People v. Squire — 20 Abb.N. Cas. 368

Majority

p. 368

PEOPLE v. SQUIRE.

N. Y. Oyer and Terminer;

February, 1888.

Headnote

1. Indictment for conspiracy; appointment to public office.] An indictment is sufficient under Penal Code, § 168, as charging a conspiracy for the perversion or obstruction of justice, and of the due administration of the laws, which alleges an agreement between the defendants that, in consideration of one of them securing' the other’s appointment to a public office (in this case commissioner of public works of the city of New York), the latter would place his resignation in the former’s hands, whenever demanded; make no appointments of subordinates in the office without his approval; make such removals therein as he might suggest and request; and transact the business of the office as he might direct.

2. The same; construction of agreement.] Such an agreement cannot be construed.to mean that one defendant should appoint the othet as an official deputy, under the statute authorizing him to appoint a deputy, with all his powers and duties for a limited term, as it is an agreement entirety to surrender all the powers of the office, in eluding a resignation thereupon, without limit as to time.

8. The same ; allegation of use of illegal means.] Where the general allegations of the indictment, that the parties did unlawfully, wickedly, and corruptly conspire to procure such appointment to office, are followed by an allegation that the acts were done upon a corrupt and wicked agreement, and with intent that upon the appointment being made, the business of the office should be transacted by the party appointed, as the other party should direct, etc., there is a sufficient designation of the means by which the alleged conspiracy was to be effected and carried out.

4. The same; overt acts.] Allegations of the indictment that the defendant, in pursuance of the conspiracy, made application for appointment to the office, and made, signed and delivered to the co-defendant, a letter embodying the agreement set forth, sufficiently show overt acts done in pursuance of the alleged agreement

Demurrer to indictment for conspiracy.

The facts sufficiently appear in the opinion.

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John R. Fellows, district attorney, and Benj. F. Dos Passos, assistant, for the People.

Noah Davis, and B. W. Huntington, for the defendant, Flynn.

Howe & Hummel, for the defendant, Squire.

The indictment in this case is for a conspiracy, and it consists of twenty-two counts. A general demurrer has been interposed by each of the defendants, and it therefore follows that if any one of the .counts contained-in the indictment is good, the demurrer must be overruled.

The definition of conspiracy is contained in section 168 of the Penal Code, which provides that “ if two or more-persons conspire either 1, to commit a crime or ... . 6, to commit any act injurious to the public health, to-public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due ad/ministration of the* laws, each of them is guilty of a misdemeanor J

Elaborate arguments have been heard'in support of and against the . demurrers. After considering them, I have-reached the conclusion that the demurrers must be overruled on the ground, that in the sixteenth count, if in no-others, a ease of conspiracy as the same is defined by section 168 of the Penal Code is made out. In that count the-grand jury accused the defendants of the crime of conspiracy, committed as follows:—

“ And the grand jury aforesaid, by this indictment, fur-, tlier accuse the said Roll in. M. Squire and Maurice B. Flynn-of the crime of conspiracy, committed as follows :

“Heretofore, to wit, on the 26th day of December, in the-year aforesaid, at the city and county aforesaid, the term of 'a certain public officer, to wit, the commissioner of public-works of the city of New York, had then lately before-expired, and the mayor of said city was then about' to nominate, and by and with the consent of the said board of-

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¡aldermen of the said city of New York, to appoint some ' .person as sncli commissioner of public works, for which ¡appointment as such commissioner of public works, the ¡said Iiollin M. Squire was then and there an applicant and .candidate. And the said Maurice B. Flynn, or. the day and ¡in the year aforesaid, was then and there and for along time .prior thereto had been, and then intended thereafter to continue and remain, engaged and interested in the business of .procuring, soliciting and executing awards, orders and contracts, and in the procuring, soliciting and executing of ■awards, .qrder and contracts, let, and awarded and to he Tet and awarded by the head of the department of public works, to wit, the commissioner of public works, of the city of New York, for work done and supplied and to be done and supplied for and on account of the corporation of the city of New York, the expense, price, and consideration of which .was .payable, and was to he payable, from the city ¡treasury, and was by reason thereof ineligible to the said ■i.ffice of commissioner of public works, as they, the said Rol.lin "M. Squire, Man rico B. Flynn, Hubert O. Thompson, and -¡lie other evil-disposed persons hereinafter mentioned, then ¡and there well knew.

“Nevertheless, the said Rollin M. Squire and Maurice ¡B. Flynn, both late of the city and county aforesaid, together •with said Hubert O. Thompson and the said other evil dis■posed persons, unlawfully, wickedly, and corruptly eon-triving and intending to obstruct, defeat and pervert the due .administration of the law, and to get in their hands and control the said office of commissioner of public works, for their own most wicked and corrupt ends and purposes, .afterwards, to wit, on the day and in the year aforesaid, at the city and county aforesaid, did unlawfully, wickedly and corruptly conspire, combine, confederate and agree together between and amongst themselves, to cause and procure him, the said Rollin M. Squire, by and through the corrupt means and procurement of them, the said Rollin M. Squire, Maurice B. Flynn, Hubert O. Thompson,

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and tho said other evil disposed persons, to be nominated by the mayor of the said City of New York, and by and with the consent of the said board of aldermen of the said city of New York, to be appointed as such commissioner of public works, upon a corrupt and wicked understanding and agreement, and with intent that, upon and in the event of the said Rollin M. Squire being appointed to the said office, he, the said Rollin M. Squire, should transact the business of the said office as the said Maurice B. Flynn might and should direct, and should and would make no appointment of any subordinates, clerks or employees of and appertaining to the business of the said office, without the approval of the said Maurice B. Flynn, and would and should make such removals of any and all of such subordinates, clerks and employees as the said Maurice B. Flynn might and should suggest and request, and that the said Rollin M. Squire should and would, upon and in the event of such appointment, grant to the said Maurice B. Flynn the right and authority to discharge any and all of the functions of the said office, and should and would permit, him, the said Maurice B. Flynn, to make any and all of the appointments and to perform any and all of the duties necessarily touching and being incidental to the administration of the said office.

“ And the said Rollin M. Squire, in pursuance and furtherance of, and according to the said conspiracy, combination, confederacy and agreement between himself and the said Maurice B. Flynn, Hubert O. Thompson and the said other evil-disposed persons, as aforesaid, afterwards, to wit, on the day and in the year aforesaid, in the- city and county aforesaid, did personally appear before the said mayor of the said city of New York and did make application to the said mayor to be nominated as such commissioner of public works, in due form of law; and did then and there cause and procure the said mayor to duly nominate him, the said Rollin M. Squire, as such commissioner of public works.

“ And the said Rollin M, Squire, in the further pursu?

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anee and furtherance of, and according to the said conspiracy, combination, confederacy and agreement as aforesaid, afterwards, to wit, on the day and in the year aforesaid, at the city and county aforesaid, did unlawfully, wickedly and corruptly make, sign and subscribe, and deliver to the said Maurice B. Flynn and Hubert O. Thompson, a certain paper in writing, in these words following :

“ Hew York, December 26th, 1884.

66 Maurice B. Flynn, Esq.,

“ Dear Sir:

“ In consideration of your securing not less than four County Democracy aldermen who shall vote for my confirmation as commissioner of public works, in the event that the mayor shall send in my name for that office, 1 hereby agree to place my resignation as commissioner, in case of my confirmation, in your hands whenever you may demand the same, and further, to make no appointment in said office without your approval, and to make such removals therein as you may suggest and request, and to transact the business of said office as you may direct.

“ Very truly yours,

“ Hollín M. Squire.”

to the manifest perversion and obstruction of the due administration of the laws, to the pernicious example of all others in like case' offending against the form .of the statute in such case made and provided, and against the peace of the people of the state of Hew York, and their dignity.”

It is claimed that this count does not state any offense which is known to the law, and that, therefore, the demurrers should be sustained. It is said, that it is perfectly proper that two or more persons should attempt to procure the appointment of another to an office, and that there is no allegation in this count that any corrupt means were resorted to, or agreed to be resorted to, in procuring the nomination and appointment of the defendant Squire. I

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do not so read the count. The fair construction of that count is, that, in consideration of the obtaining of such appointment, Squire would in effect abdicate his office and place his resignation in the hands of Flynn, in case of his confirmation, whenever the same might be demanded, and make no. appointments in said office without Flynn’s approval, and to make such removals therein as Flynn might suggest and request, and transact the business of said office as be might direct.

It seems to me that there is there stated a conspiracy for. the perversion or obstruction of justice, and certainly of the due ad ministation of the laws.

Under the Charter or Consolidation Act,^[1] providing for the appointment and prescribing the duties of the commissioner of public works, it is quite clear that it was the-intention of the Legislature, and of- the people whom they represented, that the duties of the office should be performed and transacted by the commissioner in person, and not by one wholly disconnected therewith.

It is urged by the counsel for the defendants, that inasmuch as by section 315 of the Consolidation Act, “ The commissioner of public works may appoint a deputy commissioner of public works, who shall, in addition to his other powers,, possess every power, and perform all and every duty belonging to the office of said commissioner, whenever so empowered by said commissioner by written authority designated therein, a period of time, not extending beyond the period of three months, nor beyond the term of office of the said commissioner of public works, during which said power and duty may be exercised, and such designation and authority shall be duly filed in and remain on record in the department of public works, and that the said deputy commissioner of public works shall possess the like authority in case of the absence or disability of the commissioner of public works,”. that it must be intended that all that was meant by the letter

* L. 1882, c. 410, § 815, etc.

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set forth in the indictment was that Squire should appoint Flynn as the deputy pursuant to the section of the statute just referred to. I do not think that that is the proper or legitimate interpretation to be placed upon that letter. It is not an offer to appoint to the deputyship in consideration of Flynn’s doing the act therein referred to, but to entirely surrender all the powers of the office, including a resignation therefrom, without limit as to time. Therefore, I do not think that the presumption which would generally arise, that a party intended to act legally and not illegally, is to be applied to the letter in question.

As before stated, it is claimed that no illegal means were to be resorted to, in carrying out the agreement which is alleged to be a conspiracy. While it may be true that the more general wordsr of the count, to wit: that the parties did “ unlawfully, wickedly and corruptly conspire and agree together and between and amongst themselves to cause and procure him, the said Iíollin M. Squire, by and through the corrupt means and procurement of them, etc., to be nominated 'by the mayor, etc., and by and with the consent of the said board of aldermen, etc., to be appointed as such commissioner of public works,” would not be a sufficient designation of the means to be employed in effecting the alleged illegal object, yet, as these words are followed by an allegation that the acts were done upon a corrupt and wicked understanding and agreement, and with intent that upon and in the event of Squire being appointed to the office, he should transact the business of said office as Flynn might and should direct, etc., and that the said Eollin M. Squire, in pursuance and furtherance of said conspiracy, gave the letter of December 20, 1884, to Flynn, there is sufficient designation of the means by which the alleged conspiracy was to be effected and carried out.

Xor do I concur in the opinion expressed by the learned counsel for the defendant Flynn, that the agreement in question presents no evidence of a conspiracy, for the reason that there is no one act which the parties agreed to do

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together, and that Squire is to do nothing until after Flynn had acted. In substance and effect the offence charged by the indictment, as I understand it, is an agreement or conspiracy for the perversion or obstruction of justice and tho due administration of the laws. To effect that object several acts were to be done leading or tending to the general result, which is the crime charged, the prevention of the due administration of the laws by a complete surrender of all the powers of the office, after the same shall have been procured by the nomination of the mayor and confirmation by the aldermen.

The learned counsel for the defendant Squire also claims that as the conspiracy charged, if anything, is only a misdemeanor, the agreement to commit- it does not amount to a conspiracy under section 171 of the Penal Code, unless some act besides such agreement is done to effect the object thereof by one or more of the parties to such agreement. Is this a just criticism ? I think not, because it is alleged as an overt act, that Squire in pursuance and furtherance of the alleged conspiracy between himself and Flynn and Thompson and others, did make application to the said mayor to be nominated, etc., and in pursuance thereof, did make, sign and deliver to them the letter which is set forth in the indictment. These are overt acts done in pursuance of the alleged agreement. In other words tho conspiracy does not consist merely in the written paper, which is set forth in the count; the letter is one of the acts done in pursuance of the agreement, and is also evidence thereof. I am of the opinion, therefore, that the defendants are sufficiently informed of the accusation against them, intended to be charged by the indictment, and that it is sufficiently specific both as to the crime alleged, and as tó the acts constituting it.

Nor do I think that the observations of the court in People v. Dumar ( 106 N. Y. 502 ), contain anything militating against this view. That case did not arise upon demurrer and it was admitted that the crime of grand larceny vfaswell charged in the indictment, but the court said that the;

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proof failed, because it tended to show that the "property was obtained by the defendant by false and fraudulent representations, and that although by the Penal Code the obtaining of property by false and fraudulent representation, constitutes larceny, the proof of such representations will not sustain an indictment for a common law larceny (See pp. 507, 508 and 511).

The district attorney relies upon the indictment found in the case of People v. Case and others for conspiracy, in which he claims that a similar demurrer was overruled by Justice Daniels, and although the statement as to intent may have been more full in that indictment than in the one under consideration, it seems to me that the decision may fairly be regarded as a precedent in this case.

Finally, I atn" of the opinion that the remarks of Judge Finch in the case of People v. Willet ( 102 N. Y. 251 ), as to the purpose for which the Code of Criminal Procedure was passed, and as to the reformation which it was expected to effect, in reference to indictments, are peculiarly applicable to this case.

Several other questions were discussed by counsel on the argument, but enough has been said, I think,-to show that the demurrer should not be sustained.

For these reasons the demurrers are overruled, and pleas must be filed in accordance with the stipulation made when leave to demur was granted.

Cases cited

People v. Dumar 106 N. Y. 502 N.Y. 1887-10-04 p. 375
People v. Willett 102 N. Y. 251 N.Y. 1886-04-13 p. 376