86 N.Y.S. 529 | N.Y. App. Div. | 1904
The notice of appeal herein purports to be an appeal from a, judgment convicting the defendant of the crime of grand larceny in the’Second degree. lío such judgment of conviction was entered in this case, nor was there any indictment or verdict upon which it could be based, but as the notice of appeal also specifies that it is from each and every part of the judgment which was rendered it is perhaps sufficient. The People raised no point in respect thereto and we consider the case upon the assumption that the notice of appeal is sufficient to bring up the judgment and the record upon which it was based.
The indictment contained two counts: one for “ the crime of an attempt to commit the crime of willfully and unlawfully removing ” certain indictments which had been found against one Bichard 0. Flower, wherein he was charged with the crime of grand larceny in the
It is claimed by the learned counsel for the defendant that the-evidence developed upon the trial did not disclose the commission by the defendant of an indictable crime, or of an attempt to commit-a crime, and the disposition of this question involves a consideration of the testimony given upon the trial. It appeared that Richard C. Flower was a physician and was also engaged in promoting certain mining interests. In connection with such enterprise he was indicted under six different indictments for alleged larcenies, and was also suspected of being implicated in the suspicious death of one Ilagaman,. which case the district attorney was investigating shortly prior to> the offenses charged in the present indictment. Francis P. Garvan,, an assistant district attorney of the county of New York, had special charge of the prosecution of the indictments against Flower and. also of the investigation of the death of Ilagaman. The defendant, was a lawyer, engaged in the practice of his profession in the city of New York with a son of Richard, 0. Flower, and he was also interested in various mining, companies in connection with Dr. Flower and Andrew D. Meloy and others at the time when the indictment® were found against Flower, and when he was being otherwise investigated, and he took a very lively interest in Dr. Flower’s behalf..
It appeared from the testimony of Meloy that he was president and. a member of the board of directors of the Lone Pine Mining Company of which board of directors the defendant was a member ;■ that on Saturday, March 28, 1903, at a directors’ meeting of this mining company, the defendant called attention to the prosecution® against Dr. Flower and stated that it was having a bad effect upon the company; that he thought Garvan was persecuting Flower; that: the ends of justice were not being promoted and he expressed a. wish that the directors should pass some resolution asking Garvan- or the district attorney’s office to discontinue the attack upon Flower. Such resolution, however, was neither adopted nor offered. On the next day Meloy testified that he received a telephone message from the defendant asking him to meet him on Riverside drive, about-Eighty-fifth or Eighty-sixth streets; that he met him there alone,,
The evidence was abundantly sufficient from which the jury were authorized to find that the defendant was engaged in an attempt to bribe the district attorney’s office and those who represented it, and to procure them to deliver to him the indictments'in order to secure their destruction and to suppress further investigation in connection with the Hagaman matter. The answer which defendant made and the story which he told, in view of the admitted facts, was highly improbable and it is not at all surprising that the jury rejected the defendant’s version, and no doubt exists in our minds but that upon the evidence the verdict of the jury ought not to have been otherwise than it was.
The defendant, however, contends that, admitting all this evi
The place where the indictments were kept was in the clerk’s ■office of the Court of. General Sessions. The indictments were written records, kept, filed and deposited according to law in a public office and with a public officer. The indictments, therefore, answered the description contained in subdivision 3 of section 531 of the Penal Code, and as the defendant is shown to have unlawfully obtained them, he was brought within the provisions of this
It is claimed, however, that the learned district attorney lured and entrapped this defendant into an act of criminality, and with-full knowledge of all of the circumstances induced the defendant to commit the crime, and that under such circumstances no crime is ' committed, even though if it had been done in the absence of such inducing causes it would have constituted the commission of a crime. This view ignores entirely the evidence given by Meloy, and accepted by the jury, that the defendant was the original actor in instigating the scheme by and through which in some form and manner and by the use of felonious means Garvan was to be corrupted and Flower relieved from being called upon to answer for the crimes for which he then stood indicted. There was no act of the district attorney or Officer Brindley which prompted the defend
In the learned note by Mr. Francis Wharton in Bates v. 77. 8. (10 Fed. Hep. 92, 97), the distinctions are. stated and many authorities are collected. After discussing the cases in which decoys and traps were resorted to to detect persons engaged in perpetrating crime, wherein the person has been excused from the effects of his act, and those which have been held to be proper, he states the general principles in these words : “ The only exceptions known to the principle before us exist (1), in cases in which to the offense it is essential that it should be ‘ against the will’ of the party injured; and (2), in cases- in which the offense consists in certain physical conditions which cannot "exist if a trap be laid. (1) When it is a condition to an offense that it should be ‘ against the will ’ of the party injured, then there must be an acquittal should it appear that such party invited the defendant to the commission of the offense. This is the case with' regard to prosecutions for rape (citing cases) to prosecutions for highway robbery (citing eases) to prosecutions for assaults, which are not in themselves offenses against the public peace (citing case). (2) When there are physi
We do not feel called upon to examine or to comment upon the numerous cases cited by the defendant, and by which he seeks to ■controvert these rules. Hone of them are in conflict with the authorities to which we have called attention. For the most part they are cases of burglary or common-law larcenies, where the consent of the owner to the perpetration of the offense destroyed the
The exceptions taken in the course of the trial were numerous. We find it necessary, however, to discuss but one. Mr. Garvan was called as a witness and testified that he was in charge of the homicide bureau in the district attorney’s.office, and that he had charge of an investigation into the death of a man named Hagaman. This was objected to as incompetent, irrelevant and inadmissible. The objection was overruled and an exception was taken thereto. The witness then proceeded to state the circumstances in connection with such investigation, from which it appeared that Hagaman died September 10, 1901. Subsequently the circumstances of his death were found to be suspicious, the body was exhumed, an autopsy performed and a chemical analysis made of certain organs of his body. Dr. Flower and Mrs. Hagaman and a. great number of other witnesses having knowledge of the circumstances surrounding his death were examined. It is defendant’s claim that this evidence was manifestly prejudicial to the defendant’s rights; that it was collateral to the issue and, therefore, essentially .incompetent. . The existence of the investigation into the death of Hagaman and Dr. Flower’s connection with it was one of the inducing' causes which prompted the defendant to the commission of this offense. This appears clearly in all the testimony. The knowledge of Garvan upon such subject and his state of mind with respect to Dr. Flower’s connection with the death was one of the things which the defendant sought to influence and to -induce Garvan to- abandon the investigation, both upon Dr. Flower’s account and on account of the defendant’s client, Mrs. Hagaman. The existence, therefore, of this investigation and the attitude of Garvan towards it was- highly important testimony as bearing upon the motive which prompted the defendant to the commission of the offense, and evidence bearing upon such question has always been held to be admissible. (People v. Sutherland, 154 N. Y. 345.) If the facts developed in the investigation of Hagaman’s death were of such a character as to show criminal acts upon the part of Dr. Flower or Mrs. Hagaman in connection therewith, the clearer and.
We reach the conclusion that the defendant was justly convicted, and his crime was clearly established.
The judgment of conviction should, therefore, be affirmed.
Patterson, Ingraham and Laughlin, JJ., concurred; Yak-Brunt, P. J., dissented.
Judgment affirmed.