121 Misc. 624 | N.Y. Sup. Ct. | 1923
The relator, Nicholas Petrucci, after being adjudged guilty of a criminal contempt of court, committed in the immediate view and presence of the court, was sentenced to imprisonment for a period of thirty days and to pay a fine of $250. The commitment was made by Judge Crain, a judge of General Sessions, who at the time was sitting as a magistrate. The order of commitment was made and entered on September 5, 1923. It provides for the term of imprisonment and also for an additional term of thirty days, commencing at the expiration of the definite sentence, in default of the payment of the fine imposed. The relator brings this proceeding by writ of habeas corpus to test the validity of the order of commitment.
It appears from the commitment that on May 9, 1923, Police Commissioner Enright laid before Judge Crain, then sitting as a
The relator claims that the magistrate was a city magistrate and as such he had no power to punish him as for a criminal contempt for the acts set forth in the commitment. It is my opinion that in this proceeding Judge Crain was not a city magistrate acting under the limited authority of city magistrates, but was a magistrate within the meaning of section 619 of the Code of Criminal Procedure and had full authority to commit as for a criminal contempt in the cases specified in that section of the Code.
“Albany, N. Y. April 22, 1923.
“ Magistrate Joseph E. Corrigan, ■
“ 3 East Tenth Street,
“ New York City:
“As a member of the Legislature I am doing all in my power to have a legislative investigation of the Police Department of the City of New York. There are in the safe of the Assembly documents, correspondence and letters showing that the Mullan-Gage Law is an instrument of oppression, and is being used as a black jack by high officials of the Police Department to extort money from the citizens of New York, as well as giving the opportunity to the police to engage in boot legging themselves.
“ Do you know that the police are fighting among themselves as to the division of spoils from bootlegging?
“ Call a mass meeting appealing to Governor Smith to remove Enright pending a legislative investigation of the Police Department.
■ “ Ninety percent of the police are honest and want to do their duty, but as Enright and his graft collectors in the department are using their power to make the citizens pay up or shut up, the Legislature will pass a bill to rid the Police Department of the crooks in it.
“ You can publish this telegram if you desire.
“ Lotus A. CtTVILLIER.”
The inquiry being material to the issue involved, was Judge Crain authorized to determine whether the relator’s response, “ I cannot remember,” was in fact a refusal to answer? It.might be an answer or it might not be. If the witness truthfully stated that he could not remember, it would be a sufficient answer to the inquiry, but if he gave that response when in fact he did remember, it is not an answer and such a response under the circumstances would amount to a contempt. And when the magistrate, after a consideration, of all the accompanying circumstances, including the demeanor of the witness on the stand, comes to the deliberate conclusion that the witness does remember, notwithstanding his denial of recollection, his decision upon that question ought not
Ordered accordingly.