35 N.Y.S. 237 | N.Y. Sup. Ct. | 1895
The questions which are presented upon the motion to set aside the indictment will he considered in the order in which they are summarized in the brief of the counsel for the defendant. It may be said, however, before eon
Heither does the affidavit afford any sufficient reason for requiring the production of the testimony taken before the grand jury. The belief of the defendant, based upon alleged information which he does not reveal, can never be sufficient to warrant a finding that there were improprieties or irregularities before the grand jury, or a lack of evidence to sup. ' port their finding. With these preliminary observations, tb,e particular objections made to the indictment, and which are established by the evidence, will be discussed.
The first complaint is that Folsom and Daniels, two persons who were imprisoned in the state prison upon a conviction for felony, were brought from state prison, to Corning and sworn before the grand jury. That these people were competent
The next .objection,is that the defendant was compelled to _ give evidence .against himself. The facts bearing upon that point are as follows : .. The note, for the forgery of which he was indicted, had been taken up by the defendant, and was in . Lis possession. -Before the-sitting-of.' the court he-was served ' with a subpoena duces,tecum, to produce that note. That subpoena was returnable on the tenth day of April. . The defend- ■ :ant was present as a witness, for -the purpose of appearing before-the grand, jury upon a complaint'made by. him against another person whom he sought to -have indicted. It appears. from, the testimony of. the district attorney that, before the return of the subpoena duces tecum, he met the defendant, in. the street in the city of .Corning, where the court was holding, ¡and asked him for the note, which the defendant said-he would Willingly give him,, and thereupon at once produced it to the •district attorney. This Was before he was asked to go before the grand jury,- At .the timé of handing, the note to, the district attorney he made a request that if a charge against him ' should be presented he might be permitted to appear and explain it, to which the district attorney consented. . All this took place before he was - called- to appear1 before the grand jury "and out of court.
The defendant is a lawyer, familiar with criminal practice and vyith proceedings before the grand jury. He knew, as,
After the witnesses had been sworn against him béfore the grand jury, he was permitted to appear and to make such explanations as he saw fit to make, having been told that he need not answer any questions unless he saw fit. It is quite true that no person can be compelled to give testimony criminating himself, and it is quite probable, as suggested by the judge giving the opinion of the court in Counselman v. Hitchcock, 142 U. S. 547, 581, that no mag can be compelled to produce his private papers to enable people to use them to convict him of a crime. The courts have been careful to ■enforce this rule of law,, and not to permit any violation of it, however important to the interests of justice it might seem' that the evidence should be given. But the law which is thus tender of the rights of accused persons does not prevént them from saying or doing whatever they may see fit by way •of accusing themselves both in court and out of court. The privilege not to give evidence is one which may be waived, and if it is not waived the person who pfermits himself to be a witness, or sees fit to produce his papers, must expect that what he says or the papers he produces shall be used against him precisely as though the evidence was given or the paper produced by somebody else. Nobody would claim that if this ■defendant, meeting the district attorney Upon the street, had admitted that he was guilty of the crime charged against him in this indictment, that the district attorney might not be sworn to prove that statement, although the statement could not have been compelled after the defendant had been sworn. It is well settled that whenever an accused person sees fit to put himself in the 'position of a witness he is in precisely the same situation as any other witness, and the. opposing party has the same right to cross-examine him as he would any other
If the defendant desired to insist upon his right to retain this note in his own possession he should have refused to give it to the district attorney, and insisted that he could not be compelled to do so. As he did not chose to do that, but preferred to waive his right, and produced the paper out of court when he was.not under the stress of subpoena, he is certainly- , not in a-situation to say that-he was compelled to produce evidence.
- The next -point made is that Folsom and Daniels were accomplices, and their testimony given before the grand jury was- not corroborated. It might -be sufficient to say, with reference. to- this point, that there is not one particle of evidence to-sustain it., The only evidence on the subject is that of the - defendant himself, who. says that he is informed and believes that there was no corroboration of the testimony of Folsom and Daniels. The weight to be given to such an affidavit as, that has already been considered.
What other testimony was given before the grand (jury does not appear. It does appear, however, that the defendant himself went before the grand jury and told his story with regard to- this charge, from which it is necessarily to be inferred that-there was other evidence than -that of Folsom and Daniels. The district attorney says that there was -corroborating evidence, and upon that condition of affairs all that can be said - is that there is nothing to support the«statement of the defend-ant, that no other evidence was given;
It is objected that the same charge had been submitted to the grand jury at the September term, 1894, and -dismissed, and that no order was made by the, court for the resubmission of ■ the - charge.. The facts upon ; that matter very clearly appear.. It appears that in -September, 1894, a complaint was made to the grand jury against Folsom and Daniels for the forgery of this same .note for which the defendant is now indicted;-, that several witnesses- were .examined upon that charge, one of them being -this defendant himself. It appears
It is very questionable whether the affidavits of the grand jury as to what occurred before them ought to have been presented, but as they were presented both by the defendant and by the People, and no objection is made by either party to the consideration, I have considered them. Considering those affidavits, the People establish, by a large preponderance of the testimony, that no" charge was made against Sebring, and that there was no action upon it, and consequently there could be no dismissal of it. It is quite true that Folsom made some charge against him in the course of his general statement, and that because of that statement two witnesses were examined upon the subject. But it must be adopted as the- facts of the case that there was no consideration of a charge against him, and that consequently there was no dismissal of it. That being so, no order for a resubmission was necessary, because that is only made necessary when the charge against the per?
The next point is that the grand jury was not properly-organized. It appears from the testimony that there was considerable irregularity, to say the least, in the way in which, the names of the grand jurors were selected - by. tlie super‘-visors. ’ In fact, it may be said that- upon the affidavits it appears that the supervisors as a. body never acted, but that: the lists presented by the several town supervisors were tiled, with the county clerk and by him those names were put upon slips and put into the grand jury boxes. It appears that lie-put the names of the grand jurors from the towns and 'cities-in the southern jury district into one box and those from the northern jury district into another. It is complained that this was an irregularity. The law dividing the county of Steuben into jury districts (Chap. 374, Laws of 1881) does-not provide in terms that the grand jury of each court shall be selected from the towns in the -jury district in which that-court is held, but such has been the practice in the county since 1853, when the county was first divided into jury districts. During all those years grand jurors for the courts in the southern district have been drawn from the towns of that district; and for. the northern district from the towns of that, district. That practice has been well, known to every judge and lawyer living in the county. The county judges presiding at the drawing of these grand jurors have been men eminent in the profession, and although hundreds of indictments have been found since that mode of drawing began,, many of them for grave offenses, and not a few strongly litigated by eminent counsel who were aware of this manner of drawing grand jurors, no objection of this kind seems to have been taken. This amounts to a contemporaneous con-_ straction of the law, which is of very high authority, and it' should be followed unless the law is so plain as to imperatively require another construction. That is not the case here. I think it is proper and it was intended that the grand jurors
It appears that although the names of the men drawn as grand jurors were not selected by the -board of supervisors, . yet that they were presented by the clerk'.of the board to the county clerk and by him put into the box. It is conceded that all the proceedings connected with the drawing and organization of the grand jury were properly taken. 1 That being so, I think the Case is precisely within the decision of the Court of Appeals in People v. Petrea, 92 N. Y. 128, and within that case the grand jury must be held to have been a legal body and the indictment found by them to have been good.
The case of People v. Petrea was examined by the Court of Appeals in -a subsequent case and by them followed, and it must be held that it is now undoubtedly the law of this state. People v. Hooghkerk, 96 N. Y. 149.
This disposes of all tbe points made by the defendant upon the motion to set aside the indictment, and the conclusion reached is that the motion must be denied.
The ' defendant' has, however, filed and here presents a demurrer to the second count of the indictment, which has been presented at the same time. The ground of demurrer is that more than one crime is charged in the second count of the indictment, to wit, the crime of forging and the crime of uttering forged paper.
The second count of the indictment in the first place charges the defendant with uttering a forged note, knowing it to be forged, and in the same indictment it charges that at the same time and place he counseled, induced, aided and pro-; cured'Edward E. Folsom and William J. Daniels to forge the name of Bradley Layton upon the back of the note, with , intent to injure and defraud the said Bradley Layton;. There can be no doubt that this- second count not only charges the uttering of a forged paper, but it charges that Sebring ’ procured the forgery to be committed, and that amounts to
Ordered accordingly.