106 N.Y.S. 319 | N.Y. App. Div. | 1907
Lead Opinion
The defendant was convicted of a misdemeanor and he appeals from the judgment of conviction and orders denying motions to set aside the verdict and for á new trial and in arrest of judgment,
The judgment of conviction is attacked principally upon two grounds, which will be considered in the order named, (1) that the learned recorder erred at the trial in admitting, against defendant’s' objection, certain testimony; and (2) .that the indictment was not found within two years after the alleged crime was committed.
First. At the trial the People called, as a Avitness. one Rosston, who, after, stating that he was employed by the defendant from the middle of November, 1899/ until March, 1901, during which period he sold mineral Avaters, was asked to state whether he sold to customers water from Poland water bottles, bearing Poland water labels, Avhicli Avas not Poland water. The question was objected to by. defendant’s counsel, and the objection sustained. After the People had rested, defendant Avas called as a Avitness in his own behalf, and on direct examination he testified that he did not.have any clerk Avhom he- directed to sell “ any water than Poland .Water out of Poland Water bottles.” On cross-examinatiqn, referring to the testimony he had thus given, he stated : “Mr. Osborne asked medid I ever instruct any clerk to sell Hygeia Water as Poland Water and I ansAvered ‘ No.’ That is correct.” He was then interrogated as to directions given to the Avitness Rosston and denied that he had directed him to refill Poland water bottles Avi'th other Avater .and sell it as Poland Avater, or that he knew .that any such practice prevailed iii the establishment of which he had charge. After the defendant had rested, Rosston Avas recalled and permitted, against defendant’s objection, 'to contradict liis statement, testifying that defendant had instructed him. to refill-Poland bottles with other water and to sell the same as .Poland AVatei, and that he knew of other instances in. which he had given such instructions. . '
I think thip testimony was admissible. The defendant had denied giving Rosston or any of his employees instructions to refill the Poland water bottles Avith other Avater and sell the same as Poland Ayater. If Ayas admissible for the purpose of contradicting defend
This brings us to the consideration of the main question argued on the appeal, viz., that the indictment was not found within two years after the commission of the crime for'which defendant has been convicted. The Code of Criminal Procedure provides that"an indictment for a misdemeanor must be found within two years after its commission (§ 142), and that an indictment is found when duly presented by the grand jury in open court and there received and filed. (§ 144.) The misdemeanor for which the defendant ivas indicted and convicted was committed on the 18th of March, 1902. The indictment was not filed until May 25,1904, more than two years thereafter. Thé defendant’s objection, therefore,.to the validity of the judgment of conviction is good if he. is in a position to raise the question. At the opening of the argument of the appeal before us the learned district attorney asked permission to file'with and have considered as a part of the record on the appeal certified copies of certain papers -which he claimed showed that the-prosecution of the defendant for the crime of which he had been convicted was originally instituted in the Court of Special Sessions, and that the defendant moved to have the same transferred to the Court of General Sessions, and included in his motion papers was a stipulation, signed by-himself and his counsel, that if such motion were granted he would not plead in that court or raise the question that the- indictment Was not found- within the time prescribed in section 142 of the Code of Criminal-Procedure ; that the motion was granted upon that condition, the stipulation being incorporated in and made a part of the order; that the Statute of Limitations had not then run, and did pot until nine days thereinafter. This court, however, refused to receive such papers or to consider them upon the appeal, deeming it the better practice in a criminal case that the questions sought.to be reviewed should be determined solely from the record. There
I am of the opinion that the defendant is hot in a position to raise that question. At the opening of the trial' the defendant’s counsel moved to dismiss the indictment upon the ground' that it did not state facts sufficient to constitute a cause of action, at the same time saying: “I do not wish to discuss it. . I am limited by the agreement which I wish to hand up to your Honor, and I do not wish to go outside of. that agreement in making my motion,” to which the court responded: “ I think you are precluded by this stipulation,” and the counsel replied : “You think-1 am?” To which the court said.: “Yes.” Ho exception was taken to this ruling, the defendant’s counsel apparently acquiescing therein. What the agreement was to which counsel referred the record fails to disclose.' Thereupon the trial jrroceeded without a suggestion that the Statute of Limitations Lad run, or that the indictment had not been found in time. Hor was that question raised or even suggested at-the close of the People’s case.; After the People had rested, defendant’s counsel moved to .dismiss the indictment upon the ground that the facts given in evidence did not constitute a crime; that there was no evidence that the defendant had committed an Offense ; that the' People’s testimony ténded to show .that on the. eighteenth of March certain men.went into the -store and ordered Poland water; “ got some water; took it to a chemist and analyzed it, and upon the chemist’s analysis, that was not Poland Water; that is the long and short of this .case.” A further discussion took place, to the effect that the water was sold by a clerk, and that the defendant could not be held responsible unless he participated in the. act. The court denied the motion, and then a further motion" was made to direct the jury to acquit, on. the ground that' the evidence was not sufficient and did not prove the allegations set out in the indictment. The motions were denied, and thereupon defendant entered into-his defense. Ho motion was made at' the close of the entire case, nor was any request made- to have' the jury instructed with reference to the Statute of Limitations, or. any ■ suggestion made by defendant’s, counsel that the defendant could not be convicted
The question is quite similar to the one raised in People v. Austin (63 App. Div. 382; affd. on opinion of Hirschberg, J., 170 N. Y. 585). In that case the defendant was indicted for a murder committed some fourteen years before the indictment was found. He was convicted of manslaughter — an indictment for which must be found within five years (Code Crim. Proc. § 142), and the question as to whether the statute applied merely to the finding of the indictment or was a complete bar to the conviction was raised for the first time on appeal.
Mr. Justice Hirschberg, after reviewing the authorities' on either side of the question, said: “ This brief reference to the conflicting decisions' upon the subject is made because, as has been said, it involves the only point argued upon the appeal; but we do not feel called upon to decide the question in this case, inasmuch as it does not appear to have been properly raised in the court below. * * * The point could only be raised by proof upon the trial under the plea of not guilty (People v. Durrin, 2 N. Y. Crim. Rep. 328, and cases cited) and by some appropriate motion or request to charge.”
The Court of Appeals has recently adhered to the doctrine that even in a criminal case a question of law will not be considered on appeal unless raised at the trial by an exception. (People v. Huson, 187 N. Y. 97.) In the case last cited the defendant was indicted for manslaughter, but was convicted of assault. The Appellate Division reversed the judgment upon questions of. law only, the
■ . The motion in arrest of judgment brought up only the jurisdiction of the court over the subject-matter of the indictment, Avlnch is not disputed, and the question whether the facts stated in the indictment constitute a crime. (People v. Huson, supra.)
The motion to. set .aside the verdict as .against the-evidence and the weight of evidence did not- raise the question, nor did the motion for-a neAV trial Upon the minutes upon all the statutory grounds.
The defendant, not having raised the question at the trial, cannot noAv be heard upon the subject." Other errors, are alleged, especially in the exclusion of evidence; but, after an examination of the record,. 1 do not think any of them would justify a reversal of the judgment. .
The defendant had a fair trial; the' evidence established his guilt, and I think the judgment of conviction and orders appealed from should be affirmed.
Laughlin, J., concurred; Lambebt and Houghton, JJ., dissented.
The affirmance of this judgment is upon the ground' that- the question of the-'Statute pf Limitations was, not. specifically raised at
I concur in this view. It is undoubtedly a general rule in this State that questions of law in criminal cases can only be raised by exceptions (People v. Huson, 187 N. Y. 97) ¿ but that rule is not of universal application; for, as was said in People v. Bradner (107 id. 4): “If the record discloses upon its face that the court had no jurisdiction * * * or some other defect in the proceedings which could not be waived or cured and is fundamental, it would, as we conceive, be the duty of an appellate'tribunal to reverse the proceedings and conviction, although the question had not been formally raised in the court below and was not presented by any ruling or exception on the trial.” In the record in the case now before us it appears that at the time the indictment was filed more than two years had elapsed since the commission of the offense with which the defendant was charged. It is now urged by the respondent that inasmuch'as the attention of the-court W'as not called specifically to that fact, the defendant must be regarded as having waived the protection of the statute.
While it is true that the date named in the indictment is in some respects immaterial,'yet if the proof showed that the indictment was found two years and some months after the commission of the alleged offense and the defendant was during the whole of that time within the State of New York, a jurisdictional question might have arisen. The statute requires that an indictment must be found within two years after a misdemeanor is committed. The Statute of Limitations in a criminal case differs materially from that applying to civil actions. It is in effect a statute of oblivion (Whart. Cr. Pl. & Pr. [8th ed.] § 316); it banishes the offense from legal memory and extinguishes for all purposes of prosecution what othérwise would be a punishable criminal offense. But section 142 of the Code of Criminal Procedure must be considered in connection with section 143 of that Code which provides among other things that “ no time during which the defendant is not an inhabitant of or usually resident, within the State or usually in personal attendance upon business or employment within the State is part of the limitation,” and it •seems to me that it was necessary for the defendant to show that
Dissenting Opinion
(dissenting):
I am. unable to concur in the conclusion reached by a majority of this court, that a man- may be convicted of a misdemeanor, where the' indictment upon its face, in full accord with the establislied facts, shows- that the alleged crime, of the grade of a misdemeanor, was committed more than two years before the finding of the indictment, and where the defendant has challenged the conviction at every point in. the proceeding. Section 142 of the Code of Criminal Procedure provides that an “ indictment for a misdemeanor must be found within two years after its commission,” and there is no dispute that the acts constituting the misdemeanor for which the defendant has been convicted.occurred on the 18tli day of March, 1902. The indictment was found on the 25th day of May, 1904, and no one questions that had this fact been called to the attention of the court by an objection and exception, the defendant; would,have been entitled to a reversal of the judgment of conviction, for the reason that under the law the defendant, having passed by the two years fixed by the statute, was not guilty of any crime then punishable by the laws of this State. -The facts stated in the indictment, and -supported by the pi’oof, did not con
It is not disputed that the defendant pleaded not guilty to the charge; that he moved the court to set aside the verdict, for a new trial, and in arrest of judgment, upon the ground that the facts charged in tire indictment and proved upon the trial did not constitute a crime, and that exceptions were taken to the denials of these motions. But it is contended that because the defendant failed to call tlie attention of the court in express' words to the fact that the crime was barred by the statute he did not raise on the trial and is deprived of the privilege of raising that question upon this, appeal. This case in its peculiar facts stands alone. The defendant was first proceeded against in the Court of Special Sessions. Subsequently an order of this court, at Special Térm, was secured, sending the case to the Court of General Sessions, on condition that the defendant would enter into a stipulation not to raise the defense of the Statute of Limitations, the time .being then about to expire. The defendant made this stipulation, and the grand jury having found an indictment, he pleaded not guilty to the same and went to trial. At the opening of the trial the defendant’s counsel moved to dismiss the indictment upon the ground that it did not state facts sufficient to constitute a crime, at the same time adding: “ I do not wish to discuss it. I am limited by the agreement which I wish to hand up to your Honor, and I do not wish to go outside of that agreement in making my motion.” To this the court responded, “ I think you are precluded by this stipulation.” • Counsel replied, “You think I" am?” The court answered “Yes.” Ho exception was taken, though it is to be observed that there was no ruling upon the motion directly, but merely the expression of an opinion-that the counsel was precluded by the stipulation. ■
It is true that the record before us does not show what this stipulation was; but it is evident that there was a stipulation before the court, and that this stipulation was permitted to prevent the defendant from more specifically calling to the attention of the court the inherent defect in the indictment. ■■ But it can hardly be doubted that a statute of limitations, in criminal cases, has a different effect than in civil cases. The statute is.read into every crime, and it says, in effect, that unless action is taken by the State within the time
When the defendant pleaded not guilty'to the charge of the-indictment, and upon every motion to dismiss, or in arrest of judgment, upon the ground that the facts stated and proved did not constitute a then existing crime as against' himself, lie raised the question of the Statute of Limitations, as much as though he had in specific words called the.attention, of the court to the fact that the indictment was not found within -two years of the .commission of the ofiense,. for in jaw there was no then existing crime as shown by the indictment and the proofs; and upon the general objection that the facts do not constitute a crime the existence' of every fact necessary to constitute a crime is Challenged.
It is probably true that the defendant,, by refusing to challenge the sufficiency-of the indictment, or the proofs under it, might be deemed to have waived his rights, and he could- n.ot be heard to raise this question for the first time on appeal. (Sentenis v. Ladew, 140 N. Y. 463, 466.) But it. is one thing to deliberately refuse to raise a question'upon trial, and quite another to enter- into a stipulation in advance .not to raise such a question; the one is a waiver of rights, the other'is an attempt toi-interfere with the public policy' of the State, which the cohirts do not permit. Mr. Chief Judge Eael in Shapley v. Abbott (42 N. Y. 443, 452) clearly points out-this distinction. “ A party may;” says the learned jurist, “ without trenching-upon public policy, xvaive the defence of usury, or of the Statxite of. Frauds, or of the Statute of Limitations, by -omitting to set up the defence Avhen sued. And he may waive; his statxite .exemption by turning out exempt property when the officer comes with the execution; but no case has occurred to me in which a party can, in. advance, make a xmlid 'promise.that a statute founded'in public- policy shall be inoperative.” ' Clearly ,a statute limiting the
But it is suggested that the limitation of time, as fixed by section 142, is to be read and construed in connection with section 143 of the Code of Criminal Procedure, and that it was for. the defendant to show that he was not within the exception. Section 143 provides that “ if when the crime is committed the defendant be without the State, the indictment may be found within the term herein limited after his coming within the State ; and no time during which the defendant ■ is not an inhabitant of, or usually resident within, the State, or usually in personal attendance upon business or employment within the ."State,, is- part of the limitation.”
It .seems' to me a new theory of criminal law that the defendant is obliged to show that he has not been a fugitive from.justice during the time that has elapsed between the, commission of the alleged crime and the finding of the indictment, for the language of the statute clearly indicates that it is not intended to cover any
I think the judgment of conviction should be reversed.
Houghton, J., concurred.
Judgment and orders affirmed.
