36 A.D. 284 | N.Y. App. Div. | 1899
The appellant and George H. Nason, coroners of the county of Kings, were indicted for having presented a false and fraudulent claim against the city of Brooklyn for their services as coroners ■during the month of July, 1897, to John R. Sutton, the auditor of the city, for audit, allowance and payment. The bill or account is .set forth in the indictment as follows:
■“ The City of Brooklyn, Kings County,
“ To Edward B. Coombs and George H. Nason, Coroners of Kings Co., Dr. ■
July, 1897, for services in holding inquests.
Dollars. Cts.
For month of July, 1897, 325 inquests at $8.50.. “ Total dollars..'.......................... .$2,762.50
County of Kings, . 1
r SS • «
City of Brooklyn, . >
“ Edward B. Coombs and George H. Nason, being duly sworn, ■ •depose and say that the items charged in the within account, amounting to $2,762.50 are correct; that the services specified and articles ■enumerated therein have in fact been performed and furnished by •due authority; also that the prices charged are reasonable and just, .and that the said account has not been, either in whole or in part, jpaid, satisfied or assigned, and that the same is justly due to deponents.
“ EDWARD B. COOMBS,
“ GEO. H. NASON,
“ Coroners.
“ Jacob Mass,
Commissioner of Deeds.”
On this appeal the appellant renews his attack on the indictment. The argument of the learned counsel for the appellant is substantially this: The claims of the coroners' against the county for their respective services were several, not joint; the account or' claim set forth in the indictment, though in form a single claim, in reality constitutes two separate claims, one of the appellant for the inquests held by him, and the other of his co-defendant for the inquests held by him, and, therefore, if the - bill was false in the respects charged in the indictment, two separate crimes were committed, one in presenting the false claim of the appellant, and another one in the' presentation' of the false claim of his co-defendant, and, hence, there was a misjoinder of offenses. The learned counsel further contends that if the bill is to be deemed a single joint claim
As to the first proposition, we are of opinion that the presentation of -this bill, account or claim constituted but a single offense. It may very well be that, in law, the defendants had no joint claim against the city for their services, and that each was entitled to payment for the service he had personally rendered. It may also be 'that no joint suit by the two defendants against the city could be maintained. But the question is not how the claims of the coroners should have been presented, but how as matter of fact thé claims were presented. The best test of the soundness of the appellant’s contention is to take the case of Mass, the clerk who presented the bill of the defendants to the auditor. The evidence tends to show that Mass was not only cognizant of the fraudulent character of the bill presented by him, but also took the major part in the preparation of the claim. He might on the evidence in the record before us have been indicted as a participator in the crime. We do' not see on what theory Mass could have been held guilty of two independent crimes in presenting this claim. E-ightly or wrongly, he had presented but a single claim, and he could not.be convicted of •two offenses because instead of presenting one claim he should from a legal point of view have presented two.
We are thus brought to the second objection .of 'the appellant, that if the indictment is for a single offense it does not sufficiently aver the falsity of the items alleged to be fraudulent,, because it may be that while the appellant did not hold the forty-nine inquests, compensation for which'was claimed, the other defendant may have done so. The indictment charges that the claims for these- several inquests^ forty-nine of the appellant and seventy-eight of his co-defendant, were false and fraudulent. ' It then • specifically negatives the item of the claim as set. forth in the bill. We think this was sufficient. It 'is true that if it appeared that Mason had held -the alleged fictitious inquests charged 'as having been held by
The burden was on the People to affirmatively prove the false and fraudulent character of the bill. But “it is generally impossible to-prove an absolute negative, and it is sufficient, therefore, for the prosecution to approximate, so far as is in its power, to such negative, leaving it to the defendant, if he can, to break this down by proving the affirmative fact.” (Whart. Or. Law, § 1165.) In Kings: county the deaths number about 20,000 each year, and, of course, it was impossible to go through this list of deaths and prove that the appellant did not hold an inquest on the bodies of 162 of the persona so dying, or that both he and his co-defendant did not hold inquests oo 325 deceased persons. It was sufficient to show that the claim and account of the appellant was false, so far as it was practicable so to do. The evidence adduced by the prosecution to establish the guilt of the appellant was of the following character: It was proved that the signature of the appellant to the bill was his genuine signature. But the proof showed that when the appellant signed the bill the detailed statements of the inquests held were not annexed, but were attached subsequently by Mass, the clerk. Neither of these statements is in the handwriting of the appellant, nor does his handwriting appear thereon. It was an essential part of the People’s case to show the connection between these statements and the condensed bill, for the manner in which was proved the fraudulent character of the claim was by evidence that the specific inquests set forth in the statements were not held. It was, therefore, necessary to show that these tabulated statements were affixed to the bill by the authority of the appellant. Naturally enough, the prosecution was unable to prove this by direct evidence, Mass being beyond the jurisdiction of the court and implicated in the crime. But the prosecution was authorized to prove facts from which the jury might infer that the appellant intended Mass to attach the lists arid present
“ Coroner’s Certificate of Death.
: “ This is to Certify, That I, Edward B. Coombs, Coroner in and: for the County of Kings, have this, the 1st day of July, 1897, viewed the body of Francisco Gerazzo, who died at 209 Prospect Street, in the 5 Ward of the City of Brooklyn ; that I have held an inquest upon the said body, and that the Verdict of the Jurors is . that he came to his death by Marasmus on the 1st day of July 1897. Time till death.-days,-hours.
“ 1., Full name Francisco Gerazzo.
“ 2.. Age-years, 1Ó months,-- days.
. “ 3. Sex — Male. 4. White. 5. Single.
“ 6: Birthplace, H. S. 7. Occupation.
“ 8. If of foreign birth how long in the H. S., —— years.
“ 9. How long resident in the City, —— years.
“ 10. Father’s birthplace, Italy. 11. ’'Mother’s-birthplace, Italy.
“12. Place of residence, 2Ó9’Prospect Sty Brooklyn, Ward 5.
' “13. Humber of families.in house.-——. ’T4-. ‘On what fi'oor.
“15: Place of inquest, 209 Prospect-St.-- ■ - ■
.“EDWARD COOMBS,
' “’0'oroner. [t. s.]”
Such certificates Were filed in the'case’of every oiie of the inquests claimed to be fictitious. The detailed statements' of .inquests accom- ■ panying the bills correspond with the certificates previously filed by; the appellant, under his own signature, with the' bóard'of health. ’ In factj it was. necessary that they ‘should correspond because the auditor verified the coroner’s bills by examination of the certificates in the office of the board of health. There were'also placed in evi
At this point we. shall consider the objection taken by the appel-
We think that the.evidence already detailed clearly established the fact that the appellant contemplated that Mass should present the claim or account' of the appellant for services as coroner for audit, and that lie intended that Mass should annex thereto the detailed statements of the inquests held. The signing of these; inquisitions by the appellant in August, though after the presentation of the bill, warrants the conclusion that he must have been cognizant of the fact that the claim for the inquests represented by' the inquisitions had been made. The appellant could not' have signed them inadvertently or in ignorance of their contents, nor could he; have signed them in blank, for, as already detailed, one of' his signatures was placed immediately at the end of the written testimony. In fact, the evidence of the witness Deegan, when called for the appellant, substantially shows that these inquisitions had all been filled up when the appellant affixed his name thereto. When the evidence, closed, there were practically only two questions in dispute, One of law, whether the appellant was justified in charging' for an inquest where no jury had been called, and the second one of fact, whether even if wrong in his view of the law the appellant made the claim honestly and in good faith.
While,.as already stated, the evidence as to many of the fictitious inquests tended to show that neither coroner nor jury had viewed . the body of the deceased, or had been present at the place where the body was, still, as to others, it appeared that the coroner or his clerk had attended and made some inquiry of members "of the family, or other persons present. The question of the. appellant’s guilt was submitted to the jury on all these inquests of both characters where the coroner attended and where he did not. . The learned trial court charged on the question of his right to a fee as for an inquest when no jury Was impaneled, as follows:
*295 “ An inquest, gentlemen, by a coroner, means, always has meant, a positive judicial investigation into the cause of death. It does not mean sending a clerk to ask the parents; it does not mean the coroner himself going to the house, asking a question, learning that the child died of cholera infantum, leaving the house after receiving that information and no more, and placing it in a certificate.—that is not an inquest; the law never intended that as the judicial investigation which for a long time has been known as a coroner’s inquest. If the coroner, when he hears that a person has died suddenly, or that he has died through some criminal agency, goes to the house and-asks a parent, ‘What did your child die of?’ and he. is told, ‘ Of cholera infantum,’ and goes away, the law does not recognize that as an inquest. Whether with or without a jury, an inquest means a judicial investigation into the cause of death.”
At the close of the charge counsel for the appellant requested the court to further charge that the defendant was entitled to charge for each and every case in which he investigated the cause of death during the month of July, 1897, whether such investigation was made with or without a jury. In response tti this request the dourt instructed the jury:
“How, gentlemen, that question comes up expressly, and I will tell you what the law is on that.. If the defendant went to a house and simply asked what a child died of and found out, and went back and made out- his certificate, that is not an inquest in law, and he is not entitled to compensation for it. If the defendant went to a house where a child was dead, and did make a judicial inquiry into the cause of death and he believed he had a right to do it alone, even though in law he had not a right to do so, then, so far as your investigation goes, you would be required to consider that as if he had a legal right to do it, but as to holding an inquest in the legal • sense of the term without a jury, I charge you he cannot.”
To both the charge and. the refusal to charge as requested, the appellant excepted. We think the instructions of the court to the jury on this question were at least as favorable to the defendant as he was entitled to. The coroner’s inquest lias from- the earliest period in the history of our law been held with a jury. ■ While in its broadest sense an inquest may include any judicial inquiry, its use is generally confined to an inquiry by jury. (2 Burr. L. Diet. 81;
; There are two further objections to the regularity of the trial, which require to be noticed. It is contended that there was a fatal •variance between the indictment and the proof, in that the former charged that the claim was presented to John ft. Sutton, the auditor of the city, while-the proof tended to show that the claim was submitted for action to Albert A. Leech, the second deputy auditor. '■As a matter of fact it was presented directly to neither of them, but to Frederick W. Linker, an inspector in the auditor’s office. He 'examined the bill and statement, and compared it with the records in the office of the board of health. Having thus verified the bill, he jn-esented it to the second deputy, Leech, who audited it, the auditor being absent from the city at the time. The offense of the
The claim .which is the subject of this indictment was paid by a-city warrant. It was received by Mass and by him deposited in the-Manufacturers’ Trust Company, one-half to the credit of the appellant and the other half to the credit of his co-defendant. It was-sought to prove that the appellant had received the proceeds of his half by checking them out from his bank deposit-. The original checks had been returned to the appellant, so they could not be produced. But the fact was sought to be established by the books of the bank, and for this purpose a transcript of the appellant’s account: in the bank ledger Was admitted in evidence. We concede that the books of the bank aré not themselves competent evidence against its-dealers, but they could be made so by other proof. If the book of original entry of the appellant’s checks had been produced, and the clerk or teller who paid the checks and made the entries of their payment had testified to the truth of such entries, the book would have been competent evidence. This proof was not given, and the ledger account should not have been admitted had proper objection been made. We-doubt very much whether the objection taken by the appellant was sufficient. But assuming that the admission of. this account was error, we cannot see that it in any way prejudiced
We are not sure that we understand the point of the counsel' for appellant in his objection that the testimony of the expert that the signatures of jurors to the pretended inquisitions was incompetent. The People did not attempt to prove in whose handwriting these signatures were. All that they endeavored to show was that the signatur as, purporting on their faces to be those of different persons, we're in fact the same handwriting. We cannot see how familiarity with the handwriting of any of the supposed jurors was necessary ■ to enable the expert to testify on that question. The face of the signatures-themselves was all that was requisite. The jury might have made the comparison and drawn their own deduction therefrom. The expert Was at liberty to testify to his deduction from the same data.
We find no error that requires us to reverse this judgment. The judgment appealed from should, therefore, be affirmed,
All concurred.
Judgment affirmed.