189 A.D. 96 | N.Y. App. Div. | 1919
In the June term of 1917 the judgment of conviction herein was reversed by this court for an error in the charge, and a new trial ordered. (179 App. Div. 905.) At the same term, on motion of the People, the order of reversal was resettled to recite that the reversal was on law only, as the court had not reached an agreement on the facts. (179 App. Div. 127.) The People appealed to the Court of Appeals and that court, in January, 1919, decided that an appeal to it would not lie unless it affirmatively appeared in the body of the order that the Appellate Division had exercised its power to review the facts and that, being satisfied with the judgment in that respect, the reversal was ordered for errors of law only. The appeal was dismissed but without prejudice to a new application to the Appellate Division for the amendment and resettlement of the order by stating in it its decision upon the weight of evidence. (225 N. Y. 206.) Such application was thereupon made; and as two of the justices who sat when the court passed on the case were no longer members
The defendant was indicted and convicted for perjury. In an action for partition pending in the Supreme Court, there was an issue of the legitimacy of Beatrice Barker, a defendant in that action. That issue in turn depended on whether her mother, now named Estelle Dorgeloh, was married to one Alphonsus Murtha, or Murtagh, at the time of her marriage to Charles Barker, the father of the said Beatrice. An issue of fact was framed for trial by jury as follows: “ Was the defendant, Estelle Dorgeloh and the mother of the defendant, Beatrice Arabelle Barker, then known as Estelle Whitney, married on or about May 1st, 1897 to Alphonsus Murtha or Murtagh? ” The issue came on for trial before a court and jury. Complete proof was offered of a ceremonial marriage before a minister of the gospel on the date specified. The fact was not contested, as defendant Dorgeloh claimed that the ceremony did not effect a marriage. That contention was overruled by the presiding justice, who excluded evidence offered to show that the ceremony was not intended to effect a marriage and directed the jury to bring in a verdict answering the question in the affirmative. This the jury did after protest, resulting from evident disinclination to render a verdict that tended to bastardize the innocent defendant Beatrice.
The defendant Redmond, called as a witness for defendant, testified that on the 1st of May, 1897, at his mothér’s house in Degraw street, Brooklyn, he met defendant Dorgeloh, then known as Estelle Wbitney, and Alphonsus Murtha; that Estelle Whitney then and there said that she had been married to Murtha; that on the 30th of November, 1914, he accompanied the counsel for the defendant to Somerville, N. J.; that there he saw Murtha, who was the same man that he saw in his mother’s house on the 1st day of May, 1897. Upon this testimony he was indicted and convicted for the crime of perjury.
In considering the weight of the evidence it is well to keep in mind certain established facts. On the 1st day of May, 1897, Estelle Whitney was fifteen years of age and the defend
It is unfortunate that just at the close of the trial purely hearsay evidence, competent if at all only for the purpose of impeaching a witness, was given and repeated, to the effect that some member of the Barker family had offered to use large sums of money for the purpose of securing evidence of the marriage of Estelle Whitney and Murtha. In view of the conclusive proof of the marriage by the testimony of the clergyman and a witness to it, and of the public records, the suggestion that any member of the Barker family was resorting to such methods to secure evidence of negligible value is incredible. However, the jury, which often does not appreciate
It is a question whether, in view of the evidence adduced on the trial, the affidavit, considering the way in which it was obtained, although it presumptively established the falsity of the testimony, was sufficient as a basis of conviction; but I prefer to place the decision that the verdict was against the weight of evidence on the ground of the insufficiency of the evidence to show that the testimony was willfully given.
The judgment of conviction should be reversed upon the facts as well as the law, the order of reversal settled accordingly, and a new trial ordered.
Jenks, P. J., Mills and Rich, JJ., concurred; Jay cox, J., dissented.
Judgment of conviction of the County Court of Kings county reversed on reargument upon the facts as well as the law, the order of reversal settled accordingly, and a new trial ordered.