133 N.Y.S. 306 | N.Y. Sup. Ct. | 1912
The grand jury of Hew York county has indicted the defendant, Charles H. Hyde, for a felony alleged to have been committed by him while city chamberlain. The defendant now asks- that the trial of the indictment against him he removed from Hew York county to a term of the Supreme Court held in and. for some other county in the State of Hew York where a fair and impartial trial can he had, upon the ground that such fair and impartial trial cannot he had by the defendant in the county of Hew York where, the indictment and the action are now pending.
The third and fourth counts charge the above allegations as a violation of section 1826 of the Penal Law, as asking and receiving and agreeing to receive a gratuity for performing an official act.
“ The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of. criminal jurisprudence. For the protection of persons accused of crime the law, as a safeguard against local prejudice, has benignly provided this remedy ” of which the defendant now seeks to avail himself. People v. McLaughlin, 150 N. Y. 365, 375. “ It is equally well settled that a motion of this kind is addressed to the discretion of the justice at Special Term.” People v. Georger, 109 App. Div. 111. The principles upon which he is called to exercise that discretion are equally well settled. In the case of People v. Sammis, S Hun, 560, the court stated: “ It is the right, both of the people and of the person accused of crime, to have the trial take place in the county where the crime is alleged to have been committed. When an accused person applies to change the place of trial, he must, under all the cases, make a clear case, that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.” His
In this case the accused was the chamberlain of the city of Hew York; the charges against him resulting in the indictment naturally received a wide circulation in the newspapers and occasioned considerable public comment and interest. In addition, the newspapers have given wide publicity to rumors and charges affecting his personal and official probity. The accused claims that these articles have produced such prejudice in the minds of the public that a jury cannot be piclcedfree from the perhaps unconscious influence of the reiteration of these charges and the constant portrayal of the accused in prose, verse and picture in a ridiculous or guilty light." While the accused has grave right to complain of his treatment by a portion of the press, I do not think that these articles have really roused in the community any feeling which will prevent the accused from obtaining a fair trial before an impartial jury. .
In reaching this conclusion I have applied no strict and technical rules to the consideration of the evidence presented to me. I have recognized the justice of the rule that “ the
The circumstances and conditions disclosed by the evidence submitted upon this motion are briefly stated as follows: The accused was a close personal friend of the mayor of the city and, on January 1, 1910, was appointed by him city chamberlain. During the winter of 1910, a State senator was tried by the legislature and found guilty of charges of legislative corruption. The entire State became convinced that such corruption existed, and the Legislature appointed a joint committee to inquire into the subject of legislative corruption. That committee began its sessions in September, 1910. In the course of its investigations, an assistant district attorney of Kings county testified that one Frank J. Gardner had informed him that a number of persons interested in racing had raised a fund of $500,000 for the purpose of defeating a bill popularly known as the anti-racing bill; that this fund was entrusted to the defendant and that he and the defendant had gone to Albany and had tried to bribe as many - members of the Legislature as they could reach. There is no doubt but that the newspapers gave, wide publicity to these statements of the assistant district attorney, arid that they seized with avidity upon a charge of this kind against a public official in order to create a public sensation, and that those papers opposed to the present mayor attempted to strike at the mayor by emphasizing the charges against his appointee. There is also no doubt but that credence was given to the truth of this charge by reason of the refusal of Gardner to testify. The
It seems to me that it would be idle to examine the newspaper articles' at greater length. It may be said that they are numerous and given prominence by head-lines and cartoons ; that they are one sided and that some are apparently inspired by a desire to hurt the mayor who appointed this defendant to office. In addition to these articles it appears from affidavits that there is a fairly wide-spread belief that the defendant is guilty. It would serve no useful purpose to analyze the affidavits here. So far as they set forth the belief of the deponents that no fair trial can be had in this county, they represent only the personal opinion of the deponents ; so far -as they set forth the facts that the case has been discussed in public places, and that the discussion has been generally unfavorable to the defendant, they are in accordance with my personal experience. I deem it necessary to refer in detail only to the affidavit of Israel Tilden, Jr.,, who was employed to investigate the' attitude of the public toward the defendant. His affidavit contains harsh expressions alleged .to have been used toward the defendant by 137 persons interviewed by him.' The district attorney presents the affidavits of such of these persons whom he could reach denying the statements and denying any knowledge of the case. I have carefully examined these affidavits and I find that there are sixty-nine persons clearly identified who unequivocally deny the interview; there are, in addition, twenty-four persons who deny the interview, but where there might be some question .as to the correct identification of the affiants with the persons interviewed; ten persons present affidavits, denying the use of the expressions, but admitting the interview ; and two persons present affidavits which in my opinion do not contradict Tilden. I am confident that the defendant acted in good faith in submitting this affidavit, and I express no opinion as to Tilden’s good faith in making it. It appears that these alleged statements were not volunteered, but were
The defendant is entitled in law to the. benefit of the presumption of innocence until he has heen proven guilty. Unfortunately, however, hitman minds are not so constituted that, after an indictment has heen found, the public will actually and outside of the court room presume the accused to be innocent. The fair-minded who have no personal acquaintance with the accused or with the facts charged will try to form no opinion; the inconsiderate, knowing only the charge and not the defense, will rush to the conclusion that the accused is guilty of the charge. The careful man certainly refrains from committing the injustice of expressing an opinion; the careless man loudly expresses his opinion of the guilt of the accused. In a community of the size of Hew York only a small proportion of the inhabitants have any personal knowledge of the charge or of the probable guilt of the accused; the opinion of the majority, is formed by the newspaper accounts of the charge. In every case, therefore, where the newspapers have given a wide publicity to the charge, there will be many expressions of belief in the guilt of the accused and few expressions of belief in his innocence. This is no proof, however, that the sober, careful, thoughtful citizen accepts the reports of the press and is influenced °by them. Undoubtedly a person accused of wrong must smart under the charges printed by the newspapers and miist smart under the hasty expressions of opinion hy the inconsiderate. Though innocent, he and his friends may well come to believe that, since most of the expressions of opinion are unfavorable,' the community is biased against him; but no change in the place of trial should be ordered merely because a considerable number of' citizens have, hy reason of the license of the press, formed an opinion against the accused. At common law the formation and expression of an opinion by a juror touching the
The existence' of such prejudice usually implies a state of public excitement and necessarily implies a state of general and deep seated interest in obtaining the conviction of .the accused. Ordinarily in such cases the accused is regarded as a representative of a general class against which the community feels an ineradicable resentment. Such excitement, interest or resentment, is extremely • difficult to rouse in this city, and I am convinced that it has not been roused in this. case. The general public in this city .are more inclined to regard proven charges with undue levity than to give undue weight to charges of which the accused is presumptively innocent. So far as the industriously circulated charges of the alleged participation of the accused in legislative bribery are concerned, it is quite evident that they have not prevented a jury from giving Gardner a fair trial and acquitting him partly upon the testimony of this defendant. So far as the connection of the accused with the administration of the present mayor is concerned, it seems to me quite evident that the absolutely unqualified confidence of the entire city in the personal honesty of the chief executive has reacted favorably upon the defendant. So far as the charge that the accused resigned while under indictment is concerned, 1 do not believe that any person fit to be a special juror regards this resignation as any admission of guilt, or in fact doubts but that no man with a proper sense of civic propriety would fail to see the necessity of resigning his office until the dismissal of the charges against him.
The only point still to be considered is whether the nature of the charges themselves and the previous conviction of Reichmann and Cummins are conditions which have produced such prejudice as impairs the defendant’s right to a trial which will be fair and impartial beyond suspicion. The defendant’s counsel concedes that the mere fact that the defendant is accused of using money belonging to the city does not necessarily require a change of venue. A jury can certainly be obtained in this city without including any juror personally interested in the failure of either the Horthern '
The defendant further claims that the district attorney has, through a system of. card records, a knowledge of the records of the jurors which gives him- an advantage over the accused in using his peremptory challenges not contemplated by the law. The district attorney, however; offers to share these records with the attorney for the defendant, so that on this point there will be absolute equality.
Upon all the circumstances disclosed, I have, therefore, reached the conclusion that, while the newspapers have" in many instances improperly sought to prejudge this case, and there is a considerable body of thoughtless persons who have accepted'the statement of the charges as-proof of their truth, they have created no general atmosphere of prejudice which might subtly and unconsciously influence the minds of the
Motion denied.