201 A.D. 549 | N.Y. App. Div. | 1922
The defendants have been convicted of a violation of section 580 of the Penal Law of the State in obstructing the administration of justice by conspiring to aid in the compounding of a felony. On the 17th day of February, 1915, Napoleon Arthur Bourassa was married in the county of Kings to one Helene Montrose St. Marie. She is named at times through the evidence as Helene Montrose. Upon October 30, 1919, Bourassa was arrested and held in the Magistrate’s Court upon a charge of the crime of bigamy upon the complaint that at the time of his marriage to the said Helene Montrose he had a wife living, to wit, one Mary Coyne. Upon the investigation of this criminal charge it appeared that it was
The defendants strongly insist that they have been denied a fair trial of the charges against them and that the trial judge so placed before the jury his personal conviction of the defendants’ guilt as to preclude a fair consideration by the jury of the facts which are required to be established before a verdict of guilty could have been rendered. Among other things appearing in the charge of the court we find the following: “ This is not a case of one individual against another. This is not a case where the wrong, if any, to Helene Montrose St. Marie can be righted if that wrong ever could be. You are not sitting in judgment upon the question of whether she had received adequate pecuniary compensation for a wrong which it may be no human medium of exchange- can ever right. This is a question as to the violation of the laws of the State of New York and the rights of the whole People of the State of New York.
“If by reason of the acts of these defendants you are satisfied, or if you are satisfied beyond a reasonable doubt that the acts of the defendants have interfered, have obstructed or perverted justice, and interfered with the due administration of the law, it is the whole People of the State of New York that are affected. If you believe the evidence in this case,— I would not say the evidence — but the evidence and the suggestion of everything in this case that is possible, there is without dispute a woman, who as counsel said, is now neither maid, wife nor widow, but who fortunately has not borne a child; there is another woman deserted after bearing a child. I see you shaking your head, Mr. Proskauer, and I was wondering whether you did so.
“ Mr. Proskauer: I am in silent communication with Mr. Rand. I would prefer, with your Honor’s permission, not to take the task of answering specific interrogation, because it is impossible for me in justice to my client, to do so in the light of your Honor’s whole charge.
“ The Court (continuing): And the suggestion also appears that some one in Canada married Bourassa. Leaving out of consideration suggestions as to the earlier relations, coming right down to the last, can there be any doubt under our system of social law, that a great wrong was done to the People of the
This charge threw into the balance against the defendants the duty of a punishment for the great wrong committed against Helene Montrose, and this, as I view it, improperly, because upon the theory of the prosecution itself, the crime of the compounding of this felony, for which the defendants have been convicted was committed upon the desire and request of Helene Montrose and in her interest that she might receive such compensation as was possible to be obtained for the wrong thus committed. Granting all that can be pictured or that was pictured as to the enormity of the crime of which Bourassa was guilty, the enormity of that crime as against Helene Montrose was not chargeable to defendant Kilroe. His only fault as against her was in the failure to prosecute for the crime at her réquest and in her interest, and the impressive charge thus made by the court cannot be said to have been without influence in the rendition of the verdict of guilty. Not only does the court appear to present the enormity of this
Again, just before the court charged the jury the question arose as to the inference which the jury might draw from the absence of Bourassa from the trial, as he did not appear to defend, and the following occurred: “ The Court: Do not get into a discussion as to what is the only plain inference. If there is any inference to be drawn, the jury are the only ones who can draw it. Now the question as to whether any inference is to be drawn from the failure of Bourassa to be present is one that I don’t think the court can pass upon. I think the jury are the only ones who can determine whether there is any inference whatever to be drawn, and if so, what it is. I will say to the jury now that counsel for these defendants claim that no inference can be drawn from his absence. I shall leave it to you as to whether any inference can be drawn from that. Mr. Neilsen Olcott: Against the defendant? The Court: If there is any. That of course, will depend — I don’t say will — may depend on whether the jury believe whether first there was a conspiracy, and second, whether Bourassa was one of the conspirators. Mr. Proskauer: I shall not detain you any longer further than to permit me to take an exception to your refusal to tell the jury that as a matter of law no inference can possibly be drawn against these men by reason of Bourassa’s absence. Mr. Neilsen Olcott: I join in that exception. Mr. Rand: If stated that way, probably your Honor should tell them that that was not what I said. Mr. Proskauer: That is the way I understood it, and that is the way I ask it. I shall urge certainly to the best of my ability and with such strenuousness as I know how— The Court: While I am in some doubt as to whether that is a correct statement, I mil charge the jury that as a matter
It will be borne in mind from this quotation that the court at first left it to the jury to say whether any inference could be drawn against the defendants from the fact that Bourassa did not appear as a witness upon the trial. To this exception was taken by the defendants’ counsel. The court then modified the charge to the effect that it could not be said that as a matter of law any such inference could be drawn, still leaving to the jury, apparently, their right to pass upon the .question as a fact whether such an inference might be drawn as against the defendants. The defendants, of course, took no exception to this modification, because the modification was to an extent in their favor, but the exception still remained to the ruling that had been before made in the presence of the jury to the effect that they might give effect to the absence of Bourassa as an inference against the defendants. That the absence of Bourassa from the trial could not be considered as matter of law or of fact as prejudicing the defendant hardly needs discussion. He was not under the control of the defendants, nor was there any pretense that the defendants had any power to procure his presence. The charge of the court that he was in some doubt as to whether the defendants were chargeable or not, nevertheless, he would charge the jury that as matter of law no inference was to be drawn against the defendants from the non-appearance of Bourassa, was not such an unqualified withdrawal of the direction first given by which the defendant could be charged by the jury with such an inference as was the right of the defendants. They were entitled to the charge both as matter of law and as matter of fact that defendants had no such power or control over Bourassa as to raise any presumption or inference against them by the failure of Bourassa to appear. The statement of the court that he was in some doubt as to the law impaired largely the charge made in connection with that statement that they were to draw no inference as matter of law against the defendants for such non-appearance. It may be argued by the People that the whole controversy as above quoted shows that the right of the jury to draw an inference was entirely withdrawn as matter of law and as matter of fact ánd that it was so understood by counsel. The inference against the defendants as a matter of law was clearly withdrawn, but the right to draw the inference as matter of fact was not in explicit terms withdrawn from the jury. In a case resting only upon circumstantial evidence, the right of the jury to draw inferences
The defendants further complain that all through the trial, by the activity of the court in asking questions, and by the nature of the questions asked and the remarks made in characterizing the testimony of witnesses and the criticism of counsel, the defendants were unduly prejudiced in their defense. It is a general rule that the court should not throw his personal convictions into the scales by which the defendant’s guilt is to be weighed and that the jury should feel free to determine the questions submitted without indication on the part of the court as to the court’s conviction of the guilt or innocence of the accused. This general rule may be subject in some cases to exceptions. Where many interruptions are made and questions asked by the court, it is humanly impossible to leave the jury without an impression of the convictions of the trial judge upon the question of guilt. Where able counsel are trying a case the examination of the witnesses should not be taken from them, unless for the purpose of malting clear some point that has been omitted, and even then if attention were called to the point, the matter could be clarified by questions from the counsel. Many questions were asked during the trial of this case unnecessarily by the trial judge from which only one inference was possible, and that inference pointed to the guilt of the accused, and the impression thus conveyed can seldom be wholly removed by any charge of the court, howsoever explicit, to disregard any opinion which they may think the judge entertains upon any question involved. Upon a full examination of the evidence and of the record of the trial, I am of the opinion that the accused did not have the fair trial contemplated by our law and that the verdict was not unaffected by a compelling influence by the court from which it is the settled policy of our law to safeguard a defendant charged with crime.
The judgment of conviction should be reversed and a new trial granted.
Dowling, Laughlin, Merrell and Greenbaitm, JJ., concur.
Judgment reversed and new trial granted. Settle order on notice.