260 A.D. 452 | N.Y. App. Div. | 1940
Lead Opinion
The defendants were jointly indicted for the crime of burglary in the third degree by the grand jury of the county of Chemung. The defendants entered a plea of not guilty to the indictment.
The only serious question in the case is whether section 295-1 of the Code of Criminal Procedure applies as well to the defendants personally as to any other witness.
Section 295-1 of the Code of Criminal Procedure is as follows: “ In all cases where a defendant has been indicted by a grand jury, the prosecuting officer may, not less than eight days before the case is moved for trial, serve upon such defendant or his counsel and file a demand which shall require that if such defendant intend to offer, for any purpose whatever, testimony which may tend to establish bis presence elsewhere than at the scene of the crime at the time of its commission, he must within four days thereafter serve upon such prosecuting officer and file a bill of particulars which shall set forth in detail the place or places where the defendant claims to have been, together with the names, post-office addresses, residences, and places of employment of the witnesses upon whom he intends to rely to establish bis presence elsewhere than at the scene of the crime at the time of its commission. Unless the defendant shall, pursuant to such demand, serve and file such bill of particulars, the court, in the event that such testimony is sought to be interposed by the defendant upon the trial for any purpose whatever, or in the event that a witness not mentioned in such bill of particulars is called by the defendant to give such testimony, may exclude such testimony, or the testimony of such witness. In the event that the court shall allow such testimony, or the testimony of such witness, it must, upon motion of the prosecuting officer, grant an adjournment not to exceed three days.” (Added by Laws of 1935, chap. 506, in effect July 1, 1935.)
The district attorney made a demand upon the attorney for the defendants under section 295-1 of the Code of Criminal Procedure for a bill of particulars, which demand was ignored by the defendants’ attorney and no bill of particulars was served.
At the close of the People’s case and again at the close of all the evidence the defendants moved for a dismissal of the indictment and the discharge of the defendants on the grounds that the People had failed to prove the crime set out in said indictment or any other crime. These motions were denied and at the end of all the
The only witness sworn on behalf of the defendants was Charles Shambrock, one of the defendants. Upon bis direct examination the following occurred: “ Q. Did you have occasion the evening or night of August 31 to see. Rakiec? A. No, sir. Q. Well, did he live at the same place you did? A. Yes, sir. Q. Did you see him there in the early morning of September 1? Mr. Reynolds: Just a minute. I object to this, if the Court please, on their alibi. Mr. Hoover: This isn’t a question of alibi. What in the world are you talking about? Mr. Reynolds: Well, listen. Read the question, will you please, Mr. Berry? (The last question was read by the stenographer.) Mr. Reynolds: I make that objection, if your Honor please, establishing bis presence elsewhere than the scene of the crime. Mr. Hoover: That isn’t an alibi, for the goodness sakes; a defendant has a right to testify as to his whereabouts. I am going to bring him right down through that evening. The Court: Overruled. (The last question was read by the stenographer.) Mr. Reynolds: If your Honor please, the question: ‘ Did you see him to your house on Grand Central Avenue in the early morning hours of September 1? ’ is direct contravention of this crime of September 1 at the Goodyear Service. Mr. Hoover: Wait a minute. Will you let me establish the time? I will withdraw it for the present. By Mr. Hoover: Q. Did Tony Rakiec live at Fortuna’s, too? A. Yes, sir. Q. Did he have a room near you in that Inn, or did he have a room— A. Yes, sir, on the same floor. Q. Where with reference to your room? A. He was three rooms away from my room. Q. Now then, on September 1, the early morning of September 1, 1938, did you see the defendant, Tony Rakiec, there at the Fortuna Inn? A. Yes, sir. Mr. Reynolds: Now, I ask that that be stricken out, if your Honor please. That question is directly in contravention of the alibi. The Court: Well, it doesn’t show what time. Mr. Reynolds: I ask counsel to name a time. Mr. Hoover: You will find out. Mr. Reynolds: No, I ask that he name a time. The Court: Overruled. Mr. Reynolds: Exception. By Mr. Hoover: Q. Where was he at the time you saw him? A. He was going across in front of my room to another man’s room. Q. Did there come a time when you and he left that establishment in the early morning of
Among other things the court said: “ I don’t see how anybody could possibly read it [section 295-1 of the Code of Criminal Procedure] to not apply to the defendant.”
Section 295-1 of the Code of Criminal Procedure did not repeal the provisions of section 393 of the Code of Criminal Procedure.
Where a defendant has been deprived of the benefits of section 393 of the Code of Criminal Procedure he was not accorded a fair trial. (People v. Wujanik, 239 App. Div. 764, 765; People v. Fitzgerald, 156 N. Y. 253; People v. Mantin, 184 App. Div. 767; People v. Rosenzweig, 135 Misc. 324.)
There is nothing contained in section 295-1 of the Code of Criminal Procedure which compels a defendant to incriminate himself nor is there anything which compels him to give any information to the district attorney, unless he voluntarily and for his own benefit intends to use an alibi defense. (People v. Schade, 161 Misc. 212.)
There are two States where similar alibi statutes are in force and their constitutionality has been expressly and impliedly upheld. (People v. Wudarski, 253 Mich. 83; 234 N. W. 157; People v. Marcus, 253 Mich. 410; 235 N. W. 202.)
In the case of State v. Thayer (124 Ohio St. 1; 176 N. E. 656) the defendant, whose alibi testimony had been excluded because he did not serve a bill of particulars of his defense of alibi, was convicted by the trial jury. Upon appeal to Ohio’s Court of Appeals he directly attacked the constitutionality of the statute. That court held the alibi law unconstitutional. Upon appeal by the State’s Attorney to the Ohio Supreme Court, its highest court, that court reversed the finding of the Ohio Court of Appeals and held the statute constitutional and said:
“ The trial court excluded the testimony of certain witnesses offered by Thayer for two purposes: First, to establish an alibi; and, second, to contradict testimony offered by the State tending to establish that Thayer was in Stark County at the time named in the indictment. Thayer contended that at the time named in the indictment he was not in Stark County, but was in Canada on a fishing trip with witnesses whose testimony he was offering in support of his defense of alibi. The trial court rejected this testimony because the fact was admitted by Thayer that he had not given the prosecuting attorney before trial the notice required by Section 13444 — 20, General Code, known as the alibi law.
“ The Court of Appeals held that Thayer was not required to give such notice for two reasons, that is to say: First, that Section 13444r-20 is unconstitutional, and, second, that even if it were constitutional, the testimony could not rightfully be excluded*458 although it tended to establish an alibi, because the evidence offered was competent on the other ground, that it tended to contradict testimony offered by the State in support of the charge in the indictment.
“ We cannot concur with the Court of Appeals in the reasons assigned by that Court to sustain the unconstitutionality of Section 13444-20. This law pertains to a very important feature of the Criminal Law. It gives the State some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the State to ascertain any facts as to the credibility of the witnesses called by the accused, who may reside at some point far distant from the place of trial. Thayer was not denied the right to testify himself fully as to his whereabouts at the time covered by the indictment. To admit such testimony from other witnesses on the ground that it tends to contradict testimony offered by the State is simply an indirect way of nullifying the statute entirely. Manifestly any alibi testimony must, in the very nature of things, contradict the evidence offered by the State, for the obvious reason that if the accused was not in the county and State at the time named in the indictment, then he cannot be guilty as charged, excepting, of course, instances in which he has aided or abetted or induced another to commit the crime during his absence from the place of the crime.”
In that case Thayer was not denied the right to testify fully as to his whereabouts at the time covered by the indictment. In this case the court refused to let the defendant Shambroek testify fully as to his whereabouts and, therefore, denied him his rights under section 393 of the Code of Criminal Procedure.
Section 295-1 of the Code of Criminal Procedure does not apply to the testimony of defendants but only of other witnesses produced for the purpose of giving evidence upon the question of an alibi.
The defendants having been denied the privilege of testifying under section 393 of the Code of Criminal Procedure have not been given a fair trial and the judgment of conviction is reversed and a new trial granted upon the law and the facts upon the ground that the defendant Shambroek was not permitted to testify fully as to his whereabouts on the night of the alleged crime.
Hill, P. J., Heffernan and Schenck, JJ., concur; Bliss, J., dissents, with an opinion.
Dissenting Opinion
(dissenting). I respectfully dissent from the opinion for reversal.
Section 295-1 of the Code of Criminal Procedure is very broad and by its plain terms prevents a defendant as well as other witnesses
Judgment of conviction reversed upon the law and facts, and new trial granted upon the ground that the defendant Shambrock was not permitted to testify fully as to his whereabouts on the mght of the alleged crime.