205 A.D. 723 | N.Y. App. Div. | 1923
The Executive Law contains the following provisions: “ Whenever in his judgment the public interest requires it, the Attorney-General may, with the approval of the Governor, and when directed by the Governor, shall, inquire into matters concerning the public peace, public safety and public justice. * * * The Attorney-General, his deputy, or other officer designated by him, is
The facts known, and the proceedings which had been taken in relation to the death of Clarence Peters, at the time when the Governor made his communication to the Attorney-General, were as follows: On May 16, 1922, the body of a dead man was discovered by the authorities at the place named in the communication. The apparent cause of death was a gunshot wound. On May seventeenth the body was identified as the body of Clarence Peters. On May nineteenth the authorities were still without information as to the identity of the person who had killed Peters. On that day counsel for Walter S. Ward, one of the plaintiffs herein, informed the authorities that his client had shot and killed him. On May 22, 1922, Ward was surrendered to the authorities by his counsel. At this time counsel made a written statement setting forth the facts in relation to the homicide. It appeared therefrom that Clarence Peters was one of a gang of three men who had attempted to blackmail Ward; that these men sought to extort money from Ward by various threats including that of the death of himself and family; that they finally demanded the payment of the sum of $75,000; that Ward agreed to meet the men on the night of May fifteenth to talk matters over; that they met at the place appointed; that Ward was in an automobile from which Peters, while covering him with a revolver, directed him to descend; that Ward made a grab for the revolver held by Peters and thereby diverted the shot which Peters fired; that Ward returned the fire, thereby killing Peters; that the remainder of the gang immediately fled and the body of Peters was left by the roadside. On June fifteenth the grand jury of the county of Westchester returned an indictment ior murder in the first degree against Ward for the killing of Clarence Peters. On July eleventh
The Attorney-General, pursuant to the communication made to him by the Governor, instituted the investigation thereby directed to be made. He designated one of his deputies to act on his behalf and directed him to take whatever steps he might deem necessary. Various hearings were conducted by this deputy. Witnesses were subpoenaed to appear before him, and were examined. The purpose of the examinations was to establish that Walter Ward, without justification, killed Clarence Peters. It appeared from the proof that Ralph D. Ward, the brother of Walter Ward, had at one time cabled his father asking authority to give Walter a large sum of money; that the father wired back instructions to give Walter the money; that he later wired Ralph directing that no money be paid if it were required as blackmail; that this change in instructions had resulted from a cable sent by Walter to the father; that Walter had refused to tell Ralph whether the money was wanted for blackmail; that Ralph in consequence did not pay over the money.' Thereupon officers of the Western Union Telegraph Company, defendant herein, were subpoenaed to deliver up the cablegrams which had been sent through the offices of the company by Ralph Ward or Walter Ward to their father or by their father to either of them. This action was thereafter brought by Walter S. Ward with whom Ralph D. Ward, his brother, and
The purpose animating the Governor in directing the investigation to be made, and the objects sought to be advanced by the Attorney-General in making it, are controlling upon the jurisdictional question whether or not the proceedings had legal sanction. The information possessed by the Governor was exclusively to the effect that Walter Ward had killed Clarence Peters. He must have been advised that Ward had admitted the killing; that he had asserted that it was done in self-defense; that Ward had been indicted; that the indictment had been dismissed; that no evidence had been forthcoming that the homicide committed by Ward was criminal. He could not have been advised that any person other than Ward killed Peters. The investigation which followed was directed to the single end of breaking down Ward’s claim that the homicide was justifiable. The Attorney-General has never advanced the theory, and does not advance it now, that the homicide was committed by a person other than Ward, or that proof to that effect exists or may be obtained. The contention that the investigation was general in character, therefore, fails (Matter of Both, 200 App. Div. 423; People ex rel. Travis v. Knott, 204 id. 379), and we must conclude that it was directed and conducted with the sole purpose in view of obtaining proof that the individual Ward killed the individual Peters with malice aforethought.
We do not think that the provisions of subdivision 8 of section 62 of the Executive Law, which- are relied upon by the Attorney-General and which we have quoted, were designed to give sanction to an investigation of this character. The law in this State, as in other jurisdictions which boast of the great heritage of the English common law, protects accused persons not alone against
The subdivision in question was added to section 62 by chapter 595 of the Laws of 1917. That act became a law in May, 1917, within one month of the time when the United States entered the World War. It is a matter of common knowledge that at this time the State and nation required protection against the destructive plans and acts of alien enemies resident here as well as against the acts of its own disloyal citizens. There can be no reasonable
We think also that, if the Legislature did intend, when it added subdivision 8 to section 62 of the Executive Law, to authorize a criminal investigation against an individual, such as has been directed and conducted in this instance, it acted without authority in law. In the leading case of People ex rel. McDonald v. Keeler (99 N. Y. 463) the question arose whether a committee of the Legislature, authorized by that body to conduct an investigation in reference to the affairs of the department of public works in the city of New York, could lawfully subpoena witnesses to attend before it, and, in the case of the non-attendance of a witness or of his refusal to answer, could lawfully exercise the power of punishing him for contempt. It was there stated by the court that although the Constitution of the State of New York did not in terms, as did the Constitution of the United States, divide the powers of the government into separate classes, it was, nevertheless, “ a recognized principle that in the division of power among the great departments of government, the judicial power has been committed to the judiciary, as the executive power has been committed to the executive department, and the legislative to the Legislature, and that body has no power to assume the functions of the judiciary to determine controversies among citizens, or even to expound its own laws so as to control the decisions of the courts in respect to past transactions.” It was held that the Legislature might, nevertheless, exercise powers of a judicial
The order should be reversed and an order granted enjoining defendants as prayed in the complaint.
Van Kirk, Hinman and Hasbrouck, JJ., concur.
Order reversed on the law, with ten dollars costs and disbursements, and order enjoining defendants as prayed in the complaint granted.