125 N.Y.S. 164 | N.Y. App. Div. | 1910
Section 372 of the Penal Law (re-enacting Penal Code, § 72) provides, in part, as follows: “A judicial officer, * * * who asks, receives, or agrees to receive a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision or other official proceeding, shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years, or by fine of not more than five -thousand dollars, or both. A conviction also forfeits any office held by the offender, and forever disqualifies him from holding any public office under the State.”
Proceeding under this section of the statute the grand jury of Kings county, on October 29,1909, presented an indictment against the defendant herein in form as follows:
“The Grand Jury of the county of Kings, by this indictment, accuse Henry J. Furlong of the crime of asking for and agreeing to receive a bribe and money, and a promise and agreement therefor, committed as follows:
“On the 16th day of September, 1908, at the borough of Brooklyn, of the. City of Hew York, in the County of Kings, the said Henry J. Furlong was a judicial officer, viz.: A City Magistrate of the City of Hew York, and of the Second Division thereof, that is, said borough and county, and was then and there, and at all times herein mentioned, executing the functions of such judicial officer, to wit: the functions of a city magistrate of and in the City Magistrates’ Court of the City of Hew York and said Second Division thereof; and the said Henry J. Furlong being such judicial officer, and exercising the functions aforesaid, did then and there wilfully, unlawfully and feloniously "ask for and agree to receive a bribe and money, and a promise and agreement therefor, upon an agreement and understanding, to wit: an agreement and understanding had and entered into between him, said Henry J.- Furlong, and one Jacob J. Gotthelf that he, said Henry J. Furlong, should purchase a certain plot, piece or parcel of land, with the buildings thereon erected, commonly known and designated as Humber 925 Glenmore Avenue, there situate, for the sum of one hundred and fifty dollars,
The defendant, on being brought to trial on the indictment, was convicted and was sentenced to imprisonment under an indeterminate sentence of not less than one year nor more than two years and one month.
From the judgment of conviction this appeal has been taken. The grounds urged upon this court for a reversal of the judgment are somewhat numerous, and the more important of them will be
If it be true that it is essential to the nature of the crime of bribery that it shall relate to the doing of some specific act in a specific legal proceeding, either then pending or in contemplation, the result will be as follows: A judge is guilty of bribery if he asks for, agrees to receive, or does receive money or property in a specific case of Doe v. Roe, to influence his official action in that case, but is not guilty of bribery if he enters into an agreement with Doe to decide in the latter’s favor every case in which thereafter he may be interested, although then none are pending before him. If this result is within the contemplation of the statute, then it is anomalous, to say the least. It would follow that a judge is guilty of being bribed if he agrees to act corruptly in one specific ease; but has not been bribed if he agrees to act corruptly in every case which may thereafter arise in which the party offering or agreeing to pay
In Commonwealth v. Lapham (156 Mass. 480) a similar question arose under an indictment for attempted- bribery of a milk
Thus, it appears that the weight of authority outside this State is in favor of the sufficiency of the indictment at bar. Independently of authority, and as a matter of reason, the same result should follow. The statute is framed in comprehensive terms to meet a serious offense which is so manifold in its varying forms that language of particularity could cover scarcely all the aspects in which it can present itself in the every-day affairs of men. From the dawn of civilized government, official corruption has been one of the most persistent dangers to which a body politic has been exposed. It is a vice of all governments, because it is a vice to the temptations of which most men are exposed. The plain object of the statute is to stamp it out and prevent its reappearance. !N"o construction of this statute which would fail to cover a case of an agreement for a general course of corrupt conduct, even though it should not be followed by a single corrupt act, would be even tolerable. The corruption aimed at is not simply the doing of things which may be improper in themselves, but even the doing of proper things as the result of an improper agreement. The statute would be violated as much by an agreement for compensation from private parties to take special pains' to decide, even properly, a matter coming before the officer as it would by an agreement to decide it improperly. In other words, the statute reaches out as much against the
We think the indictment at bar sets forth sufficiently the commission of the crime of bribery under the statute when fairly interpreted. The crime so charged was the corrupt agreement between Gotthelf and the defendant relative to the future conduct of the defendant in relation to all undertakings or bonds to be tendered by Gotthelf through the dummy Arnstein for the release of prisoners held to bail in the defendant’s court. This agreement being proved, to sustain a conviction it would not have been necessary to prove any distinct criminal act following in pursuance of it, for a crime was committed by the making of the agreement itself. (People v. Markham,, supra ; People v. Gibson, supra.)
On this trial, however, the prosecution gave proofs tending to show that the defendant did actually carry this agreement iiifco completion in the case of one Uttal, who had been held for bail under a charge of abandoning his wife, and that the defendant had received his agreed portion of a fee of fifty dollars which Uttal paid Gotthelf" for procuring the giving of an undertaking by Arnstein and its approval by the defendant. It is urged by the defendant that the admission of this evidence was grave error, as it tended to convict him of the crime of bribery in a specific instance not charged in the indictment. The general rule is that proof may be given against a defendant of the commission of an independent crime provided it be relevant to the proof of the crime charged in the indictment. (People v. Rogers, 192 N. Y. 331, 351.) The test of relevancy is whether the proof offered tends legitimately to establish the issuable fact. The proof given as to the Uttal transaction tended to support the charge set forth in the indictment, for, if believed by the jury, it showed acts of the defendant entirely harmonious with the charge of the indictment, and not easily intelligible otherwise. According to this proof Uttal paid Gotthelf fifty dollars to procure a bond for his discharge. Gotthelf got Arnstein to come to his office and sign a bond, giving as security the real property described in the indictment and falsely describing in an affidavit form thereto attached the value of the property. Arnstein
The judgment of conviction is affirmed.
Woodward, Jenksand Thomas, J J., concurred; Rich, J., dissented on the ground of error in the admission of evidence respecting the TJttal case.
Judgment of conviction affirmed.
See Clay's Ala. Dig. 437, § 4.—[Rep.