139 N.Y.S. 137 | N.Y. App. Div. | 1912
Lead Opinion
The defendant appeals from, a judgment convicting him of grand larceny in the first degree.
The basis of the charge against the defendant, as redeveloped upon the trial, was the allegation that he conspired with one Clark, described as a curb broker, one Persch and one Sherwood, the cashier of a stock brokerage firm, to steal certain stock, the property of one Heinze. The scheme devised to obtain possession of the stock was bold and ingenious, and ' involved the intervention of the officers of a trust company. It was not charged that defendant actually and physically stole the stock. .He was claimed to be what, in former days, would have been termed “an accessory before the fact,” but was charged and indicted as a principal under the provisions of section 29 of the Penal Code (now Penal Law, § 2). He was indicted" alone, Clark, Sherwood, Persch and Field being separately indicted. Defendant’s indictment does not mention any one else as having been concerned in .the larceny, and does not explain that defendant is charged with the crime because he aided and abetted others in committing it. It simply charges him, substantially in the words of the statute, with having committed the crime. It is strongly urged that such an indictment is insufficient under the circumstances of the case, and that the indictment should have alleged who is said to have physically committed the crime. The Court of Appeals in People v. Bliven (112 N. Y. 79) seems to have entertained a contrary opinion, and it is a well-known fact in the legal history of this State that the same contentions now made by the defendant were vehemently, urged upon the Court of Appeals on the motion for a reargument of the appeal from the conviction for murder in People v. Patrick, and were necessarily overruled when the motion for reargument was denied. (People v. Patrick, 183 N. Y. 52.) We are of the opinion, therefore, that this objection to the indictment is not well founded.
We have examined and re-examined the record with great care, and with the aid of exhaustive and able briefs on the part both of the People and of the defendant. We do not consider it necessary to recite at length the evidence upon which the jury reached.their verdict. To prove the conspiracy
The record bristles with defendant’s exceptions, of which nearly 400 were taken during the course of the trial. Comparatively few of them are now relied upon, and of these some present no question requiring discussion here. Much stress is laid upon the fact that the court admitted evidence to be introduced concerning what is characterized as a different and distinct transáction. The conspiracy charged was that defendant and others had devised a plan to actually loan ITeinze a considerable amount of money upon collateral security of a value much larger than the sum loaned, and then to dispose of the collateral. To carry out this scheme it was necessary to find a well-known stock exchange house, or a bank or trust company to “clear this loan,” as it was called, or, in other words, to become the ostensible lender, as Heinze was unwilling to intrust his securities to an irresponsible lender. To obtain a firm or corporation to “clear this loan” which Would be of sufficient reputation to satisfy Heinzé, and at the same time to be sufficiently pliable to deliver the securities to the conspirators, was not the least difficult feature of the scheme. The evidence objected to was that of a broker named Schwed,. who testified that defendant solicited him to assist in finding a suitable intermediary. In our opinion the evidence was relevant as tending to show the nature of the conspiracy upon which the defendant had embarked, and the preparations which he made to carry it out. Evidence of preparation to commit a crime stands upon the same footing as evidence of previous attempts to commit it, and is always relevant. Thus in murder cases it has been held relevant to show that the accused redeemed a pawned revolver (People v. Scott,, 153 N. Y. 40), or practiced shooting at a mark (People v. McGuire, 135 N. Y. 639; People v. Youngs, 151 id. 210), or, where the crime was committed by stabbing, ground a knife (People v. Tice, 131 N. Y. 651). In the present case Schwed’s testimony merely tended to show that the defendant had endeavored to find a tool to use in committing the crime. It is contended that the court erred in admitting in evidence a statement made by one of the witnesses for the People (Clark) to his
The other exceptions to which we deem it proper to refer relate to those taken or endeavored to be taken to the refusals to charge as requested by the defendant,
It is very doubtful whether exceptions taken in this wholesale fashion raise any question of error. To submit so large a list of requests and then' interpose an omnibus exception amounts to little else than a trap “better adapted to confuse and trip a court, than to serve any purpose of justice. ” (People v. McCallam, 3 N. Y. Cr. Rep. 189, 198; affd., 103 N. Y. 587.) Counsel had been clearly and distinctly advised by the court that the reason for refusing to repeat- and recharge the several propositions embraced in the requests was “ that they are already covered in the charge. ” If some of the proper requests had been overlooked by the court, and thus not included in the charge, it was the duty of counsel to have called the attention of the court to the omitted propositions and ask specifically as to them that, the jury be instructed: (People v. Birnbaum, 114 App. Div. 480, 489.) Having failed to take this course, the defendant is not entitled as a matter of right to insist upon his exception, and we are not required, in consequence, to reverse the - judgment by reason of the exception unless we can clearly see- that the defendant has been preju
The other omissions to which our attention is called are those relating to the requests numbered 74 and 93, in which the court was requested to charge as to certain witnesses that: “If the jury believe that [the witness] wilfully testified falsely as to any material fact they are at liberty to disregard the entire testimony of [the witness] if they see fit.” This request is not covered by the main charge, but it is entirely certain that if counsel had been more explicit with the court and had directed its attention to the omission to charge as requested in this particular, the court would have instantly supplied the omission, probably stating the rule as it should be stated that the jury under such circumstances might, but need not, reject the whole testimony of the witness. We do not consider that the omission of this particular charge constitutes reversible error. The proposition embraced in the request is scarcely a rule of law, although its propriety has been affirmed in many cases. It is rather the statement of a rule by which the weight of evidence is to be tested — a rule derived from the experience of mankind both lay and legal. A jury, carefully selected for their intelligence and experience as this jury was, would undoubtedly apply this rule in considering how far a witness was to be believed, éven without a reference to the rule, by the court.
Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
The defendant was indicted on three counts. The first count charges that on or about the 2d day of August, 1909, he stole with force and arms from one Joyce 46 certificates for 100 shares each of the capital stock of the Davis-Daly Copper Company of the par value of fifteen dollars per share and of the value of seven dollars and twenty-five cents per share, and 156 certificates for 100 shares each of the capital stock of the Ohio Copper Company of the par value of ten dollars per share and of the value of five dollars per share; the second count charges that the stealing was as agent, bailee and trustee; and the third count is for receiving the' certificates of stock as stolen goods. None of the counts was formally withdrawn from the jury, but [the case was submitted on the first count and the charge of the court made no reference to the other two counts. In opening the case the assistant district attorney did not charge that the defendant actually stole the certificates of stock or that he directly participated in the stealing. He stated that the evidence in behalf of the People would show that the defendant conspired with one Clark, a curb broker, and one Persch, who officed with him, and one Sherwood, a cashier for the stock brokerage firm of Leonard J. Field & Co., Clark, Persch and Sherwood being the principal actors in the conspiracy. No evidence was offered tending to show that the defendant directly participated in obtaining the stock from the owner, and the court instructed the jury that the People did not claim that the defendant actually stole the stock, but, merely, that he was liable under the law as a principal on the theory that he aided and abetted others in the commission of the crime. The defendant was indicted alone. The indictment contains no reference to any one else as having participated in the commission of the crime, and it does not charge
The case is quite complicated. The salient facts, however, relating to the larceny of these certificates of stock are not in dispute; but the evidence relating to defendant’s connection with it is very conflicting. The defendant was thirty-eight years of age, and the president of the Eastern Brewing Company, and had been president of a brewery for some twelve years. He was bom in Paterson, H. J., but at the time in question resided in New York. He had home an unblemished reputation. His good character was testified to by nine witnesses of prominence and respectability in various walks of life, one of whom was called by the People on another question.
Persch was not a witness on the trial of this indictment. Clark testified that at the Marquette Club on the evening of the sixth of August Persch tendered to the defendant a check for his one-third of the $30,455.78, and the defendant refused to accept it, stating that he wanted his share in cash, and that Persch said, in substance, that he would pay him in cash; that the next morning the defendant and Persch entered their office, and the défendant exhibited a roll of money, which he testified positively, on the mere observation of it without having seen the denomination of any bill, contained at least $10,000, and said, “I have got mine.”
Clark’s stenographer, a girl of nineteen years of age,, testified that she was in the office at this time; that the defendant took his pocketbook out of his pocket, but showed no money, and said, “I have mine,” or, “ I have got mine,” and that the day before she had heard the defendant, Clark and Persch talk
The defendant testified in effect that he knew nothing derogatory to the character of either Persch or Clark, and had been introduced to Persch by the latter’s father some time before the transactions in question, and had associated with him more or less; that the latter part of June Persch said to him that he had an opportunity of obtaining an office with a broker named Clark, whom the defendant had met, who was about to dissolve a partnership, at a rental of $25 a month, which was more than he could afford to pay, and he asked the defendant if he would not take • desk room and pay one-half of the rent, and use the office afternoons after finishing his business at the brewery, and said that Clark was a curb broker, and that if the defendant could get them the curb business of a certain firm they would pay him one-third of the commissions, and he accepted the proposition and undertook to get the business, hut was unsuccessful; that he had no knowledge that Persch and Clark were attempting to get these stocks with a view to selling them, and that while he understood that they knew that Heinze was desirous of obtaining loans and were attempting to negotiate a loan and expected to share in the commissions, he had no reason to anticipate that there was anything
The court instructed the jury as matter of law that Sherwood and Clark were accomplices, and that their evidence could not be considered unless corroborated. Aside from their evidence, and the testimony ’of Clark’s stenographer, to which reference has been made, the only evidence connecting the defendant with the crime is testimony given by Birmingham and by Kaufmann with respect to admissions made by him and some testimony by Ulmann tending to show that defendant knew that a loan was to be made. One Schwed gave testimony tending to show that defendant prior to this transaction contemplated, With Persch, obtaining stock on a loan and selling it; but did not know that it was illegal to do so provided other stock were obtained when the loan was paid, and . abandoned that project and announced that he did not wish to do anything unlawful, and thereupon Schwed, who was distantly related to him by marriage, introduced defendant to brokers who were his friends, and did not deem it necessary to warn them with respect to what he claims defendant proposed, which, however, defendant denied.
No conviction should be allowed to stand on Sherwood’s evidence, even though it be corroborated. He admitted that he deliberately willfully committed perjury before the grand jury at the request of Field, in an endeavor to shield Field, and his testimony further shows that he had no regard for honesty in business transactions, and he had a motive in sustaining the position which he took with the district attorney for the purpose of obtaining immunity. No one should be deprived of his liberty on the testimony of such an accomplice. Of course, if
One hundred and two requests to. charge, most of which, however, were very short, only Covering from two to four
If the guilt of the defendant clearly appeared, errors in refusing to charge as requested in such circumstances might be disregarded upon the theory that it was the duty of counsel for the defendant to draw the attention of the court to any particular request omitted; but this, is not such a case, and there being serious doubt with respect to the guilt of the defendant, his rights should not be jeopardized either by errors of omission on the part of the court or of counsel. The court failed to instruct the jury with respect to the weight to be given to the testimony of witnesses who gave false testimony. One of the requests specifically drew attention to this point and it was in proper form, and the court was thereby requested to instruct the jury that if they believed that any witness deliberately and intentionally testified falsely they might disregard his entire testimony. By another request the court was asked to charge that if the jury believed that either Clark or Sherwood. willfully testified falsely as to any material fact, they were at liberty to disregard the entire testimony of either if they saw fit so to do. The court was also duly requested to make a like charge with respect to the testimony of Clark’s stenographer and of her uncle. No instructions were given bearing on these points. It is customary and proper to charge the jury to this effect where there is a basis therefor in the testimony of any witness, and the case at bar was eminently one in which such instructions should have been given. Laymen, ordinarily, do not understand this proposition and are often
On the cross-examination- of the defendant he was asked concerning some prior transactions between Persch and himself and a man from Massachusetts, who was known to him by the name of Fiske, but who had several aliases, and he admitted that he received as a result of those transactions a commission of $5,000, and that he was obliged to make up a loss on another. Sufficient was brought out by these inquiries to arouse suspicion with respect tq the defendant’s honesty in connection with those transactions and he was required to testify, over objection and exception, that Fiske was indicted here, and he was asked if one Aldhouse, of Boston, whom he knew, was not convicted of grand larceny in Massachusetts, but sufficient facts were not brought out to show that he was guilty of any crime in connection with those transactions. One of the requests called for an instruction that defendant was not being tried for participation in any other transaction and that if he had no guilty connection with the transaction specified in the indictment he should be acquitted and a separate request asked for' a charge' that there was no proof that any other transaction in which he participated was criminal or illegal. No instructions were given on these points, and while the learned trial justice charged generally that the defendant was entitled to an acquittal unless he was guilty as charged in the indictment, yet, in the circumstances of this case,, the jury should have been instructed with respect to the effect of the evidence concerning the other transactions. It- appears that counsel for the People in opening the case conceded that the testimony of Clark and Persch was not very reliable on account of tileir confessions of guilt in this transaction and the prior conviction of Clark and-the arrest of Persch on another prior charge of grand larceny, from which he received immunity by testifying for the People; but it was charged, in effect, that the defendant was in. no position to criticise their past or was no better than they, for he became their partner, and i: a man is known by the company he keeps.” There is no doubt that that was one of the damaging facts that, led to. the conviction of
I am also of opinion that the reception of Exhibit 17 over objection on the part of the defendant constitutes reversible error. That exhibit was received to corroborate the testimony of Clark, who was the author of it, and the ruling is sought to be sustained by Matter of Hesdra (119 N. Y. 617), which held that where a subscribing witness to a will died before the will was admitted to probate his declarations were competent to impeach the execution of the will, so far as his signature as a subscribing witness was concerned, precisely the same as if he had been called as a witness; and that where such impeaching evidence was given it was competent to show by other witnesses prior declarations of the subscribing witness during the life of the testator to the effect that the will had been made and that he was a subscribing witness. The court, however, expressly stated that the ruling was not intended as a modification of the general rule that when it is shown that a witness has made declarations inconsistent with his testimony he cannot be corroborated by showing that he made declarations consistent therewith, but was an exception thereto, and the court confined the exception to cases in which the witness is charged with giving testimony under the influence of some motive prompting him to give a false or colored statement, in which case it may be shown that he made similar declarations at a time when the imputed motive did not exist, and to cases where evidence is offered tending to show that an account of a transaction given by a witness is a fabrication of a late date, when it may be shown in contradiction of such evidence that he gave the same account “ before its ultimate operation and effect arising from a change of circumstances could have been foreseen.” I am of opinion that this evidence was not admissible within the ruling of the court in that case. The assistant district attorney in opening the case announced that Clark had been previously convicted of forgery and. had served a term in a reformatory, and that he had been promised immunity in this
I, therefore, vote for the reversal of the judgment of conviction and for a new trial.
Judgment affirmed.