 omission forbidden by law, and crimes are divided into two classes: I. A felony. II. A misdemeanor.” Section 2, 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 App. Div. 766, 142 N. Y. Supp. 842; Adams v. People, 1 N. Y. 173; People v. Botkin, 132 Cal. 231, 64 Pac. 286, 84 Am. St. Rep. 39; People v. Staples, 91 Cal. 23-29, 27 Pac. 523. In all of these cases, together with others cited by him, some of the acts constituting the crime occurred in each state, and the Arnstcin 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 N. H. 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 Richmond 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 and 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 People v. Arnstein, 211 N. Y. 585, 105 N. E. 814, reversing 157 App. Div. 766, 142 N. Y. Supp. 842, which decision was rendered since the finding of the indictment and the argument of the motion herein, 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 was necessary to show m the indictment that the acts charged against the defendants 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 allege in the indictment and to prove upon the trial that these acts of the defendant, not only constituted a crime in tire 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.  