162 A.D. 517 | N.Y. App. Div. | 1914
Lead Opinion
Briefly, the facts are as follows:
One Thaw having been indicted for murder and acquitted as insane, was committed to and at the time of the occurrences in question was confined in the Matteawan State Hospital, of which one Russell was medical superintendent, and as such was invested with power, subject to certain limitations, to discharge Thaw. On or about November 2, 1912, Thaw agreed to pay defendant $25,000, provided he was discharged before January 1, 1913, but if discharged thereafter and before July
It appeared that prior to defendant’s indictment the Governor, under section 8 of the Executive Law (Consol. Laws, chap. 18; Laws of 1909, chap. 23), had appointed a committee to investigate certain State departments, including the State hospitals for the insane, and that this investigation included an examination into the truth of certain rumors concerning the existence of a conspiracy to release Thaw by bribery. Russell testified as a witness before the committee and swore that the defendant had sought to bribe him. By direction of the committee, subpoenas were issued to secure defendant’s attendance before it as a witness. The defendant having learned that subpoenas had been so issued, caused his counsel to appear before the committee, and it was arranged that defendant should appear and he sworn without being
When arraigned on the indictment in question, defendant attempted to file a special plea in which he claimed immunity on the ground that he had been compelled to testify before the committee as to the subject-matter of the indictment. The court refused to accept the plea and directed that a plea of not guilty be entered, whereupon the defendant moved to quash the indictment on the same ground as that on which his special plea was based, which motion was denied. The defendant also unsuccessfully moved to have his aforesaid special plea substituted for the plea of not guilty and by various other motions the defendant unsuccessfully sought to avail himself of his alleged immunity. The court based its rulings adverse to the defendant on the ground that the question of immunity was one to be raised and presented at the trial.
Although the learned district attorney does not concede that defendant was not an involuntary witness before the commit tee, I think it clear that he was. The power of the Governor to appoint a committee and the authority of the latter to issue subpoenas and compel the attendance of witnesses is not denied; the circumstances, therefore, under which defendant gave his testimony show that it was not voluntarily given. (People v. Sharp, 107 N. Y. 427, 445; United States v. Armour & Co., 142 Fed. Rep. 808, 822, 823.) But this question is not material.
For reasons, to which I shortly refer, defendant does not assert any claim to immunity under article 13, section 3, of the Constitution; he rests his case on section 381 of the Penal Law (formerly Penal Code, § 79), which reads as follows:
“ § 381. Offender a competent witness. A person offending against any provision of any section of this chapter relating to bribery and corruption, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment
It will be seen that the 2d paragraph of the section provides that “testimony so given shall not be used in any prosecution,” and that the last paragraph provides for immunity to one who may testify “ to the giving of a bribe which has been accepted.” The distinction between the right to complete immunity to one who has testified, and a provision, whether constitutional or statutory,that testimony “shall not be used” against the witness in any subsequent prosecution, is plain and has been judicially determined. (State v. Lloyd, 152 Wis. 24; Commonwealth v. Cameron, 229 Penn. St. 592, 597.) It is obvious, therefore, that the action of the court in denying defendant’s motions, to which I have referred, and holding that the question of immunity was one to be raised by objections to evidence offered on the trial, was proper, unless defendant w;as protected by the last paragraph of section 381 of the Penal Law. (People v. Cummins, 153 App. Div. 93, 112, 113; affd., 209 N. Y. 283.) That he was not so protected is patent, because • it is undisputed that he did not testify before the committee “to the giving of a bribe which has been accepted. ” On the contrary, it is conceded that he denied that he had directly or indirectly been in any way connected with any bribery or any attempt to bribe Bussell.
The question still remains whether on the trial the People made improper use of the testimony given by the defendant before the committee. The defendant’s position as stated in the brief of his counsel is, “that his constitutional rights were invaded by his being compelled to be a witness against himself, in the sense of his evidence having been used to work up the case against him,” and that under the theory of the Lewisohn case (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253) he had been compelled to disclose to the committee circumstances that enabled the People to complete the subsequent criminal case against him; in short, that he had been compelled by that testimony to supply “ the missing links in the facts from which the district attorney later drew the inference of guilt.” How this testimony was used against him on the trial, according to counsel, is that the court in charging the
The judgment should be affirmed.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Concurrence Opinion
(concurring):
I concur in the opinion of my brother Hotchkiss.
The indictment charged that on the 16th day of December, 1912, the defendant did feloniously offer to one John W. Russell, a public officer executing the functions of a public office, to wit, medical superintendent of the Matteawan State Hospital, a bribe of $20,000, with the intent to influence the said John W. Russell as a public officer in the exercise of his power and functions upon and concerning the detention of one Thaw in the said Matteawan State Hospital. The defendant was tried at a Trial Term of the Supreme Court before Mr. Justice Seajbury, which trial resulted in a verdict of guilty as charged in the indictment.
The defendant offered a special plea which alleged that prior to the indictment the Governor of the State, under and by virtue of section 8 of the Executive Law (Consol. Laws, chap. 18; Laws of 1909, chap. 23), appointed three persons to examine and investigate the management and affairs in all boards, departments, bureaus or commissions of the State; that thereafter the said three persons named accepted said appointment and commenced an investigation of the affairs of the Matteawan State Hospital for the Criminal Insane; that during that investigation Dr. John W. Russell was subpoenaed to attend before the said persons appointed by the Governor, was sworn and examined regarding the affairs of the said institution, and, among other things, testified that this defendant had offered him a bribe of $20,000 in connection with an effort to liberate Thaw from said institution, Thaw at said time being an inmate thereof; that the said three persons so investigating the affairs of the Matteawan State Hospital issued a subpoena demanding the attendance of this defendant before them to give evidence in connection with the
In his testimony before these investigators annexed to the said plea, the defendant testified that he was admitted to the bar of the State of New York sometime in October, 1912, and that he became acquainted with Russell in June or July, 1912. The substance of the defendant’s testimony before the investigators was,, that he denied ever having offered Russell any money or attempting to bribe Russell in any way, but alleged that Russell asked him for a bribe which the defendant refused. The court refused to allow this plea to be interposed upon the ground that there was no provision of law for the interposition of such a plea. The defendant then on the same formal plea and the facts therein alleged moved to quash the indictment, which motion was also denied. The defendant then refused to plead, the court ordered a plea of not guilty to be entered, and upon these facts the defendant claims that he was entitled to immunity from prosecution on a charge of bribery or attempt to bribe Dr. Russell by reason of his testimony before these investigators. The question of the defendant’s immunity is really the only serious question presented on this appeal, as we all agree that the evidence amply justified the jury in finding the defendant guilty and that no error was committed on the trial which would justify a reversal of the judgment.
The claim of immunity is based upon the provisions of section 381 of the Penal Law, which provides: “A person offending against any provision of any section of this chapter relating to bribery and corruption, is a competent witness against another person so offending, and maybe compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in
In considering the question presented certain provisions of the State Constitution should be borne in mind. Section 6 of article 1 of the Constitution expressly provides that no person shall be compelled in any criminal case to be a witness against himself, and this provision is to be read in connection with sections 2 and 3 of article 13 of the Constitution. By these sections the Constitution itself undertook to define the crime of bribery and an offer or promise to' bribe. Section 2 provides that any person who “shall receive or consent to receive, directly or indirectly, anything of value or of personal advantage, or the promise thereof, for performing or omitting to perform any official act, or with the express or implied understanding that his official action or omission to act is to be in any degree influenced thereby, shall be deemed guilty of a felony.” Section 3 provides that “Any person who shall offer or promise a bribe to an officer, if it shall be received, shall be deemed guilty of a felony and liable to punishment, except as herein provided. No person offering a bribe shall, upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor, if he shall testify to the giving or offering of such bribe. Any person who shall offer or promise a bribe, if it be rejected by the officer to whom it was tendered, shall be guilty of an attempt to bribe, which is hereby declared to be a felony.”
It is evident that article 34 of the Penal Law was intended to carry into effect this provision of the Constitution. It is
In considering the claim of the defendant in this case, we must clearly keep in mind the particular questions which have been presented to the courts in the various cases that are cited and relied upon by the defendant. In one class of cases the question that was presented was whether the defendant was compelled to testify against himself in violation of the provisions of the Constitution to which attention has been called. That has arisen when he has objected to testifying and the question has been presented to the court as to whether he was or was not to he compelled to testify. That class is illustrated by the case of People ex rel. Lewisohn v. O’Brien (176 N. Y. 253). In that case the relator was called as a witness before a magistrate, upon an information laid before the magistrate by the district attorney against one Canfield, accusing Canfield of maintaining certain premises for gambling. The witness objected to answering upon the ground that his testimony would tend to criminate him. The district attorney promised immunity from prosecution if the witness would answer and read to him section 342 of the Penal Code. The witness, however, still declined to answer, whereupon the relator was committed for contempt. The relator was brought before a justice of the Supreme Court on a Writ of habeas corpus, who dismissed the writ, hut on appeal to this court (81 App. Div. 51) that order was reversed and the relator discharged, which on appeal to the Court of Appeals was affirmed (176 N. Y. 253). And both in this court and in the Court of Appeals, following the case of Counselman v. Hitchcock (142 U. S. 547), it was held that it was not sufficient that the evidence that he should give could not be used against him, hut
Another class of cases is where the People have attempted to use admissions or statements made by a defendant in a criminal proceeding that he had been compelled to give in an investigation concerning charges against himself or others under the provision that the testimony of the witness so testifying shall not he used against him. And one of the cases in which that question was presented is People v. Sharp (107 N. Y. 427).
The third class of cases involves the question here presented as to the immunity from punishment for a crime to which a person guilty of a crime is entitled in consequence of his having-testified in an action or proceeding in relation to the facts upon which his conviction was based, an illustration of which is the case now before us.
' It is quite evident from the nature of the question that the authorities in determining the first two classes or questions that have been referred to have no relation to the question of immunity. Whether or not a witness is to be compelled to testify in a proceeding or investigation depends upon quite different principles than a claim of immunity from conviction of a crime with which he is charged because of the fact that he has testified in some other proceeding or investigation. The general rule in all civilized communities is that persons who have committed crime subject themselves to the punishments provided by law therefor, and, to establish immunity from conviction of a crime, the offender must bring himself clearly within some provision of law which grants such immunity. If there is no express provision of law granting immunity, the fact that he testified in another action or proceeding to facts which would tend to convict him of the crime cannot he the basis of a claim for immunity. Nor does he obtain immunity because of a provision of law that the evidence which he gave in the other action or proceeding in which he has testified shall
As before stated, the Constitution has made an offer or promise to bribe, if it be rejected by the officer to whom it was tendered, a felony. It provides no immunity for any person who should be guilty of that offense, but the fundamental law of the State makes bribery or an offer or promise of a bribe a crime, and apparently it is the only crime that is created by the Constitution, except the misdemeanor provided for by section 5 of the same article. Section 3 of the article, which makes this offer or promise to bribe a felony, provides for a case where
When the Constitution undertook to regulate this subject of bribery and attempt to bribe, and punishment therefor, and to prescribe that the persons who should be guilty of a violation of its provisions were guilty of a felony, it seems to me it took away from the Legislature any power to limit or restrict the punishment which it provides for those who are guilty of violating its express provisions. I do not understand upon what principle it can be said that an act of the Legislature which attempted to repeal the express provisions of the Constitution
If this is the proper construction of the Constitution it is quite plain that if possible we should construe any legislative provision giving immunity in such a way as to make it in accordance with the express commands of the Constitution, or, if it appears that the Legislature has gone beyond the power given it by the Constitution to legislate upon this subject of immunity, so far as it has attempted to go beyond the power granted, such legislation would he void as violating the constitutional prohibition. But it is quite clear that this section 381 of the Penal Law, so far as this defendant is concerned, does not afford him immunity. As before stated, we have nothing to do with the question as to whether or not this defendant could have been compelled to testify before the commission if he had refused or interposed his privilege as a witness, nor
The fallacy that pervades the whole argument of the appellant is that we are not dealing with the question as to whether or not the defendant could have been compelled to testify before the investigators, but as to the effect of his testimony. We may assume that he was an unwilling witness before the commission, as a subpoena had been issued for his attendance, and his willingness to obey such a subpoena when he understood it was issued made. him none the less a compulsory witness. But even though called as a witness, the extent to which he was required to testify in such an examination was not prescribed by law, nor was it determined by any ruling of the commissioners. He answered freely and voluntarily all questions that were asked him, and certainly if he considered that any question that was asked could involve his prosecution for a crime he could have claimed his privilege and objected to answering. But no testimony that he gave, no answer to any question that was asked him, in any way tended to convict him of a crime, for all of his testimony was to the effect that he was perfectly innocent of any crime; that it was Eussell who was the offender. It seems to me it would be an abuse of any statute giving to a person who" assisted in the conviction of a criminal immunity because of such assistance when his whole testimony was for the purpose of clearing himself from
As before.stated, there is no other question in this case that requires consideration. The defendant was clearly guilty. His claim that he was retained as a lawyer to procure the discharge of Thaw, when he had just been admitted to practice in this State, for which Thaw was willing to leave in his hands as a fee the sum of $25,000, is too preposterous on its face to receive any consideration. If the contract-had been that Thaw would pay him $25,000 when he succeeded in procuring his release, there might have been some basis for the claim; -but the paying of such a fee in advance, if it was for legal services, was preposterous, while it is entirely consistent and is only consistent with the fact that the money was given to the defendant to bribe Russell, and was so understood by the defendant when he received it. The defendant’s legal qualifications, if bribery was the scheme, were quite immaterial. The important thing was that he was intimate with Russell, who, it was assumed, would have considerable power in securing Thaw’s release, and the whole case shows beyond a doubt that the scheme from the beginning was for the payment of this $25,000 to the defendant to procure the release of .Thaw by the bribery of Russell or those in charge of the asylum. On the whole testimony the jury were entirely justified in convicting the defendant, and no error was committed which requires any consideration or which would justify a reversal.
The judgment is, therefore, affirmed.
McLaughlin, Clarke, Scott and Hotchkiss, JJ., concurred.
Judgment affirmed.