182 A.D. 871 | N.Y. App. Div. | 1918
I think that the court was not empowered to impose a sentence with the maximum of ten years. The defendant was indicted, arraigned and tried upon an indictment for “ Attempted Bribery.” The count of the indictment submitted to the jury charged that the defendant “ did feloniously attempt to give arid offer and cause to be given and offered * * * the sum of Twelve hundred fifty dollars in money and a promise and agreement therefor.” The corresponding language of section 371 of the Penal Law under which this count is made reads: “ A person who gives or offers, or causes to be given or offered, a bribe,” etc., “ or any promise or agreement therefor.” The verdict was a general one of “ guilty.” The minutes show that the jury “ came into Court, and being called, say that they did find the defendant Henry M. Bennett guilty of Attempted Bribery as charged in the indictment,” and the order of judgment states: “ Indicted for Attempted Bribery and convicted of Attempted Bribery as charged in the indictment by the verdict of a jury * * *. Whereupon it is ordered and adjudged * * * that the said Henry M. Bennett for the felony aforesaid whereof he is convicted, be imprisoned * * * under an indeterminate sentence,” etc. The court denied the motion in arrest of judgment, made upon the ground that pursuant to section 261 of the Penal Law the sentence could not exceed one-half of the term prescribed by said section 371. The opinion handed down shows that the court concluded that attempted bribery is made a crime by section 371, and where the attempt is the crime the provisions of the Penal Law (260, 261; 262) do not apply. But, as the court says in its opinion, “ It is conceivable that there may be an attempt to commit the crime of offering a bribe,” and then proceeds to an illustration, we must conclude that the disposition made by the court rests, not upon its view that any
I think it germane to consider whether there can be an attempt at this crime as the crime is defined by the said section 371." The learned district attorney in his points
The charge of the indictment is that the defendant attempted to give and offer and caused to be given and offered to the juror the sum of $1,250 and a promise and agreement therefor. Thus the indictment follows the statutory language save that the specification of the offense is, instead of disjunctive, conjunctive. The pleading in the conjunctive was good, and conviction of any one of the offenses was sufficient, i. e., of giving, or of offering, or of promising, etc. (Boric v. People, 91 N. Y. 5.)
The argument of the impossibility of any attempt is advanced upon the principle that “ there cannot be an attempt of an attempt,” and both the learned judge and the learned district attorney cite Darrow v. Family Fund Society (42 Hun, 245; affd., 116 N. Y. 537). And the proposition seems to be this: To offer or to promise or to agree is essentially an attempt at bribery and hence an attempt to offer or to promise or to agree, etc., is an attempt of an attempt. The fallacy is found in the fact that the statute does not prescribe only that the giving of the bribe (the completed act) is the crime, but also that an offer or a promise or an agreement, each in itself, is the crime. And because this is so, such an offer or promise or agreement is not an attempt at the crime, but such offer, promise or agreement is the crime. And an attempt at such offer, promise, or agreement is an attempt to commit said crime, not an attempt at an .attempt. So when the defendant was charged with an attempt to offer and cause to be offered and promised or agreed he was charged with an attempt of acts that in themselves constituted the crime as defined in the said statute. In Darrow’s Case (supra) the crime considered was necessarily complete in the attempt inasmuch as the crime was attempted suicide. For, as there is not and cannot be the crime of suicide (Penal Law, § 2301), it followed that the very attempt was the complete crime. In State of Nevada v. Sales (2 Nev. 268), which presented the corruption of a juror, the Supreme Court dismissed the indictment in application of the principle of Darrow’s Case (supra). But the court had before it the crime of embracery, which it defined as “ an attempt by either party, or a stranger, to
It is entirely logical that the jury fastened upon the concrete thing that was undisputed, -namely, that McCarthy at that interview between him, the defendant and McQueen, handed $100 in marked bills to the defendant, and that the jury concluded from that fact that there was satisfactory proof of an intent to pay the money, or part of it, on account to the juror. But that money never came into the hands of the juror, because the defendant at that interview was compelled to hand it over to the. district attorney. Hence the crime of “ giving ” was never completed, but the jury could infer that the admitted acceptance of the money by the defendant was “ An act, done with intent to commit a crime,” and, therefore, an attempt. (See Penal Law, § 2.)
Incident to the contention that the proof did not justify submission to the jury, it is argued that -there was no corroboration of McCarthy, as he was an accomplice. But the proof is sufficient to sustain the conclusion that McCarthy prosecuted the affair with the knowledge, countenance and approval of the court, the district attorney and the attorneys in the action. I think that he was not an accomplice. (People v. Noelke, 94 N. Y. 137; People v. Mills, 91 App. Div. 331; affd., 178 N. Y. 274.) The testimony of McCarthy even shows that before he took one step in the affair he overheard the defendant stating to Ferguson the defendant’s ability to control the juror and the monetary possibilities therefrom, and, therefore, McCarthy “ did not lure ” defendant •“ to the commission of crime; ” but only offered to him an opportunity. (See People v. Mills, supra, 342.) It is ¿Iso urged that the record does not show that the juror in person was the object of the attack, or that the money was to go to him with
I find no error in the admission of the testimony of the witnesses Van Siclen and Smith. The former was the Supreme Court justice who presided at the trial of the said case of Fuller v. Bradley Contracting Co. Mr. Justice Van Siclen testified to a conference in his chambers with the attorneys for both sides, whereat the district attorney and McCarthy were present, and that the conference was ordered by the witness after one of the counsel had theretofore spoken
I find no error in the trial; the court tried the case properly, and its-conduct of the case is worthy of commendation.' I advise that the judgment of conviction and order should be affirmed, but that the sentence should be set aside and that-it should be ordered that the defendant be brought before this court for resentence on Friday, May 17, 1918. (See People v. Bergman, 176 App. Div. 318, and cases cited; appeal dismissed, 220 N. Y. 704.)
Thomas, Mills, Putnam and Kelly, JJ., concurred.
Judgment of conviction and order affirmed. Sentence set aside, and it is ordered that the defendant be brought before this court for resentence on Friday, May 17, 1918. (See People v. Bergman, 176 App. Div. 318, and cases cited; appeal dismissed, 220 N. Y. 704.)