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 NOTES OF RECENT CASES certain rebate. There was also evidence from which it might have been found that the price at which the tobacco was to be sold, if paid without the rebate, would prevent the doing of business at a profit, and that the proposal of the price without a rebate was not intended by the defendant or understood by his customers as bona fide, but was an evasion or subterfuge, and that as a matter of fact no one would purchase or could profitably purchase without conforming to the requirement not to handle the goods of others in order to receive the rebate. Under these circumstances it was held that a request by the defendant for a ruling that if his proposal merely consisted of the offer of sale and the offer of a rebate, the sale was not made on condition that the purchaser should not sell the goods of any other person, was properly refused. PHYSICIANS AND SURGEONS. (Operation on minor without consent of parent.) Mich. — In Bakker v. Welsch, 108 N. W. 94, the Supreme Court of Michigan had to deal with a rather unusual and interesting state of facts, and as a resxilt to decide a question for which neither court nor counsel seem to have found a precedent. A boy 17 years old, afflicted with a small tumor of the ear, for which he had taken treatment, went to a nearby city, and, accompanied by adult relatives, was examined by a surgeon, and went back home, agreeing to return later and hear the surgeon's diagnosis. On his return, accompanied this time also by adult relatives, he agreed to have the tumor removed. While an anesthetic was being administered, preparatory to this operation, the boy died. The question presented was whether the surgeons performing the operation were liable in damages to the boy's father merely because of the fact that he had not consented to the operation, and this is decided in the negative. The decision does not seem to be grounded on any particular principle, but the court merely reviews the facts, draws attention to the absence from the record of any indication that if the consent of the father had been asked it would not have been freely given, or that the physicians knew before the operation that the father had not consented, and concludes that it would be too harsh a rule to hold defendants liable. RECEIVING STOLEN GOODS. (Attempts — Impossibility of Committing Crime.) N. Y. Ct. of App. The case of People v. Jaffe, which was referred to in the August number of this maga zine, and in which the Appellate Division of the New York Supreme Court held that a person could be convicted for attempting to receive stolen

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goods, though in fact the goods were not stolen, has been reversed by the Court of Appeals, the opinion appearing in 78 Northeastern Reporter, 169. As is pointed out by the Court of Appeals, the judgment of the Appellate Division was founded chiefly on the authority of cases in which it has been held that one may be convicted of an attempt to commit crime, notwithstanding the existence of facts unknown to him which would have rendered the complete perpetration of the crime itself impossible, as, for example, what the court terms the " Pickpocket Cases," where, in prosecutions for attempts to commit larceny from the person by pocket picking, it is held not to be necessary to allege or prove that there was anything in the pockets which could be the subject of larceny. Commonwealth v. McDonald. 5 Cush. 265; Rogers v. Commonwealth. 5 Serg. & R. 463; State v. Wilson, 30 Conn. 500. and People v. Moran, 123 N. Y. 254, 25 N. E. 413, are examples of this class of cases. In distin guishing those cases from the present one, the court says: " The crucial distinction between the case before us and the pickpocket cases and others involving the same principle lies not in the possi bility or impossibility of the commission of the crime, but in the fact that, in the present case, the act, which it was doubtless the intent of the defendant to commit, would not have been a crime if it had been consummated. If he had actually paid for the goods which he desired to buy and received them into his possession, he would have committed no offense under section 550 of the Penal Code, because the very defini tion in that section of the offense of criminally receiving property makes it an essential element of the crime that the accused shall have known the property to have been stolen or wrongfully appro priated in such a manner as to constitute larceny. This knowledge being a material ingredient of the offense, it is manifest that it cannot exist unless the property has in fact been stolen or larcenously appropriated. No man can know that to be so which is not so in truth and fact. He may believe it to be so, but belief is not enough under this statute. ... If all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to attempt to do a part of the thing intended. The crime of which the de fendant was convicted necessarily consists of three elements: First, the act; second, the intent; and, third, the knowledge of the existing condi tion. There was proof tending to establish two of these elements, the first and second, but none to establish the third. This was knowledge of the stolen character of the property sought to be acquired. There could be no such knowledge, The defendant couid not know that the property.