73 N.Y.S. 520 | N.Y. App. Div. | 1901
The appellants were, with Henry Bogert and Henry J. Alexander indicted for a conspiracy to injure trade and to depress the value in the market of the shares of stock of the Brooklyn Eapid Transit Company. The indictment contains nine counts. It is a voluminous document, covering some one hundred and twenty-five pages of the record before us, and seems to have been prepared to present in every legal phase the acts of the defendants constituting the offense or offenses with which they are charged. Henry J. Alexander was not tried; the other defendants were duly brought to trial in the Supreme Court. An acquittal was directed as to the defendant Bogert. The three other defendants, the present appellants, were found guilty upon a general verdict of the jury. They moved in arrest of judgment and for a new trial, which motions were denied by the justice presiding. ' Thereafter the defendant Goslin was sentenced to six months imprisonment and to pay a fine of $500; the appellants Packer and Davis were each sentenced to three months imprisonment and. to pay a fine of $250. From the judgment of conviction and from an order denying a motion, for a new trial this appeal is taken.
The learned counsel for the appellants has urged with much ingenuity and earnestness three principal grounds for the reversal of the conviction of these appellants. The first relates to the alleged insufficiency of the indictment; the second to the asserted insufficiency of the evidence to sustain the indictment, and the third to certain remarks of the court made to the jury, and which, it is claimed, tended to coerce a verdict adverse to the defendants.
It is provided by section 279 of the Code of Criminal Procedure that a crime may be charged in. separate counts to have been committed in a different riianner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. The objection taken by the appellants to the indictment in this Case is that no offense is properly charged; that its first six counts are intended to charge a conspiracy under subdivision 1 of section 168 of the Penal Code, to commit the offense mentioned in subdivision 3 of section 435 of that Code; that the seventh, eighth and ninth counts of the indictment fail to state facts constituting a violation of any law ; that by those counts it is intended to charge a violation of one of the clauses of subdivision 6 of section 168 of the Penal Code, which provides that if two or more persons conspire to commit any act injurious to the public health, to public morals or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws, each of them is guilty of a misdemeanor.
The position taken by the learned counsel for the appellants, therefore, with reference- to the indictment is substantially the following: That it is sought by the indictment to charge the defendants with two separate misdemeanors; that the first six counts of the indictment relate only to a conspiracy to commit the misdemeanor mentioned in the 3d subdivision of section 435 of the Penal Code, and that the other three counts relate to the misdemeanor mentioned in the 6th subdivision of section 168 of that Code, and
As we read this indictment we cannot assent to the distribution and marshalling of its counts in the groups suggested by the appellants. To our apprehension, the first, second, third, fourth, seventh, eighth and ninth counts charge the misdemeanor mentioned in subdivision 6 of section 168 of the Penal Code, and the fifth and sixth counts relate to a conspiracy to violate subdivision 3 of section 435 of that Code. Whatever may be said of the first, second, third and fourth counts, the seventh count charges all the elements of knowledge and intent necessary to the constitution of the crime, and it is well settled that where in an indictment the same offense is charged in various counts, some of which are defective, but any one of which is legally sufficient, a conviction under a general verdict of guilty may be had upon the count that is good. (People v. Davis, 56 N. Y. 95 ; People v. Willett, 102 id. 251 ; People v. Dimick, 107 id. 30.)
Concerning the fifth and sixth counts, the objection as to them that they do not set forth facts showing that the overt acts of the defendants therein mentioned were injurious to trade, is not well taken. . The words of the statute defining the misdemeanor intended to be charged in those counts are not set forth therein, but it is provided by section 283 of the Code of Criminal Procedure that words used in a statute to define a crime need not be strictly pursued in the indictment; but other words, conveying the same meaning, may be used. Equivalent words are contained in the counts now under consideration. The words of section 435 of the Penal Code are that “ a person who with intent to affect the market price of the public funds * # * or of the stocks, bonds or other evidences of debt of a corporation or association * * * knowingly cir
W e are, therefore, of the opinion that so far as the counts of the indictment are concerned, each of the misdemeanors is sufficiently ■charged, and that the objections to the indictment were properly ■disposed of in the court below.
Second. A perusal of the record makes it difficult to perceive how -either a moral or legal doubt could arise concerning the sufficiency ■of the evidence to sustain both charges made in the indictment. The conspiracy and the acts done in pursuance thereof are made to •appear as plainly as any crime can be established by what is ■ called ■circumstantial evidence. Without stating that evidence in detail, its prominent features are that the defendants Gosliu and Packer in concert began, sometime in the month of October, 1899, an attack upon the Brooklyn Rapid Transit stock! On the twentieth of that month an advertisement appeared in newspapers in the city of üSTew York, signed “ Truthseeker, P. O. Box 1488,” in which, after alluding to the stock of another corporation, the advertiser says: I also advised the sale of B. R. T. from 125 to 95, and made thousands of dollars for thousands of clients. Between fits and starts this stock will yet see 50. I act only on the most absolutely correct information ; not on every slightest breeze that turns the heads of other operators. Do you care for such advice ? ” On the
It is shown in the proofs that the Brooklyn Rapid Transit stock was included in what was referred to as the “ Flour Trusts.” It is also shown that prior to the attacks made upon this stock by “ Truth-seeker ” it was selling at 125. It fell rapidly thereafter. It is also shown in the evidence that “ Truthseeker ” was the defendant Goslin. The defendant Davis seems to have entered into the confederacy in December, 1899, and thereafter the three parties became very energetic in their efforts to depress the stock. A great many telegrams were sent to various persons in different parts of the country urging them to sell the stock at the oj>ening of the market on the next day for thirty points profit. Those telegrams were signed “ Truthseeker,” and were sent out on the twentieth of October. On the twenty-first of October the “ Flour Trusts ” advertisement appeared in various newspapers in the city of New York, includ
The evidence clearly connects Goslin, Packer and Davis with all the acts, some of which only have been referred to in general outline,. and establishes incontrovertibly that the advertisements signed " Trnthseeker ” were prepared and published in pursuance of a conspiracy; that the telegrams sent throughout the country were also in pursuance of that conspiracy; that the Harmony letters were in furtherance of it, as was also the report concerning a receivership of the Brooklyn Rapid Transit Company.
The conviction as to circulating false rumors, with the intention of depressing the market value of the stock, is plainly to be supported upon the false statements that the company was to go into the hands of a receiver and that a decision would be handed down
There was evidence offered also by the prosecution to prove that the Brooklyn Rapid Transit Company was a solvent corporation. The defense, upon the examination or cross-examination of witnesses, offered to show that some of the independent corporations. which were controlled or operated by the Brooklyn Rapid Transit Company were not in sound financial condition, and that the properties acquired by that company were of such a character that justification could be made of the statements regarding its embarrassed and unsound condition. Certain questions were not allowed to be put by the justice presiding at the trial, principally upon the ground that they were immaterial. The exceptions taken to the rulings of the court in this regard need not be considered, but it may be said in passing that most of these questions, in the form and manner in which they were put, were objectionable. Some of them were proper, but testimony was allowed as to the business of certain of the corporations resulting in a deficit, such testimony being allowed within reasonable limitations imposed by the court. But, independently of any consideration relating to an inquiry as to the . condition of the several companies operated by the Brooklyn Rapid Transit Company, the falsity of the statements of the defendants concerning a receivership and proof that the defendants circulated those false statements is sufficient to sustain a verdict under the fifth and sixth counts of the indictment, and, therefore, the exclusion of the testimony above referred to was not reversible error. As said before, the evidence concerning a conspiracy to injure trade is overwhelming, and it cannot seriously be contended that a conspiracy, under such circumstances as are disclosed in these proofs, to depress the value of the capital stock of great corporations, dealt in on the Stock Exchange, is not one to injure trade or commerce.
Third. After the evidence, both for the prosecution and the defense, had been put in, and counsel had addressed the jury, the court, preliminarily to ordering a recess, spoke to the jury as follows : “ Gentlemen, we are about to take an adjournment for lunch. You will not be permitted to separate now. One of your number has filed an affidavit that he has been offered money to disagree in
We do not think this episode presents matter constituting legal error. There was no effort on the part of the court to coerce the jury to render a verdict. It seems to us that the justice presiding
The judgment and order should be affirmed.
Ingraham, Hatch and Lahghlin, JJ., concurred.
Judgment and order affirmed.