140 N.Y.S. 19 | N.Y. App. Div. | 1913
Lead Opinion
"There are two counts in the indictment. The first charges the defendant with an attempt to obtain from one Louis Blumenthal, by the wrongful use of fear, by threatening the said Blumenthal to do an unlawful injury to his person; that is to say, to kill him, unless the said Blumenthal should pay to the defendant the sum of $500, with intent thereby to induce such fear on the part of Blumenthal so that he would pay to the defendant the said sum of money. And the second charges that the defendant to obtain from Blumenthal the sum of $500 did threaten to do an unlawful injury to the person of the said
The defendant relies upon two exceptions to rulings on the admission of evidence to which attention should be called. The first was that the trial court erred in admitting the testimony of Louis Blumenthal, the complainant, given upon the preliminary examination of the defendant before the magistrate; and the second point was that the court erred in admitting evidence of the explosion of a bomb in the tenement house where Blumenthal lived in the early morning of December eleventh, the threat having been made on the afternoon of December 9, 1911. But before discussing these questions it is proper to state that we have carefully examined this record and entertain no doubt of the defendant’s guilt. He received a fair trial; the case was submitted, to the jury by a charge in which all of the defendant’s rights were protected; the court did not refuse to charge any request made by the defendant, and the jury found the defendant guilty upon evidence which clearly sustained their verdict. The court, therefore, is required by section 542 of the Code of Criminal Procedure to give judgment without regard to technical errors or defects or to except tions which do not affect the substantial rights of the parties.
The crime was alleged to have been committed on December 9, 1911. The defendant was arrested on the complaint of Blumenthal on December 11, 1911; his examination was had before the magistrate on December 13, 1911, when the complainant was fully examined by the magistrate and cross-examined by the counsel for the defendant on the trial. Having proved that Blumenthal was dead the People called the stenographer who took the stenographic report of Blumenthal’s testimony who produced his original minutes of the examination and a correct transcript from the stenographic notes of the testimony of Blumenthal, including his examination and cross-examination which was read to the jury. This testimony, as before stated, was taken by the stenographer in the presence
I think it is clear that upon this testimony the verdict that the defendant was guilty of an attempt to commit the crime of extortion was amply sustained by the evidence. Here was an oral threat to injure Blumenthal by the use of weapons or explosives, and if Blumenthal had paid to the defendant $500 as the result of that threat — induced by fear caused by that tlireat — the defendant would have been guilty of extortion, and that the defendant having by the threat attempted to secure the money was an attempt to commit the crime. That the defendant made the threat was proved by the two witnesses who heard parts of the conversation between complainant and defendant as well as by the testimony of the complainant taken before the committing magistrate, and the defendant admitted making the threat to the police officer who arrested him, claiming, however, that he did it as a messenger from two unknown men whom he failed to identify. The charge against the defendant was, therefore, substantially proved, and no one reading the record can have any serious doubt about his guilt.
The first question presented is whether it was error for the court to allow the deposition of Blumenthal to be read upon the trial of the action. By subdivision 3 of section 8 of the Code of Criminal Procedure it is provided that “ the defendant is entitled * * * to produce witnesses in his behalf and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate and the testimony reduced by him to the form of a deposition in the presence of the defend
In Commonwealth v. Richards (18 Pick. 434) the Supreme CJourt of Massachusetts held that such evidence was competent, and the rule is there stated (quoted from 2 Lilly’s Abr. 745), If one who gave evidence on a former trial be dead then upon proof of his death any person who heard him give evidence and observed it shall be admitted to give the same evidence as the deceased witness gave provided it were between the same parties.
Section 8 of the Code of Criminal Procedure states the rights of a defendant in a criminal action. The defendant is entitled to a speedy and public trial; to be allowed counsel as in civil actions or to appear and defend in person and with counsel; to produce witnesses in his behalf and to be confronted with the witnesses against him in the presence of the court except that where the charge has been preliminarily examined before a magistrate and the testimony reduced by him to the form of a deposition in the presence of the defendant who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found in the State. This section was part of the Code of Criminal Procedure as originally enacted as chapter 442 of the Laws of 1881, and its foundation was the Bill of Rights. (1 R. S. 94, §14; now Civil Rights Law [Consol. Laws, chap. 6; Laws of 1909, chap, 14], § 12.) But we have seen that the provision of the Bill of Rights was complied with if the defendant at any stage of the proceedings was confronted with the witnesses against him and the testimony of such witnesses taken in his presence with a full and complete right of cross-examination. This section of the Code of Criminal Procedure, however, expressly permits the deposition of a witness when taken at a preliminary examination before a magistrate to be read where the witness at the time of the trial is dead, or insane, or cannot, with due diligence, be found within the State at the time of the trial. But to justify the reading of such testimony under this permission the testimony must be reduced
It seems to me clear that in a county other than New York the deposition referred to was a deposition reduced to writing as required by section 204 of the Code of Criminal Procedure, but in the county of New York such a deposition was not required unless either the district attorney or the defendant requested it. The defendant had the right to have the testimony of the witness reduced to the form of a written deposition and authenticated by the signature of the witness and by the magistrate, but he could waive that right, and in this case did waive it by not requiring it. Consequently the testimony of the witness was taken down by the stenographer, an official duly appointed, whose duty it was to take down in shorthand writing the questions and answers propounded to each witness produced before the magistrate, and were so taken down in the presence of the witness and of the defendant, and' in a condition to be properly authenticated. The shorthand notes of this examination became a part of the proceeding before the magistrate, and although not literally transcribed in longhand there was an authentic record of it as part of the proceeding before the magistrate. Section 8 of the Code of Criminal Procedure does not require the deposition to be in writing subscribed by the witnesses or authenticated by the magistrate. All it requires is that the testimony should be reduced by the magistrate to the form of a deposition in the presence of the defendant. I think it was undoubtedly reduced to the form of a deposition by the stenographer acting under the direction of the magistrate in taking down each question and answer made by each of the witnesses who testified before him.
The only other objection by the defendant that it is necessary to notice is the exception to the testimony that early in the morning of December 11, 1911, the threat having been made in the afternoon of December ninth, a bomb exploded at the door of the complainant’s apartment, and it is claimed by the defendant that the court committed substantial error in allowing the proof of the fact of this explosion. I think, however, that in view of the situation as it existed in this case this evidence was competent. On Saturday afternoon the defendant demanded of complainant this sum of $500 and threatened if the money was not paid he would blow the complainant’s head off. On Monday morning, December eleventh, an attempt to “blow the complainant’s head off” was made, and on the same day at half-past seven in the morning the defendant was arrested. The officer told the defendant, that he was arrested on suspicion of having caused the explosion of a bomb at two a. m. that morning in front of Mr. Blumenthal’s (complainant) apartment
The principle upon which I consider this testimony admissible is stated by the learned author of Wigmore on Evidence (§ 105) as follows: “Where one threatens to do an injury to another and that or a similar injury afterwards happens, this furnishes ground to presume that he who threatened the fact was the perpetrator or instigator.” In People v. Kennedy (32 N. Y. 141) the defendant was indicted for the crime of arson in burning the barn of one Marshall on the 27th of August, 1863. The evidence connecting the defendant with the actual burning of the barn was that about a fortnight before the fire he had threatened to have revenge upon Marshall, to bum and damage his property all he could, and destroy his buildings, and he also threatened him with personal injuries. Chief Judge Denio in commenting upon the probative force of the testimony of these threats said: “This, it may be conceded, raised a presumption of some- weight that he had burned the ham. It was presumably fired by some person who had’malice against Marshall, the owner. A presumption of the same kind and the same status arose out of the same circumstances that he had attempted to burn the wood-house and dwelling. ” And it was not suggested that the evidence was not competent. In Stokes v. People (53 N. Y. 164) the defendant offered to prove that the deceased a short time before the occurrence had made violent threats against him. Evidence of threats made by the deceased, which had been communicated to the accused, was received by the court, but evidence of threats which had not been so communicated was rejected. This was held to be error, and the court said: “ For the reason that threats made would show an attempt to execute them probably when an opportunity occurred, and the more ready belief of the accused would be justified to the precise extent of this probability. But an attempt to execute threats is equally probable, when not communicated to the party threatened as when they are so; and when, as ■ in this case, the question is whether the attempt was in fact made, we can see no reason for excluding them in the former that would not be equally cogent for the exclusion of the latter, the latter being admissible only for the
The rule is, therefore, established that a threat to do an action is competent evidence to show that the person making the threat intended to carry it out. In the Stokes Case (supra) the threat held competent was that the deceased intended to injure the defendant, and that was held competent as a fact having probative force to prove that the deceased did intend to do what he threatened. We have here a threat to blow the complainant’s head off. It seems to me that the threat having been proved it was competent to prove that the defendant was connected with the subsequent attempt to accomplish what was threatened. It seems to be conceded that if there had been any evidence to show that the defendant was connected with the explosion then the fact of the explosion would have been competent; and yet this testimony of the threat was competent evidence to prove that the subsequent explosion was committed by the defendant or that he was coimected therewith. The threat was that he, the defendant, would blow the complainant’s head off. It was not that somebody else would do it, but that he would do it,- and if the fact that the defendant did subsequently attempt to carry out his threat would have been competent evidence to show the intent with which he made the threat, and if making the threat was competent evidence to show that he had been connected with the explosion, the fact that there was an explosion was competent evidence to prove the intention of the defendant to extort money from the complainant. With the probative force of the testimony we are not concerned. The only question here is whether it was error to admit the testimony, and I think it was not.
If the defendant had succeeded in extorting this $500 from
My conclusion, therefore, is that the judgment appealed from should be affirmed.
Laughlin and Dowling, JJ., concurred; Scott and McLaughlin, JJ., dissented.
Dissenting Opinion
I concur entirely in the opinion of the presiding justice except as to the admissibility of the evidence showing that after the making of the alleged threat some unknown person placed a bomb in the apartment occupied by the complaining witness.
The alleged threat to “ blow off the head ” of the complainant if he refused to submit to extortion was made on a Saturday afternoon. The People were allowed to prove that shortly after midnight on the following Sunday night or Monday a bomb exploded in one of the rooms of the apartment occupied by the complaining witness and his wife. There was no evidence connecting defendant with the placing of this bomb except such inference as might be drawn from his threat. I am unable to see how this evidence was admissible, and if inadmissible, it certainly was most damaging to defendant. If defendant had been indicted for setting off the bomb, I have no doubt that his previous threat to blow off complainant’s head would have been relevant. (Wigm. Ev. § 105; Stokes v. People, 53 N. Y. 175.) But this was not the case. The charge against the defendant was that he made the threat, and, in my opinion, evidence that afterwards some unknown person did attempt to blow up the complainant does not tend to prove the fact of the previous threat. The two occurrences were not so closely connected in point of time that the attempt constituted a part of the res gestae of the crime charged.
In People v. Adrogna (139 App. Div. 595) the defendant was
McLaughlin, J., concurred.
Judgment affirmed.