130 N.Y.S. 851 | New York Court of General Session of the Peace | 1911
The defendants were charged by the grand jury on December-16, 1910, in an indictment containing two counts, with violating sections 372 and 1826 of the Penal Law. The charge in substance and effect was that the defendant Volkmann, being a public officer, to wit, a member of the board off
The moving defendant applies for an order granting to him :an .inspection of the minutes of the grand jury containing the testimony before them on which the indictment was found. .His application is stated to be in aid of a contemplated motion by him to dismiss the indictment as founded upon insufficient evidence.
Before such a motion can properly be granted, the motion papers must present reasons for believing that the minutes asked .for would disclose grounds for granting a motion to dismiss the indictment. (Matter of Montgomery, 126 App. Div. 82, 22 N. Y. Crim. 485.)
The moving defendant, recognizing this to be the rule, assigns as a reason for such belief that the complaint and information in the Magistrate’s Court lacked allegations of fact tending to show an intention on the part of the moving defendant to aid in the commission of the alleged crime; and it is urged that these allegations are wanting because the facts did not permit them to be truthfully made, and that, if that is so, the evidence before the grand jury must have been insufficient to warrant, as against the moving defendant, the finding of the indictment. To put the contention more briefly, it is that the indictment rests substantially on the testimony of the complaining witness and that the complaining witness presumably testified to nothing before the grand jury not alleged in his
It may be conceded that to have warranted the finding of the indictment as against the moving defendant there must have been legal evidence before the grand jury going to the point, or from which the inference could have been properly drawn, that the moving defendant did that which the testimony may have disclosed him to have done, with the intention on his part that what he did should aid in the commission of the alleged crime. (People v. Zucker, 20 App. Div. 365.)
The complaint and information in the Magistrate’s Court alleges a concert of action between the moving defendant and his codefendant. It alleges in substance that the complaining witness was a news dealer, having a news stand legalized by a permit upon a public street; that the continuance of this permit depended upon the official action of the codefendant, Yolkmann, in his capacity as alderman; that Yolkmann insisted upon the payment of money to him as a condition for granting a renewal of the permit; that the complaining witness objected to making such a payment, but finally consented; that it was arranged that Yolkmann should send the permit to the complaining witness by soneone authorized to deliver it and receive payment for it; that the moving defendant came, immediately after the making of such arrangement, twice on the same day, to the complaining witness’s news stand and once to his house; that at the latter place he handed over the permit and concurrently received the amount demanded, after declining to receive a lesser sum and giving as a reason for such declination a communication to him by his codefendant; that, thereupon, the moving defendant was arrested with the complainant’s money upon his person.
If, therefore, the allegations in the complaint and information are true, the moving defendant did acts having a tendency to assist in the perpetration of the alleged crime. Nor would it be improper to presume, in the absence of evidence to the
If, however, this inference of criminal intent on the part of the moving defendant cannot be properly drawn from the allegations of the complaint and information, and if, therefore, such allegations state insufficient facts to warrant the finding of the indictment against the moving defendant, it does not follow that the complaining witness may not, as a witness before the grand jury, have testified to facts warranting the finding of one.
Where a witness has been fully interrogated in a Magistrate’s Court and purports, responsive to appropriate questions, testate all he knows about a given matter, there may be ground for argument that, when he testifies on a subsequent occasion upon the same matter, his subsequent testimony will be to like effect and no greater in extent; so that, where he has awoved ignorance on a given point responsive to a specific interrogation, it may be assumed that upon the second occasion, if so interrogated, his answers would be to like effect. Yet the argument in such case is not strong, as experience shows that many important details are recalled by witnesses on a second examination which were wholly forgotten upon a first, and that the substance of that testified to depends, not merely upon the general line of interrogation, but upon the phrasing of indi
It follows that the moving defendant has not, by his argument based upon the alleged insufficiency of the complaint and information, sufficiently overcome, to warrant the granting of this motion, the presumption that the indictment is based upon legal and sufficient evidence (People v. Glen, 173 N. Y. 395; 17 N. Y. Crim. 225; People v. Martin, 87 App. Div. 487) ; and the motion is, therefore, denied.
Motion denied.