181 A.D. 753 | N.Y. App. Div. | 1918
The defendants were convicted under the third count of the indictment, which charges them with the crime of maintaining a public nuisance, in that they did unlawfully keep and maintain a certain common, ill-governed house, being the same house mentioned and described in the first count of the indictment, and in that house certain persons, both men and women, of evil name and fame, did frequent and come together at unlawful times, as well in the night as in the day, and then and at all times did there remain “ tippling, drinking, gaming, cursing, swearing, quarreling, rioting, whoring, making great noise, and otherwise misbehaving themselves, unlawfully and wilfully [the defendants] did permit and suffer to
The house is situate at 62 West One Hundred and Seventh street in the borough of Manhattan. It is an apartment house, comprising various apartments, the entire house being leased by the defendant Shenk. A large number, if not all, of the apartments were subleased by the defendant Glasser.
It is not my object to specify in detail the evidence of the unlawful character of the house. It is sufficient to say that we have carefully examined the evidence and we are well satisfied with the conclusion of the jury that this house was frequented by prostitutes, with their companions, openly; that there was much disorder, quarreling and improper language used, with open windows, and indecent exposures .before windows uncurtained, at different times of the day and night. We are satisfied also with the finding of the jury that both defendants had knowledge of the character of the house and its inmates, and willfully permitted the house to-be so maintained, so that it became a public nuisance as defined by law.
The defendant Shenk had been arrested a year before upon a similar charge, at which time four women residents of his house were arrested and convicted as public prostitutes. The prosecution of the defendant Shenk was not pressed, however. The witness Jones, at the time of the arrest of the defendant Shenk, told him that there had been no improvement in the premises, and that the place was filled up again with prostitutes and pimps and other disorderly characters, and that they were going to hold him responsible to clean that building out, and that he had better put them out of there. Shenk replied: “ I will put nobody out.” The witness Sutter then told the defendant Shenk that he had better get the pimps and prostitutes out of there, to which Shenk made no reply. This also was sworn to by the witness Sutter.
These two witnesses were both police officers. The jury had the right to believe their testimony. ’ Shenk for a part
One of the errors claimed is the refusal of the court to allow defendants to show by the janitor of the building that the .janitor had received instructions concerning the conduct of the house and what these instructions were. Similar questions were put to the elevatorman and the hallman Bowen, and were also excluded, and it was claimed on the argument that the defendants desired to show by these men that these servants were instructed to notify Shenk of any improper use of the apartments. There was no question as to whether the defendants used reasonable care in the conduct of the building or as to what effort they made to ascertain its use. The sole questions were, first, as to the actual use; and secondly, as to the actual knowledge of the defendants as to that use. If the defendants had been allowed to show any instruction to the servants to report to the defendants any improper use, with the finding upon abundant evidence that the apartments were improperly used, such evidence would have shown the probability of such information having been conveyed to the defendants, which would harm the defendants rather than help them. No tenants were removed by defendants except after conviction as prostitutes. If, as has been found, the defendants had knowledge of an improper use of the premises, instructions to their servants can neither mitigate nor atone for their unlawful conduct, nor can it avail the defendants if they gave instructions to their servants not to permit the improper use of the premises if, to their knowledge, these instructions, if given, were never carried out.
One witness was improperly allowed to designate the action of the defendant Shenk as a “ cover,” when Shenk tacked a paper upon the door of one of the apartments. This was the inference that the district attorney sought to draw from the act, and was apparently only an inference which it was within the province of the jury to draw, and it is hardly possible that this apparent inference could have prejudiced
There are further objections made to the charge of the court, but a careful reading of the charge would indicate that they are entirely without substantial foundation. It appears all through the trial that the defendants were seeking to arouse a prejudice against the policemen’s evidence, upon which such convictions largely must rest. One question, for example, asked of a policeman witness was whether he was a member of “ the whore house squad.” It was not only the right but the duty of the trial judge to so conduct the trial as to avoid, if possible, the creation of any undue prejudice in favor of the defendants as against policemen, the necessary witnesses for the People. While in this endeavor the trial court may have gone further than was necessary in his commendation of the policemen witnesses and of the police force of the city of New York, and of their right to strive for advancement in the service, nevertheless he was careful to caution the jury that they had no right to commit perjury for any reason or to be corrupt for any reason, or to do any wrongful act.
The trial court repeatedly in his charge instructed the jurors that they were the sole judges of all questions of fact and of the credibility of witnesses, and that the defendants should be given the full benefit of any reasonable doubt. We are unable to find in the charge any legal error or any attempt to influence the.jury to give any undue consideration to the testimony of the witnesses for the People or to create any undue prejudice against the defendants or their witnesses.
The burden of the appellants’ complaint upon this appeal, however, is that the trial was so conducted by the court, both by his interference with the trial in asking many questions, and by the nature of the questions asked and his characterization of the evidence of the witnesses, that it amounted to a usurpation by the court of the functions of the jury, to the material prejudice of the defendants in the action. While the court in its charge to the jury stated that he had not intended to indicate in any way his opinion upon any question of fact
After this opportunity so given at a time when the trial was nearly finished, there was nothing in the conduct of the trial which would prejudice the defendants to any greater extent and for which this judgment must be set aside. The jury was fully instructed that the defendants should be given the benefit of all reasonable doubts, and that the determination of the facts was entirely within their province and not within the province of the court and should be determined without any reference to any impression which may have been created in their minds by any act of the court. The guilt of the defendants was so clearly shown that the jury could hardly have reached a different conclusion from the one expressed by their verdict, and I am unable to find any substantial error for which the defendants should be given another chance with another jury.
The judgment of conviction should, therefore, be affirmed.
Clarke, P. J., Laughlin, Scott and Dowling, JJ., concurred.
Judgment affirmed.