People v. . Sharp

Sharp, ü. Appeals. Court

November, 1887. v. SHARP. PEOPLE Rep. 388.)

(Reversing 5 Grim. N. T. to—Legisla- Bribery—Penal of, as Code, Provisions — Investigations Crime—(cid:127) Evidence—Prior tive Witness—Flight Co- Mental Conclusion defendant. subpoenaed, herein, indictment was defendant, prior finding of the among investigate, other appointed to a committee the Senate Co., obtaining, Broadway Railway in things, the methods city granting the consent York in of New conduct aldermen such, railway, oath before testified under and he construction of said behalf, protest or committee, response questions their without objection part. Subsequently, trial of this indictment on the on his aforesaid, to- bribing intent member the Board of Aldermen application said com- influence his action the afore-mentioned objec- testimony was, pany consent, under for said said defendant’s evidence, prosecution, exception, tion and on behalf of the admitted in against his interest. as admissions elsewhere made the defendant appeal, testimony, claimed, a conviction defendant on his Without not, Held, admission could had. not have been granted. should be error, such evidence a new trial for which testimony given under Penal committee 79§ Such before the Senate on, against Code, privileged, used defendant and could not be the trial of said indictment. provisions, compulsory its Section 79 aforesaid not unconstitutional testimony provision forbidding use of the since also contains a protection it; held that this giving and it cannot be infamy disgrace dis- prevent is insufficient because it does not closure. inquire, through of, power cognizance The Senate has full to take public committee, alleged public power corruption into abuses of existing officers, having possibility in the of an alteration view ; power carry appointing law and resolution has committee them, examining effect, by into compulsorily subpoenaing witnesses under oath. York

.570 New Criminal necessary protection It is not of a before such a committee witness should, by word, defiance, obey he or deed set at or refuse to either summons, questions committee, refuse to answer of the since appearance testimony compulsory. both his and are given 'The evidence of a a pen- witness before such committee is under the alty contempt proceedings, appear testify pun- and his to refusal a ishable as misdemeanor under 68 and 69 of the Penal Code. §§ 79, Code, aforesaid, legislative investigations Section Penal embraces such as are above referred to. appointing Under the aforesaid, recitals of the resolution the committee “against per- defendant said was a witness before committee another n son,” viz., against as are those words used 79 aforesaid : § Board of Aldermen. 69, Code, That sections Penal make at- the refusal a witness to testify committee, legislative misdemeanor, a tend á inquiry proper questions, limit material and to does not make im- proper question criminating a a which calls for answer. Said sections - operation 78, every 79, do not exclude of sections under which question may investigation, “pertinent” be asked in such which is subject-matter. to the Defendant bribing, 1884, Fullgraff, alderman, was indicted for one an with to action, regard Broadway intent influence oflieial Rail- way petition, with, and his defense was a denial of all connection or know- ledge alleged payment Fullgrafl:. admitted, of the to said Evidence was objection exception, tending attempt under defendant’s to show an by Pottle, engrossing made him in to bribe an one in the clerk state legislature, change language pending, make in the of a bill then so that Broadway. its terms authorize the construction of railroad good Ho issue as to character was tendered trial defense. The “ judge charged jury evidence, only were consider such as “ showing exhibited,” showing zeal which defendant and as the ex- interest, tent feeling desire,” of defendant’s pur- and for no other error, pose. Held, that the admission of this evidence was not cured charge. Miller, alderman, One prosecution, and, was called as a witness objection exception, under defendant’s testified that after the con- building Broadway Railway sent” to the granted, by of the the al- dermen, $5,000 by given DeLacey, he was nothing one and that was said paid as to what it response question for. prosecu- In to the of the ” tion, you time, gave you What did think at he it to for ? which repeated forms, finally was several times in various he an- ” swered, suppose Broadway “I appear was for the road. It did not party any agreement Miller was a concerning passage Broadway Railway resolution, payment and the transaction of the Held, not with the that the admission of the mental conclu- defendant.. sion of the witness as to gift, the consideration inducement of, or was error. prosecution, objection exception, defendant’s under were allowed r. co-defendants, were the evidence who shown prove certain of the intermediaries, or crime, instruments in the to have been concerned only found, state, and parties, from the were guilty absent of other were testimony offering prosecution af- search, Canada, long after showing them, purpose of due dili- firmatively, for the sole as stated privy their absence. being gence, no claim that defendant was there sufficient, standing alone, for a trial. though if call new Weld, error, Jacob from defendant Sharp judgment Appeal by in the Court First Depart- General Term of the Supreme and Term- ment, of the Court of Oyer affirming judgment defendant iner of York conviction New county, upon (cid:127)of bribery. in the of the case at Gen- report The facts fully appear Term, ante,

eral p. 388. for de- Cockran, W. counsel Albert BourTce and Stick,ney, fendant appellant. Martine, B. Be Nicoll district Lancey attorney,

Randolph Comstock, assistants, and McKenzie F. of coun- and Creo. Semple, sel people, respondent. J. found The indictmentwas October

Dakfokth, 1886. In it substance and six accuses Jacob other persons, Sharp, offered, and and and to be giving offering, causing given to one a member of the Common Council of the Fullgraff, York, dollars, New thousand with intent city twenty influence him in to the of his and exercise respect powers Council, such member of the Common the functions as of the Surface for Railway Broadway Company application the of a consent the Common Council construction street was tried Direct evidence separately. railway. Sharp find that had from which was given Fullgraff jury might of a bribed, in fact and other evidence circum been altogether conclusive, character, sufficient, and no means stantial by verdict, said their warrant finding have jury in the commission of the was concerned Sharp crimei were of the offense Exceptions and charged. therefore guilty defendant decisions taken several on behalf items certain court, objection trial admitting New York Criminal material, which is conceded were testimony, without which is claimed could appellant conviction First, others, not have been obtained. among counsel for the that the defendant prosecution proved examined as a witness committee of the Senate of state, other appointed the- investigate among things, methods of the Broadway Railway Company obtaining consent, thereto, also the action in respect Board of Aldermen of said or of city, granted, member thereof who same, voted and that he upon that occasion which the learned gave counsel testimony claimed to be prosecution irrefutable evidence of his participation commission crime.” complicity This offered testimony prosecution evidence.

conceded he prosecution time testified the defendant was before that under committee the operation of a committee, compulsion issued subpoena duly he was in testimony gave response questions in their behalf. Its admission on trial propounded to on the that it was objected under ground privileged given attend, circumstances; that the defendant was compelled and that evidence thus elicited was not testify; competent trial under where the subject inquiry is that about which he was then interrogated.”

The before the defendant whether the jury had committed crime of as in the indictment bribery alleged and as offense is declared section of the Penal 78 Code, under which the indictment was found. This section VIII, forms of title which relates to crimes part public against title, of and I. of chapter and justice, concerning bribery It is preceded other corruption. provisions concerning officer; 44, of 66, as section an executive section of bribery, of -71, members of section a officer legislature; judicial 72, ; 74, section such officer a bribe section of' accepting these, and all as juror; well as provisions embracing 78, that, section section 79 A declares offending (1) person section of this Code against any provision any foregoing is a witness another against competent bribery, relating and be attend compelled and may so offending, person trial, or proceeding, investigation any hearing, testify “ But,” other manner as it any person. (2) In same “ declares, so shall not be used the testimony given any criminal, or civil or against proceeding, prosecution A so testifying so testifying.” (3) person giv- shall not thereafter accepted, of bribe has been ing indictment, for that punishment liable to be prosecution and ac- testimony bribery, plead prove giving in bar of such an indictment prosecution. cordingly, of the Penal section subsequent (section Code) By as not to forbid such are so modified evi- these provisions the witness upon any dence proved charge being against examination. committed perjury is appeal

The first question upon meaning the statute contained in this section 79). spirit (section it the disclosures made contends appellant Committee, him were could privileged, before Senate review, now him on the trial under not be used against that this concedes one of the learned counsel people statute, if it were attributed wholly force if the it evi- not), valid enactment he contends was (as free the committee had not been dence entirely given These (as he contends was.) propositions voluntary lie at the controversy. bottom Is The learned counsel the enactment valid? 1st. “ contrast constitutional provision, per- people witness, criminal case to be

son shall be compelled I, with the 6), section compulsory himself (Art. one pronounces words section already quoted, other,” and as we understand the direct opposite is abso- that the exemption constitutional the argument, to lock up the witness and complete, lute permitting heart, the evidence in own secret does permit all; him at this is infringed be taken from right 79; it is invalid. and that therefore provisions section York New Criminal is, think, I that the answer this same sec- proposition tion declares not that the the wit- only testimony given by shall not ness be used in. crim- any prosecution proceeding, civil, inal him, fact of but that the so against very testify- in pleaded bar of an indictment ing prosecution of a bribe which been giving accepted. has It should be borne in mind that the in- the sole object troduction of the was to from it defendant’s testimony prove bribe, which, he was as the evidence- guilty giving show, tended to and the of which Fullgraff accepted, giving was the sole accusation the defendant. If then the- against section, case is within the terms of the this point be, assumed to offered immunity distinguishes inhibition, from the constitutional inas- statutory provision much as it indemnifies or the witness protects against of his To that effect is the decision consequences testimony. of the Court of ex the case of rel. Appeals Hackley Y., N. 74). had under review an Kelly The court there (24 order the relator re- adjudging contempt Hackley guilty to answer before the similar fusing quite jury questions grand in substance to those the Senate Com- propounded Sharp by mittee. The examination was cer- under complaint tain Aldermen of the Common Council of the members of New York for under the city of money, receiving gift their should influenced agreement thereby votes matter before them their official pending capacity, witness, made as a to the asked as Hackley, disposition H., him of a from one said certain of bills received pile $50,000. amount tó com- asserted his privilege Hackley Constitution, mon law and demurred under the con- him The Court of Sessions question. adjudged guilty him to be answer, tempt impris- and ordered refusing Court oned. and the The order Court affirmedthe Supreme affirmed the decision. Appeals principal law- discussed could the relator court was whether and in refuse to answer the fully reaching interrogatory, conclusion the court chapter examined the provisions “ entitled, An Act to amend the 1853, existing- of the Laws 446 of the Laws of and also chapter law bribery,” relating acts, York. Both of New 1857, the charter of the city amending them, and it is shall refer We again relate bribery. act that each contains pro- in this connection to say

sufficient witnesses, attendance and the testimony visions compelling use of their full the testimony protection against but provides criminal, so- civil against in any proceeding, of these was said provisions object testifying. of a to avail itself testimony parti-

enable public and to in the offense enable either concerned party cipator examined the Grand. to be as witness commission by entrusted officer Jury prosecution, public the Con- was not court held that the relator privileged by stitution, statute inasmuch as he was protected by against his trial. of such on own use testimony also that the

The learned counsel for the people argues far afforded section does not protection go statutory witness that the it offers to the accused indemnity enough; that while it him from and not save partial complete; evidence, his it does not pre- penitentiary, excluding This vent of its exposure. infamy disgrace argument is also met in the case opinion Hackley (supra), there not relator he was wholly pro- argued : that tected his disclose facts and circum- testimony might stances, ascertained, thus be proved being him than But other his sworn evidence. testimony case, answer of the court not covered only supposed remain would still objection disgrace exposure “ n That,” court, the evidence was used. said although condition, “is the misfortune of his and not want of Desk) witness,” If the law.” said humanity Judge Y., that an N. to a ground (24 83), objects substance, himself, answer would criminate he must allege, trial, answer, if his own his admission on repeated offense,” would tend to him of a criminal adding, prove guilty “ If on a the case of it is so situated that a prosecu- repetition York Criminal Hew him is tion as where is forbidden impossible, against by statute, I have seen no which holds or inti- authority positive that the witness is mates conclusion privileged.” n court was that the relator was not from exempt testifying, from rendered, .and it follows the decision then that the pro- vision of the Code which embodies same conditions as consideration, then under those no sense repugnant the Constitution. will, 2d. Was the of his own testimony Sharp given

n compulsion? would, concedes, He as the have prosecution himself, if as a witness on his trial testified he had ; did .sworn as he committee he was not sworn him his trial and tins fact left they "upon say operation n ofthe commonlaw rule, where his admissions made elsewhere and in another were to be place other proved by sought To reach this witnesses. conclusion is argued great n earnestness one of the learned counsel for the that people, “the of the Senate and. resolution of the com- inquisition mittee were void illegal proceedings, having signifi- “ cance or force in the To contin- law.” say,” judgment “ counsel, ues the that Mr. was witness Sharp implies court or authorized to the oath and administer magistrate “ evidence,” claim under no is that Sharp law be this to take compulsion present inquisition, oath, .an or to In the of the learned counsel view testify.” “ him, and as characterized prosecution sittings of the committee were merely persons, private meetings “ were,” whom was Mr. con- There he says, among Sharp.” ” versational which he questions answers (Sharp) him,” “took addressed part by answering interrogations ” follows, contention of the learned counsel “ statements on that Sharp’s occasion be used any pro- true, which he is If the were ceeding premises party.” constructions cases follow. But if ordinary they correct, are courts below seem have misconceived the situation in which cannot find in we Sharp placed, record voluminous before us any. suggestion of, had not full to take and to power cognizance Senate inquire into the abuses of alleged public through committee officers,nor corruption public power pro case, in the in view the present neces possible ceedings having law, in the alteration not in were sity existing every valid and Nor are we left to this evi respect legal. negative dence that such raised the trial. It ap pears concession there made already quoted, made the introduction of tes objection being Sharp’s on the that his statements before the commit timony ground tee were made under and privileged, compulsion subpoena the constraint of an oath administered the commit by duly tee who confined his evidence as the com questions ask, mittee chose to made admission prosecution out, set but the resolution under which the already requires committee assumed to act to be in evidence be con put nected with done, That admission. being prosecution went into acts of to showthat he waived Sharp, it, his before the committee in no privilege asserting manner the due of the committee questioning appointment nor its In of these facts it too powers. view late to raise Moreover, here. the decision in the case of the Y., ex McDonald v. Keeler N. rel. 3 N. Y. (99 Crim. establishes, concerned, far Rep. so as this courtis 348), that the Senate had constitutional the resolu power pass tion, that its committee was it into authorized effect. carry In that case fraud and appeared charges irregularity had been made and otherwise public press York, Commissioners Public Works* the of New city the Senate resolution committee directed its “to investi ” that to send for gate department, persons power the result its and its recom papers report investigation mendations The relator same to Senate. concerning testified, was summoned and appeared, refusing answer was, certain on the of the committee questions, report committed the Senate for habeas corpus, contempt. Upon questions as to the to order constitutional the Senate power York Hew Criminal were of its and the proceedings legality

the investigation and affirmed. distinctly presented now the learned counsel people on which

The case S., 103 U. 176), Thompson, (Kilbourn places argument commented of the prisoner, upon by cited in fully favor The action court, and have application. shown case, a cred substance reviewed Congress a transaction closed bill, itor’s or effort impeach already and one of States its debtors. the United between it, held Con of the United States that as to Court Supreme exceeded its had no power, authority judicial gress The McDonald case on the investigation. the attempted which was reviewed proceeding necessary ap contrary, functions and its Legislature to enable perform propriate that it held to be no objection partook degree it was in.some That character. case brought up proceedings judicial were at the all like the resolutions which substantial points, case, before the Senate Committee in this bottom the inquiry makes further discussion of their and its decision validity It follows that the before the unnecessary. investigation quite nor committee was not were the resolutions beyond powers, void, acted nor without under which they legal significance it force. therefore cannot be said that the committee or As the witness and his was without compel power require reasons, must find if the. elsewhere testimony, respondent are of the there support proposition any, it is witness. To end further said was by willing not behalf his Sharp by privilege people asserting committee, But waived it. if the case comes within act, of section 79 of that the Senate the purview Qsupra) and the resolution of the Senate were subpoena compulsory, it witness and was not for the of the necessary protection defiance, that he should either word set either at deed or by refuse to or or refuse to summons answer obey questions law to committee. It is if was he enough obliged in order answer the he could not be inquiry, required, afforded, to indemnity through same law gain go which.the y. Shabp. which, made, of an however the formality objection protest In be useless. case the witness would Hacldey (supra) avail, did his but was no because he was plead privilege, to answer the and the law law was held obliged inquiries sufficient, the case was one within imperative although Constitution, law terms of the because the same the very he was of his admissions. protected consequences Whether lie he was silent asserted his whether privilege, laws, and submissive to the could The make difference. interest, reasons of

Legislature, required discovery public the whole truth as to matters in their involved inquiry, one cannot be with their command answering compliance deemed a within meaning willing consenting person maxim, “volenti which nonfit respondent injuria,” relies. A who of obedience from the yields necessity cannot be said to own choice have the his power acting And where the attend and law he shall be says compelled shall be election compelled not testify, acquiescence ishe said, one whom it can he receives no injury from that to which he willingly agrees knowingly consents. There can be there is neither no volition where to refuse power nor to elect. Under such cir- opportunity cumstances the witness must deemed to speak of his safety person, and in view indemnity law promises. because, A man is none the less robbed yielding resistance, irresistible power, he and a witness makes no who law, gives up secret at much the command of is as under compulsion as if he on the ventured punishment would follow on his it. In the disclose refusing Hackley case there was the plea of availed privilege, nothing because the law required answer. position witness was in no In respect changed by plea.

Keeler case (supra) answer there was refusal to under advice counsel, but to It seems us availed nothing.

the evidence of under before the Sharp committee given penalty commitment and for contempt, imprisonment and that it him was obtained from consequently compulsion. ¡New

580 York Criminal would, moreover, To to the committee or refuse attend testify misdemeanor, 68, of a rendered witness guilty have §§ far, assumed the case to be within Penal Code. So we have of section of the Penal Code ('supra), provisions on the we now to the contention come part people that the does not embrace such section (79) investigation, to limited to such but on the is be as contrary testimony only trial, be hearing, proceeding investigation might given in of a criminal and that it has the course prosecution, in to as be such application testimony given might course legislative investigations. proceedings the Senate held v. Keeler might (supra) own in the collection of such inform- its proceed way in the ation as seem important proper discharge might functions; to it deemed whenever was necessary witnesses, do to so examine authority power to a committee such be referred powers might properly ease, and that not- in the to be expedient appear necessary courts, in the cer- of judicial power withstanding vesting to the Legislature tain their nature judicial, belong powers, authorized take to a committee and might delegated a refusal witnesses, and that and summon testimony committee, or to produce such appear testify It was of the House. would books or be contempt papers, officerswere ordered institutions or held that when also public an investi- such it is to be investigated, presumed action regard with a to some view legislative gation moreover, the resolution the terms of them, directing intent. re- looked to ascertain legislative bemay were Sharp passed led to the examination solutions a reference were 1886. They preceded January and statutes Constitution relating the provisions of. road without railroads,-and the prohibition against street control local authorities thereto having consent to construct which was proposed street that consent road,” reference charges fraud and obtained through railroad upon Broadway, of such authori- and influence bribery and corrupt through "by York, and hTew of Aldermen of ties,” city viz: in that sentiment city and that a reputable recital strong Senate, an at the hands of investigation demands It was for these reasons such consent.” in methods obtaining autho- that its railroad committee be the Senate by resolved all matters to the methods relating fully rized investigate Railroad or of other Surface Company, any Broadway to, in con- or relating obtaining corporation the action of the Board of sent, and also to investigate fully same, of said Aldermen city, granted gave thereto, member thereof who voted for or of respect same,in thereto.” respect committee were full such in-

The given power prosecute such directions as to all vestigation thought necessary, to the matters said consent the in- relating granting thereto, which led ducements with full to send for power counsel other papers, assist- persons employ them, in the work before ants Sergeant-at-Arms committee, to attend the directed serve sub- sittings and do such other as it directed. A poenas, things report recommendations, as to required, particularly an amendment Constitution, policy vesting such consent in some other than power grant as authority from their present provided. terms that apparent resolutions Avhich the examination permitted in- Sharp, which the had volved inquiry Legislature make right and which view of the recitals the resolution it was its make, in order that the abuses duty which were disclosed be cured further action by Legislature The nature, in its inquiry judicial was to be people. pursued lawful end and for a means and sufficient comprehensive as could be provided. occasion and the action of the Leg- meet every islature the court in suggestion the caselast cited as to expression intent and legislative the imposition obedience all duty who should be persons make, summoned their testimony, serve investigation ¡New ¡Reports. York Criminal the ends of We have seen that there is no public justice. conflict between the will as expressed Legislature Constitution, section and we are now to construe that section accordance with the In intent. legislative intention, full effect is to be to that exposition giving if full word, force and to that possible so validity every be annulled or rendered It cannot be part nugatory. doubted that the case is within the brought literally language of the section awas (79, supra). Sharp person offending one of the in relation of the Code against specific provisions accused, to He was and has bribery. been convicted giving a bribe. He was therefore under that section qualified (79), “ as a witness.” ? competent whom Against Why, against “ is, another- so that offend- person- another offending,” person “ of those ing any the Code against provisions relating to He was fact a witness the committee bribery.” relation to ? Was he witness another bribery. person against The resolution recites as the immediate cause of the action Senate, of certain “local authorities alleged bribery and then to make the accusation consenting railway,” “ toas referred the local specific person, says, authority,” “ to, consented, as the Aldermen authority said There was then another city.” Sharp person offending. the statute made a witness as to the sub- as competent matter him. The be ject against may presumed Legislature to know that such a law made compe- person, although tent as a witness then would even other against person, all, crime, if at and therefore and to his own testify, voluntarily all, would not be make at and so not only likely they testify ” “ “ witness, add, him a but competent (he) course, attend and compelled give testify,” meaning, evidence, rate the other any against person, including us, If, other the transaction. in the case before party “ bribe, then he is the offending” giver ?Where the bribe. compelled the receiver testify against trial, Why, upon any any proceeding, upon hearing, any adhere if we follows investigation.” of these words and natural apply meaning ordinary hand, find neither inconsistency case in we shall them to the The Senate was adaptation. nor complete incongruity, Aldermen of the with the made charge dealing n city, certain their consent was obtained through others, admitted that inves- methods, among bribery; demanded; therefore Senate those methods tigation n authorizedits committee all matters investigate” fully methods, and also to fully only to these investigate relating Board ofAldermen which action the granted gave Board, with full member of the (cid:127)consent, that of but also any “ in its any and to prosecute investigations authority power to a full and in and all directions its necessary judgment as to to to the Senate all matters relating complete report and the and inducements of such consent influences granting thereto,” and and to the committee full which led gave power to hold send for and its sessions authority persons papers, in and there. New York conduct its Clearly “investigations” of section there is to be an in language investigation, officer, of a with an intent to charge bribery public him exercise of committee influence in the his powers. and

were to ascertain persons papers, through testifying or ill was well founded. Whoever whether charge gave n them an attended “investigation” testified, we and limit the and unless confine meaning greatly it is the words used usually express, which Legislature that the is not within the statute. case say impossible claimed, however, for the the learned counsel people, is “ did mind of the that the Legislature investigation” and con- itself an directed include investigation committee, its investigation” ducted but only through that con- and upon course of criminal prosecution, It is below was struction the of the court put. judgment the court to restrain operation doubt the duty its than words import, (cid:127)of a narrower limits statute within literal to them their "meaning, if is satisfied giving Legis- which cases statute would be extended the' York New Criminal ¡ature intended to include. can never But this only done found, where reason for some limitation in. is either used, occasion which or in That are the context. they is not the case In here. the first the construction con place tended for in behalf of the contrary people plain used. ordinary the words meaning Any investiga ” tion would all include in the conduct of investigations persons be called witnesses by authority under oath testify matter. it must Therefore concerning any include, if taken the action literally, commit legislative tee it, the direction according given acting witnesses, attendance, their authority enforce subpoena and examine them oath. Nor is answer to this any conclusion to in say judicial investigation only tended. If we are in the views expressed, above right Legislature committee, possessed, to its might delegate any action, short of final power judicial which they thought case, necessary particular investiga although tion only collection of information required the proper performance own func Legislature tions, it nevertheless, wit be a requiring proceeding nesses and is, power their It attendance. more compel over, assumed and claimed the prosecution the priv of a ilege witness to be from a disclosure exempt compulsory of his own criminal conduct, the same in is examina tion as so, when sworn in court. If affords sufficient reason for a legislative including investigation among in which otherwise proceedings persons privileged, should be compelled Public often testify. policy might require disclosure, fullest and the case before the very Legislature was an instance in de which policy might feated, if the utmost and latitude was not permitted greatest freedom of examination to ascertain the truth of the public that a been charge and franchise had valuable great obtained of of through corruption public bribery ficials. In re Wisc.,630), it that in pur Falsey appeared (7 suance of Wisconsin, un- resolution the legislature 585 v. Shabf. for its us, investigation object having that before like been to have per- frauds, acts charged and corrupt bribery certain lands? grant Legislature inducing petrated on the part bribery of cases alleged the investigation grant? and others officials procuring railroad certain con- to those similar with powers was appointed a committee was sub- us. One before Falsey the resolution ferred by answer, and on. committee, but refused to before poenaed claim no that he could priv- it was habeas corpus adjudged because the to answer was and his refusal contempt, ilege, and. examined that no so that state law of provided held to should he a committee so appointed, testifying or be any penalty court subjected justice, answer any fact act he should be touching forfeiture any held that this furnished language testify. required to the offense No such a full provision relating protection. to 1869 statute of this state found prior any bribery 742, but the on the Laws subject 1869), legislation

(ch. time, time to until consolidated from enlarged extended of the Revised Laws Code. (VoL in the Penal provisions 191, made of the Revised Statutes 2, sec. were part 3) p. 4, I, 2, 9,§ St., 2, 4., Art. t. ch. p. 682), Yol. pt.

(Rev. officers, of certain any related to the State bribery judges of the same- of record officers. Section court judicial either of these- of a bribe related article acceptance officers; of bribes section related the acceptance referees, and section eleven persons- arbitrators jurors, them. should bribe who by gifts corrupt act

In 1853 ch. 217. amending 14), by (Laws § cited, a was- York, of New and above charter penalty city the Common Council or member of imposed bribing and it other officers of was provided corporation, in that should be competent person every offending respect trans- in the same witness other against any person offending and evidence action and give might compelled appear manner as in the same or in court before any jury grand any so other “the but declared that testimony given. persons, York New Ceimikal should notbe used in any prosecution, criminal, civil or against In person so the same testifying.” 1853, year (Laws ch. of 539) Revised provisions Statutes (ante) were to; .amended and added other officials were enumerated as of and them subjects bribery, among any member of the Common or of Council corporation any city,” any person of either of provisions against offending preceding sections, to be a was declared competent witness against any other so person offending, compelled appear or any or give magistrate grand jury, court, same manner as in the other but it any persons, pro- so should testimony given vided be used in any criminal, civil or or proceeding, against the prosecution person so testifying.” is confined

The act of 1857 supra) New city § York, bribes offered or relates only members' given or officers of the its common council corporation, makes every provisions that section offending against any person other witness any competent person against offending transaction, and closes with absolution same or saving 1853. to that of the Act of clause similar last cited. 1869, ch an act was framed In 1869 for 742) more (Laws punishment effectual author- suppression bribery.” actions favor ized certain parties injured, section “ No n shall be as follows: excused from testi- provided for or trial on examination offense any specified .fying any n this authorized act, act, the trial of action or this or any committee any on or Legislature, any investigation by n either n thereof, conduct of thereof, into the house member any libel, civil action slander or on trial any any libel, where such (cid:127)criminal action slander or libel alleged act, offense mentioned in or on imputes any bribery, or examination any charge trial committed perjury, trial or in evidence given upon investigation, will tend to him or that his render testimony disgrace ground him of infamous, tend to convict or will criminal of- him fense, him liable be proceeded or render therefor. trial or in- on witness such such But testimony given of the trial any him on not used shall against vestigation herein And criminal, him. action, nothing or civil in any as testify any shall be constructed compelling person is in charged or trial proceeding crime.” and the parts in mind the protecting compulsory

Keeping 677, statutes, ch. to the statute we come foregoing which, least far at Code, and so a Penal which establishes concerned, codi- is part bribery crime proof far as the various pro- So fication enactments. of preceding witness visions these acts make the offender competent n in sec- are formulated him from prosecution, relieve they It is 79). Code ap- tion quoted seventy-nine, already (Penal that the legislation from this parent history progressive as word of mere treated word cannot be “investigation” words, but broaden sense of preceding amplification on the an intent must be deemed the deliberate expression in a distinct class part bring Legislature cases.

Can doubt as to the there be Legislature meaning any In statutes? clause of the corresponding preceding n of1853 217), party give (ch. requiring court,” of the same or any chapter '“any jury grand court,” or or in “before year, magistrate, jury any any grand trial,” or in the act of 1869 on examination (supra), any committee any investigation Legislature, thereof, into member either house the conduct of any than pre- thereof.” Each statute further successive goes an examination before one magistrate, ceding; including it, to examinations .another both confined including obviously in the course criminal but the last bring- procedure; (1869) for a in a new that of investigation ing species, legislative and of certain described class. certain end than the conduct

But other those investigations relating ordered entered of its members were frequently committee, in to be made pursu- the Legislature through we see which, from witnesses was testimony required, ing 588 New York Criminal to doubt that

no reason the intended the Legislature pro- cases, all visions of such as those cover as well formerly § for, when involve into provided matters they inquiry as defined sections of the various the relating bribery the Penal Code to. above referred of that The plain object tribunals, statute was to enable these various whether magis- trates, courts to make juries, their grand Legislature, into effectual, abuses and enable them investigations alleged their to that end and prosecute inquiries successfully, pro- tect withheld, witnesses whose be testimony otherwise but without which the No would fail. reason investigation has been to witnesses suggested confining protection other than those who appear legislative investigations, and not we are to the con- rule permitted by any applicable struction of statutes to the section give question as will limitation exclude them. It be could done only statute, inference into the words which the by importing did not choose to which a Legislature employ, express different from the words used. very This meaning actually “ at else,” we are not to do. What asks learned liberty “ is inference or Judge, interpreta- restraining varying by to a certain but extent the tion, remodelling recasting statute, words, or in other province invading ” J., Carlisle, itself ? in Garland v. Legislature (Williams, Fin., 4 Clk. & should not be 726). certainly permitted where the of the act under examination was to extend object cases, statutes to new policy existing enlarge not nor intention of restrain its where the application, words, chosen, Legislature expressed deliberately clearly does take them where literal construction not beyond case before mischief which aimed. The us is. were they words, statute, not within the within the only spirit and we unable to find doubt or are ambiguity of a should the defendant construc- language deprive tion the manifest the words according import actually used.

We not have overlooked contention of respondent Code, 69 of Penal 68 and that sections refusal making to attend or committee testify legislative of witness misdemeanor,” limits material and inquiry proper nor that a thereupon question which questions,” argument calls for a is nota answer” criminating “proper” to answer. But we and the witness think obliged to those that whatever effect sections given they operation cannot regarded excluding which deal with sections the offense 79) subsequent (78, minuteness for of bribery provide punish- The of its actual ment and the means attendance discovery. witness, and are for and it

of the the disclosure is provided an the that to make of upon clear investigation subject bribery there must be some of both. Within way effectual compelling those be asked sections,every which question may scope ” ” matter, and whether it or is is subject pertinent be the The statute the wit- not will relieves only question.

ness, in- and it will not be or necessary examining concern itself with the tribunal to effect upon vestigating so, of the him. If this were not the whole object Legislature or refusal witnesses to be obstructed might neglect of the answer the committee. obey subpoena questions the results which That those on the are put, investigation, us, is from the use now before were made pertinent, apparent thereto person of the answers prosecution If made are testified. the observations already then who them (cid:127)correct, it there was error follows receiving his objection. up

Second.—Another exception brings ruling Pottle, from one corrupt pro- as proving court The the time defendant 1883. witness posal by desired and the defendant of the assembly, clerk engrossing that before body, of a certain bill then pending alteration an 'of a rail- construction authorize its terms so he pay alteration proposed For this on Broadway. road find any |5,000. ground are unable We the witness introduced part was admissible. the evidence which of the affirmative case which the prosecution were bound to carry Its admission jury. is justified appeal various propositions presented by First. people. “We counsel, suppose,” the learned we say suppose every criminal trial with a begins presumption innocence favor of the accused. This must be presumption founded on the moral law, both, rectitude or fear whichever the person supposed possess. presumption must be conviction, overcome can be had. Jacob Sharp accused and trial brought Aldermen bribing York, of New City that means procuring grant a valuable Evidence was offered to right. show before he had to bribe long another official attempted act, do which, as he would thought, promote scheme had which he so This evidence long pursued. being proved no sense given beyond right no fear of law would deter from wrong, punishment, him offense the one committing bribery purpose * * had he in all his efforts.” view “The evidence to objected irresistible proved motive as strength all motives which him other have deterred and might which the of innocence is founded.” The upon presumption a in commission crime was in by Sharp distinctly but a issue. It subject mem bribery, Fullgraff, Of Council. the Common commission of ber that be law innocent. If had presumed Sharp crime Sharp character the evidence of prosecution have good might given that his bad, character was answered that evidence by proof it been I not thought by judicial has tribunal believe be anticipation could that such evidence given proof it defendant, than an issue could be ten upon nor from the White, W., ; 14 111 dered the prosecution. People by Cush., 295; 5 Case, De Ohio, Witt v. Greenfield, 5 Webster’s 418; Dana, 227; Burrall on Circumstantial Commonwealthv. Hopkins, I ., But the case have 533. even supposed Ev and be reputation only, such evidence would general is shown. The effect which acts reputation particular York Hew CimnxAL a shows is, evidence that people argument is, a criminal crime, that disposition. to commit the

disposition A man’s inadmissible. view, If it a different is equally is an in- so bad as permit character general may perhaps him the same meaning, ference that evil have good he accom- that it a matter of indifference is however, a In plished proceeding, purpose. judicial irrelevant, show in of that although would be proof might the crime commit moral that he would be likely sense with which he was person charged charged. acts

well proof particular seek to repel imputation life, and cause of his him at other performed by periods to turn made prepon- submitted to jury conduct, bad of antecedent derance of on one side proof, acts. speaking on the other of virtuous proof Legally from either. a conclusion would be unsafe to draw trial of We no are referred to case holding crime committed indictment specific charging accused of a that the specific particular evidence way, Moreover, sides counsel both character would be relevant. admis- of one crime is not

seem to that the commission agree sible in of the same offender another evidence on the trial can be law crime. indeed evidence is elementary the issue admitted which does not tend to prove joined, than in criminal reason and much stronger are necessity civil of this rule cases for the confining observance all The indictment is evidence the issue. strictly There- to answer. defendant come prepared expected fore, of another extraneous introduction and do crime is defendant surprise calculated take the him a his prejudice against manifest injustice creating by out of this case to be taken then is general character. How in this law The learned submitting rule of ? general judge “ as case, the Pottle evidence desired the to consider jury ” exhibited, and the defendant only the zeal which showing not testimony allow to be themselves prejudiced “ con- to be bribe, regard to the offer of only saying, People y, Sharp. like other case,

sidered as showing, the extent “ desire,” of the defendant’s interest and feeling, I adding, if the fact be that Pottle should testified to sorry the offer of n bribe, be otherwise should considered. So far itas tends throw dark shadow character of upon the defend- ant, I eliminate it from desire you your consideration and treat it as' evidence merely interest, show tending depth and desire.” These motive remarks not only answer the but to the respondent’s point argument, danger from the evidence. follow were They obviously inadequate does it. Nor the discrimination prevent between crime conversation, make the evidence less proven objection- As able. was presented crime jury distinctly com- that, mitted. The and it inquiry point so plainly counsel He avowed people. brought witness Pottle him Sharp proved that he together; ” “ then had the General Surface Railroad Act his posses- clerk; that he sion as had a conversation engrossing with “ ”; to the bill in relation he had a Sharp conversation “ him on the bill with subject including includ- ” asked, in the as one streets bill. ing Then Broadway “ him Had conversation to whether he did you any did to have (cid:127)or not desire included as one of the Broadway ” The in the bill. defendant’s counsel .streets objected, taken, overruled exception objection ” “ “ I did. He was then witness asked to replied, state all ” and the he said counsel for the subject, de- (Sharp) “ to fendant asked informed what point evidence is ” directed, is a to be there particular this saying, purpose and I we think advised might properly what it question" ” said, is. After some discussion district attorney I defendant; intend to that Pottle was sent for prove room; that he to defendant’s that this defendant went there- $5,000 Mr. Pottle sum to add offered one of the words sections of bill and Fifth Broadway Avenue; horse to be con- permitting railway company streets; that Pottle structed those declined the pro- York Hew Criminal the same sum case he then offered and that Sharp

position bill; I that is what desire him the would original give “ said, we object counsel ”; defendant’s whereupon prove an distinct that it is evidence utterly it ground ” whole, said, my The court Upon of crime. charge ” is admissible. the evidence that judgment Pottle of the evidence given by examination careful A “ it counsel of the appellant’s the comment authorizes conversation, it but was the was not part ” an admissible as proving attempt Unless whole. immaterial, and as proof is wholly a crime commit been and must have very pre- irrelevant a crime was a or will- It showed capacity to the defendant. judicial an act to induce from to commit bribery ingness as one the construc- be benefited desiring which Sharp might no road, in fact him which advantage tion of the but gave franchise; him no but it could over other citizens. gave that in from such 1884 he did be inferred premises fairly in- a for a different also bribe different person purpose. The mental would be ability

ference purely conjectural. sort, to commit a of the defendant crime of this disposition raises no while it jury, presumption might persuade legal not moral even. The fact under It is evidence investigation circumstances, unlike fact in its disclosed entirely no between Yet in- the witness. There is them. analogy drawn officer ference permitted by prosecuting court, left it for the desire say jury Sharp instance, manifested the offer of bribe one was the of a led to the actual bribe in same desire-which giving other, had that the two crimes the same hence Evi- origin. admitted to of moral character is the existence disprove

dence motive, it, or to rebut evidence of of a criminal in an can of a crime have place legitimate investigation prior crime was committed same as whether subsequent had in it had fact If been Sharp proven given person. was as to and the money Fullgraff, being act, he had

innocent or criminal make right gift y. fact, fact, that he he made if it were the corruptly, to obtain a to show similar end seem sought by bribery, might the intent the with which done. But here the act was charged that in was whether he very dispute thing money, gave a former and he had offered different occasion money with a could not to another guilty purpose fairly person, Moreover, held as it had been relevant to that question. conceded he to secure the defendant that desired distinctly Railroad, the franchise for and therefore Surface Broadway evidence of for mere commissionof crime purpose desire, and we re- showing wholly unnecessary, J., here the the Coleman peat case Allen, language Y.,N. “It was idle (55 similar 81), upon question: avowed, frivolous to while evidence for the put purpose its influence could not be otherwise than damaging trial, It prisoner.” near the put beginning then made have continued impression must jury and in their if it did not distort minds colored and deepened a dark shadow evidence. It did indeed cast subsequent character; defendant’s it not tended very only it was the defendant absolute strongly prove proof* guilty, but it was of a It was differetit from that crime charged. offered and main and was received on the issue directly him. Such evidence is great force persuasive condemned draw the minds uniformly as away tending from their the real verdict jurors sought on which point excite, was, and to them. we mislead prejudice think* received, well to its admission improperly exception taken. error

Third.—We are also that there opinion examination of alderman witness Miller. He was time of not find resolution, do we passage he awas passage. party any agreement concerning allowed he was Against the defendant objection ” “ received he after testify consent was given asked, $5,000. from then The district DeLacy attorney York Criminal New not, understood, received you did You you Sur- the Broadway account of from DeLacy money “ No, sir, of the kind.” nothing Railroad?” Answer:

face and the to the circumstances A further examination followed, DeLacy and the witness said: of its time receipt bills, and there is buy said something a roll of me gave the district attorney, Asked by tickets with.” election on time, it was at the paid not understand “Did you ”? An- Railroad Company account Broadway ' sir; kind with “No, of that I had no understanding swered: at the Question: understanding him.” “What was your ” not ob- there was specific time ? To this question only asked was incompetent that the evidence jection for a that it con- the further was asking Sharp, objection defendant excepted. clusion. The court allowed it it was no about so “There Answer: particular understanding it.” said about far as I There was was concerned. nothing “ Question: think, time, it did What at DeLacy gave you : The court Witness for?” held you competent. ” “ “ think ? That is the What did I District Attorney: question ” “ ? : About what District asked Answer: Attorney you,” ” ? : it to for Answer Well “As what DeLacy you gave “ Tell had District us I what Attorney: my misgivings.” think, time, did it to for ?” I what he you gave you it road.” It is was Broadway quite impossible suppose find taken can which the be over- any ground exception The transaction not with The come. was Sharp. question fact, for no iteration for an called but with opinion, frequent Its the estimation importance people supposition. to obtain is manifest from the repeated persistent attempts The was it. court below were of ruling opinion erroneous, but that the not effect could have given any jury whatever mere opinion, supposition expression witness, between because the whole transaction DeLacy was, It but the nar- and the witness was afterwards given. also and was excepted

ration was received under objection did The to. It not cure the question certainly difficulty. of the fruits of a was

be settled was whether money part an incident whether the transaction was corrupt agreement, which the defendant was the scheme with the formation of true, and whether fact of alleged bribery charged, this like other of fact to be settled evidence. The of the witness was opinion, thought, understanding however, reason that not The evidence. naturally jury might, all the facts within the conclusion of the witness drawn from and the his own the nature knowledge, fairly represented to which circumstance extent of the connection between the had he and the fraudulent preceded testified practice and material it. admitted relevant because thought court, and whether and the any, officer prosecuting cannot known. what, did or in affect jury, degree to the witness was sum money payment large him in his fact. Whether was capacity paid palpable of, the consent with, on account Alderman, or in connection Aldermen, could properly obtained from the Board the conjecture suspicion answered jury upon by cannot The we say. That it was not so answered witness. counsel, however, the District Attorney, argues respondent’s the answer was not that but that the was proper, witness and the between The interlocution responsive. there was misapprehension that seems to indicate prosecutor was the answer -witness,and the answer that on the part it. to and fitting directly called by question, after did his examination proving not stop counsel learned mental conclusion but of the money, sought receipt inducement of or gift, as to the consideration witness him. and the answer was by accepted case, and make out the to

Fourth.—The public prosecutor, chief, to show detective offered by in of his as evidence part the district attorney had been employed officer he and all of De Keenan Lacy, Moloney, serve subpoenas material com- to be claimed whom the district attorney the detective further that witnesses, show and to petent 59 Criminal Hew York find state, did but Moloney find them in unable and learned him with subpoena there Canada, served he did not see also, in Canada although were the others as co- in the indictment named were These persons them. adduced and the evidence already Sharp,

defendants them, Moloney, show that some especially tended intermediaries between offending against were persons or.instruments- to bribery, of the statutes the provisions relating act whoever committed charged. counsel, the defendant’s The evidence was objected that the but claimed prosecution admitted. It absence, defendant was their object privy inad- otherwise a basis for evidence was to furnish proof disclaimed in- missible. The district attorney learned as of these co-conspi- tention persons flight proving rators,” as their absence evidence and so use of make that the conduct accusation or an their admission guilt, true, but said he offered them the defendant was that after effort diligent only purpose showing witnesses, as he was their attendance unable to procure is, His thus him account their absence. claim enable of the direct were they proof conspi- depositories which the were racy prosecution establishing, engaged The evidence already defendant. accomplices was, concerned, circumstantial, so far Sharp altogether them, tended to named some of show that the persons were evidence bear- from actual qualified knowledge give more or issue. We less point ing directly upon very think the of their absence was inadmissible. issue, the

could no the have bearing upon legitimate will is that such great testimony prejudice danger very be, and It whom it is offered. frequently party may is the other which admissible in to evidence from side answer the would call for an But absence out explanation. naturally associate, or one seem- the of the court of an jurisdiction act is in the with the defendant connected charged, ingly and unless the occasion construed as evidence easily guilt, such, It it not be allowed. is an old" should calls proof trial,” the fault who avoids maxim that he confesses to the there is even but in this fugitive, great application, from man avoid the trial mo- of error. A many danger actuated, but however besides consciousness tives guilt, in a in no court reflect his conduct can justice degree in this case was Its admission another. virtually saying and it had is better evidence be from there might jury ; it is not the fault of defendant’s associates .the prosecu- that the is not before but because tion evidence you, with the defendant stand act of those who charged voluntary Thus the of the witnesses the offense.” non-production issue; with that made to is supply place proof had connection. The rule issue the evidence no is possible an issue on trial has in his that where proof party power, doubtful if would render material but facts produced certain, him if the law he omits to produce presumes against all to resolve doubts and authorizes adversely jury But rule cannot be unless defense. applied appears with- whether it witness is that the paper, proof, living that the offered in his It is to see here power. easy be used an ulterior although pressed purpose, might entertained and made effective prosecution, yet could no there presumption jury, certainly had wit- prosecution power produce any particular ness, named, did law re- not one of those nor certainly is, therefore, find it of them. quire impossible for, offer- reason or lawful to be purpose proof gained ed, and its admission awas innovation upon very dangerous issue. rule, to the which excludes it as irrelevant general Nor It was was it a mere as to the order proof. do evidence, introduced it could as affirmative and while must the defendant prosecution legal good, subject unfavorable inferences prejudices suggested innocent, could absence of a if co-defendant whose presence, refusal defendant, not but assist the absence whose as a confession. obey subpoena easily regarded Bepobts. Yobk Criminal Hew -of fail to in an could not strengthen appreciable guilt, case the case cited in the prosecution. only degree Smith, Y. Pease v. That 477). is (61 N. .support ruling witness was confined in a a civil action. The was absent consent, and his own whatever state bemay prison, made, it has no said of the decision there here application it than nor should extended to other circumstances those there disclosed. defendant the that the also said District is Attorney witness, of one cross-examination

upon prosecutor’s and that he had shown absence of one of these persons in Canada. fact as to all of them "was The same seems then have been assumed as if Why already jury. ? In insisted answer to from

was the evidence upon learned trial defendant would not whether the judge “ that, in to the have up, right argue jury summing all called view should have testimony, people said, No, sir, counsel How defendant’s Moloney,” n could that, we know from we when already opening argue ato district is not accessible attorney Moloney or that and disclaimed intention of so doing, ¡subpoena,” fairness,” earnestness could be done common with such that it is difficult to the introduction see very why than to if no other escape existed pressed purpose Proof even back imputation keeping testimony. But that inadmissible. the absence these persons absence,”but un- their not all. The was not only proof detective, a subpoena search service availing Under mandate. of them and the failure to .some obey in this of the court circumstances of the case the ruling of much instance not have been importance new trial. But principle alone we should not legal grant evidence, admits and material relevant requires other, serious charge however important, it un- be, the evil an accused however person may great aof covers, judicial cannot be made he subject properly ¡sentence crime is according unless the substantiated y. The other

established rules of evidence. referred exceptions of those rules to the manifest violations point prejudice of defendant, and of to the benefit those he is exceptions trial, entitled. new that it They require had may of the court below the conviction should judgment and a trial reversed new granted.

All concur. Beckham, J. It seemsto me the admission of the evidence the witness Pottle was error. given by

There is not room for much discussion in to the regard which evidence that general principle proves tends of other felonies or prove prisoner misde- guilty meanors is-admitted. It is on all conceded sides that admission of such forms an and a testimony exception, very- material to the rule important exception, of general evidence. The rule is that when a man is general put upon convicted, trial all, for one offense he is be if at by evidence alone, which shows that he of that offense is and that guilty under of circumstances ordinary one or proof guilt score of other offenses in his is lifetime excluded. wholly But for the of the offense for purpose showing which guilt is trial as also where that prisoner purpose, is impor- claimed, tant,of motive or intent with which an action showing committed, abe crime was evidence which is material upon admitted, show, such issues is also tend to although even of the accused of directly prove, guilt some other of misdemeanor. felony

Whether the evidence case comes within any particular the well known rule is exceptions often the general solve, difficult and not as to question what the rule itself is. Thus there is a class cases in really which evidence is- admitted where it is material to show guilty knowledge the character of the act committed A prisoner. good illustration of this class of is in cases the trial of an indict- ment for counterfeit Evidence of passing money. passage of like within a reasonable time money after the commission offense on trial is. prisoner Bew York Criminal he when passed

admitted purpose showing its char- was not through ignorance money he man think the money A passed good acter. might twice, but the once or even pre- be mistaken and he of the act of mistake repetition lessens every sumption Hence counterfeit. money really passing the issue before materially upon bears

repetition directly of an To this same class would the case the belong jury. an individual. For of for the

indictment shooting purpose not accidental a. that the was where such shooting proving claimed, of efforts even fact evidence is may given to shoot individual the defendant the same made by threats the Thus the of on occasions. probability shooting prior is lessened efforts threats prior accidental by showing being for on trial. the same act is prisoner accomplish or other embezzlement of obtaining Cases of money under the rule. come same pretenses false property general of A man indicted funds false en- embezzlement claim, with of tries some plausibility perhaps,, degree mistake, that the was but the of such mis- entry probability would be lessened that other false en- take by proof greatly kind made at of the same had been the same time tries about the same persons. there is of cases in which the facts- Then another class of two crimes and that individual show the commission also one for who committed other crime committed the is on which the trial. Evidence then prisoner is permitted that the who committed the show was person crime, under the because so circumstances and other doing crime, from with the other the connection prisoner of such other crime is direct evidence of guilt evidence he is on trial. of the crime for which his guilt admissible- nature is Another which evidence case motive it is where purpose showing proper - the main crime. commission admissible that the evidence was It is claimed this case the intent. that it or tended to showed show the ground Shakp. -602

on the to' part Fullgraff prisoner money paying him, had after been received that proof money given the motive of also that it tended show ground If for the commission the crime. this evidence prisoner n did tend to show either such intent materially directly motive, time, and if it were too remote in point if it main connected fact with the logically proved admissible, transaction, that it then it well be even it tended of another and prove prisoner guilty though offense. separate me, admission of Pottle seems to how-

n ever,to further and to a much more dan- carry principle than extent other come under case has gerous my n observation. the intent which the Upon money I the evidence think falls far short paid Fullgraff, and close connection therewith as is logical necessary that render admissible. The fact such established being was made and that connected with the was payment prisoner real .its intent could not a matter of be payment, (cid:127)doubt. That it as was to obtain the of vote paid Fullgraff an alderman sur- to the Broadway franchise granting railroad, face could not be made a of honest discus- subject sion. All the to that and there was ab- evidence was effect of no evidence to the and to offer evidence solutely contrary, the commission of another crime for the avowed purpose the intent with which this money paid "thereby showing case to made to mind a clear have would Fullgraff my another it on a it for colorable issue (cid:127)offering using be evi- inadmissible However may wholly purpose. of intent. dence not admissible on the even question Agnew in La State v. As is well Mr. Justice said very H., be remarked N. “it should also (57 295), page likely that this matter is quite being judgment see (cid:127)courts would not all and that courts some agree, ex But however connection others could not. where logical found that .be, treme the case I think it will be York Criminal Hew

n courtshave the admissibility professed put always connec- was some on the that there logical testimony ground other than the be crime proved tion between proposed manifested by tendency to commit one crime as tendency commit the other.” in in the Shulman reported case v. Earl, Judge as Y., 375), N. 364 at states note Mayor (80 v. People rule which must apply But one follows : there is general thus all must in the transaction There be sought cases. main with the relation to or connection some proved, motive or is, must common That show

transaction. they must be all the transactions they intent through running at the time (cid:127)such in to show knowledge their nature guilty n ofthe main Peo case And Mayor transaction.” indictment for of an case ple, obtaining supra, J., Rapallo, false speaking goods by pretenses, n nature n admissibility of this testimony said, their intent, falsity that when representations, false of the accused were they knowledge, n established that they testimony, allegation by competent proof were made with intent defraud may supported by n the com other than the accused with parties dealings by a fraudulent scheme to obtain which tend to show plainant him, devices similar to those practiced pro property by of time are connected vided the point sufficiently dealings to authorize inference character purchase of the same was made from complainant pursuance transaction.” general it does such rules

Under conditions guided by me Pottle was so con- not seem that this evidence transaction, of the al- with main nected the legitimately the of in to characterize any Fullgraff, way bribery leged to have been paid intent with which was money alleged in than the evidence tends show other sense Fullgraff, of commit the crime upon prisoner part capacity of a to commit one he had months before attempted because of ac- similar nature with another for the purpose another act. complishing broad,

It is a think a. general I very extremely which to claim the dangerous, o£ ground upon admissibility character, evidence of this tó tends show that say of so desirous a railroad on Broad- prisoner obtaining that he was to commit a for way crime of willing purpose his It seems to me this is securing object. more nothing an than to show that attempt of prisoner capable in crime the indictment committing alleged because he had been a before, to commit similar crime willing long another and for the of the com- place purpose accomplishing mission of another act different To SO' person. adopt broad in evidence ground purpose letting is, think, commission of another I crime a very dangerous- It tendency. tends to load necessarily directly prisoner down distinct separate crime charges past cannot be he is will be in supposed or con- proper dition to or meet and which tends to explain, necessarily very in him the minds gravely prejudice jury upon I do question not think that ev- guilt innocence. idence of the kind in in such case as is question, here tends to presented, enlighten legitimately jury of the intent with which months subject money paid many thereafter to another at a different to ac- person, place and It the commission another act. throws complish light that intent show moral as it tends to com- only capacity mit a It crime. under the circumstances too- entirely gives an for wide the conviction of an accused person opportunity instead of the actual com- by prejudice, showing is on mission the crime which the defendant trial. motive, word the sense

Upon using crime, aof reason should commit the X why prisoner do not see that it has the least It materiality bearing. It and tends to such reason. tends to- shows show no only show an in the inclusion of took interest prisoner laid in the bill railroad tracks to be Broadway permitting that he the streets of cities. therefore argued took had a desire a railroad that street. interest York

Hew Criminal a As reason motive such desire the evidence no as- tends us. act of pect By enlighten passage had no would have than one prisoner greater right any <elseto obtain the road. Others could for it as compete well a in which he was interested. Ho reason for corporation in this is interest shown this evidence. question and bald naked which the simple, evidence proposition viz., is claimed the interest of the and prove, prisoner, this interest is be established of the commission of a by proof detailed, crime under the circumstances and months before the commission the one in the indictment. This charged cannot be said to or tend to prove motive prove commission of the crime in within the question meaning law, desire, of mere interest or upon question too evidence is remote and too to be dangerous permitted.

One of the cases cited branch argument that ‘of Pierson Y., was N. There the (79 People, 424).

prisoner one who was charged Withey, murdering man. married The also married man. prisoner Evi relations, dence had been of intimate not neces given though criminal, between the sarily wife be prisoner Withey’s fore the death of the deceased. After the murder the pris oner took the widow and her sister to the house of a friend in the and caine with the widow evening late that away night alone. A few after the murder the days prisoner disappeared from the It was then neighborhood. witness proved by from who was a Michigan, clergyman, prisoner widow of him mar Withey were appeared ried, him declared on oath before prisoner he knew of obstacle to his woman with the legal marriage -and he married them. The evidence was thereupon objected to on the that it had no direct or material bearing ground case, the main tended in the and that simply of another him prejudice prisoner by proving guilty as to the murder was evidence separate felony. circumstantial, and this court held that the con foi motive troversy proper purpose proving People Shabp. v. showed a murder. In that the evidence direct and the case murder of the connection between the deceased and logical the showed that the its perpetration prisoner. prisoner deceased, had a for of the wife of the the passion possession and that for the of of her obtaining possession purpose per- did son he commit the crimes of and to perjury bigamy, this of the woman the off of the accomplish possession taking an woman’s husband was obvious The motive of necessity. woman, was the desire for the and the prisoner strength desire, of that in other of words the motive strength murder, was shown impelled way. of Parker’s Cr. The case v. Wood was- (8 Rep. 681) People That a Term case also cited. which arose Special who learned delivered the opinion application justice for conviction of stay proceedings upon had defendant murder. Evidence been given sepa- rate and distinct felonies committed prisoner motive purpose part showing killing1 learned court held that deceased. The evidence was admissible because it tended show other evidence,, transaction, the felonies were other in- parts single fluenced motive by single design accomplish single all connected were and. they object; unity plot and if to show would tend which” motive design, proved actuated the the life stated- prisoner taking in the indictment. In that case the evidence tended show that each act one for felonious necessary purpose- main which then out the existed the- carrying object mind of the and that all of them formed but one- prisoner, transaction and were connected of one- together parts whole. of no

Mow the evidence in the case at such char- bar been, At no had acter. the time occurrence law alleged It did not and could not that at that appear passed. appear law It was an time ever would be act remote in passed. time, different in and of an point purpose entirely separate matter, and distinct of one main transaction. part forming (cid:127) York New Criminal 607" standard for mind nowhere near coming my all the of such evidence cases pronounced admissibility to find. I which have been able Stout Cr. 432)

The case of Parker’s con Rep. (4 tains the same There was ad general principles. the was seen bed

mitted to the effect that with prisoner wife of the man was with the he murdering, charged although admitted, sister, and it such wife was also the was prisoner’s husband, for the to the prisoner motive furnishing get out the way. learned,

I have at to looked the other cases referred the find counsel the that come under prosecution they or the other of classes one designation re- already ferred to.

Commonwealth Tuckerman v. was a (10 Gray, 199) case embezzlement and evidence of other embezzlements from same a series of contained years party during in a statement made was admitted. prisoner Mass., (119

Commonwealthv. McCarthy was an 354) in- dictment for arson. To intent prove prisoner ev- idence was received that two occasions the prior prisoner set had fire to a shed ten feet distant from de- building therewith stroyed connected of stairs. This flight had direct to that was prove not ac- tendency firing cidental intentional and felonious. Mass.,

Commonwealth v. anwas (126 indict- 42) Bradford ment Evidence adultery. improper between familiarity woman, the defendant and the same before the act shortly was admitted. The admitted question evidence was on the that and these acts of with ground intimacy familiarity same woman had to establish the fact ofthe adult- tendency in the indictment. charged Evidence to show ery tending aets of indecent have a previous would familiarity tendency course, woman, case of same break- prove, down of all ing safe-guards self-respect modesty and hence a to lend of the woman herself gradual preparation to the commission crime. People

€08 The case of v. O'Sullivan Y., N. forms no (104 481) precedent admission of the evidence in this case. We held that the trial of the .simply upon defendant for the crime it rape that had competent he prove attempted -committhe same crime the same woman a short upon time thereto. prior put upon that ground upon trial of a for a crime particular always competent to show of his 'upon had he made an guilt time, remote, some .attempt too prior to commit the .same offense. It was said further that it would be incompe- tent to that the defendant had committed or prove attempted to commit a other woman. itAnd was stated rape upon any the trial of a for murder it is prisoner competent show he had made threats previous attempts victim, kill his and hence the same held principle that when it was rape show charged competent the defendant had declared his intention previously commit the offense or made an unsuccessful to do so. attempt

In Mass., the case of the Commonwealth Abbott v. (130 murder, an indictment for offered upon on the 472) proof ill former of the of the part husband prisoner feeling -deceasedtoward the deceased. It as too remote was rejected and disconnected with the crime charged. Particularly there was evidence terms parties living together good to the time of this ill This subsequent long alleged feeling. for admission evidence certainly precedent the case bar. question

In Commonwealth Mass., Jackson prisoner (132 16) indicted for false representations selling property by under the Massachusetts of other of sales statute. Evidence nature, of a like under other property representa- persons, false,was tions admitted for the proved showing purpose made. intent with which the were representations The Court ofMassachusetts held that the evidence was Supreme inadmissible, trial and that for a new the error of its admission should The case is cited granted. only purpose court opinion danger quoting ¡New York Criminal J., said that

kind evidence. opinion, writing Devests, n “ other defendant at other times as statements made the sold, false, have been while to other animals which he might in the not. The made case which he was tried were those formed no of a transactions scheme any- part single plan, than the of a thief. were en- more various robberies They tered on as from time to he time succeed entrapping if credulous Even were trans- they unwary persons. character,

actions of the same differed in all general they details, their and the defendant was defend him- compelled self distinct three in addition to the one charges which alone he was indicted. of the commissionof Evidence other crimes a defendant him with may deeply prejudice while it does not bear his case. jury, legally would not be in order certainly to show the intent competent with which one entered a house or took an article of personal he had committed property prove burglary larceny at another time.” He further said in the same case: The objections admission evidence as to other trans- actions, whether not, indictable crimes or amounting are Such very apparent. compels defendant to meet of which the indictment him no information, charges gives defense, confuses him in his issues, raises variety thus diverts the attention of the from the one immed- jury it, iately defendant to showing have been a knave on other occasions creates a prejudice cause to be injustice done him.” I think the remarks are in this case. very pertinent herein leads reasoning the exclusion of evidence toas offenses such past as Pottle’s evidence tends to prove, whether it is directed towards prov- the of clerks ing bribery to committees of members 1883 1884. Legislature it the same basis

Upon difficult to see the materiality evidence admissibility after the prisoner, pas- of the act $50,000, sage paid as testi- Phelps fied to The evidence it can by Phelps. be seen had a tend- ency greatly prisoner prejudice issue of his inadmissible for while wholly Fullgraff, bribing

guilt seem to be and would quite questionable such purpose, interest Broadway admit for the purpose proving br could be and was there dispute railroad about which attention without We call contradiction. it. deciding absolutely have been committed

We clear that errors are quite well this case war evidence the admission all who That law law on must. protect settled subject. who invokes come within its whether sphere, sorely weight seems protection pressed alter, for in the or not. It cannot case inculpatory of one who conviction purpose securing criminal be invoked called or yet as great regarded man. In the an innocent eye purpose sheltering until in accordance with the law all are innocent convicted a close adherence its rules. forms of law and as well as all For the reasons above grounds given, well in the learned so stated opinion my brother Dan- in favor of this conviction I am reversing grant forth, trial. new ing p. report ante, Term note of this case at

Note. See G-eneral 389.

Case Details

Case Name: People v. . Sharp

Court Name: New York Court of Appeals

Date Published: Nov 29, 1887

Citation: 12 N.Y. St. Rep. 217

Court Abbreviation: NY