Hyperlawhypertext legal databasebeta People v. O'Neil 109 N.Y. 251

← Cases

People v. O'Neil

109 N.Y. 251 Court N.Y. Decision date 1888-04-10 English

Delivered by Andrews, J.

Contents

Majority

p. 251
The People of the State of New York, Respondent, v. John O’Neil, Appellant.

Headnote

The provision of the New York charter of 1873 (§ 100, chap. 33, Laws of 1873), in reference to the crime of bribery committed by an officer of the municipal government of that city, was repealed by the provision of the Penal Code (§ 72), providing for the punishment of public officers guilty of that offense, so far as in conflict with the latter provision.
Said provision of the Penal Code, however, is not retrospective in its effect, and, as it increases the punishment prescribed by the charter, it only operates upon a crime committed by a member of the common council of said city when committed after December 1, 1882, when the Penal Code went into effect.
It seems that if the said provision of the Code had purported to enact a rule as to past, as well as future transactions, it would be void as to the former only.
The provision of the consolidation act of 1882 (§ 2143, chap. 410, Laws of 1882), declaring that the Penal Code is to have the same effect as if passed after said act, is not violative of the constitutional provision (art. 3, § 16), prohibiting the passage of a local or private bill embracing more than one subject and requiring that to be expressed in the title.
In selecting a jury upon the trial of defendant, who was one of the board of aldermen of New York city of 1884, under an indictment for bribery, each juror, when called, was challenged by the district-attorney, in general terms, without assigning special grounds of challenge. That officer informed each juror that two members of the board of aldermen of 1884 would be examined as witnesses, and it was supposed that they would testify they were engaged with defendant in the transaction out of which the indictment arose; the juror was then asked, and was permitted to answer, under objection and exception, if he had such a prejudice against persons so testifying as would prevent their giving their testimony such weight as it might be entitled to in law. Held, no error; that the question was one bearing upon the impartiality of the juror in reference to the case, within the provision of the Code of Criminal Procedure (§ 876), which defines, as one ground of challenge to a juror, the existence of a state of mind on his part which satisfies the court that he cannot try the issue impartially and without prejudice to the substantial rights, of the party challenging.
The court was called upon in only one case to decide the challenge, and in that defendant’s counsel at the conclusion of the examination said: “We leave the decision of the challenge with your honor.” The court thereupon overruled the challenge. No exception was taken and the juror " took his seat. In all other cases when the examination was finished the juror took his seat without objection, and apparently with the acquiescence of both sides. When the panel was full defendant's counsel objected to>
p. 252
the district-attorney being permitted to exercise the right of peremptory challenge on the ground that the jurors having been permitted to take their seats in the box without objection, the right of peremptory challenge was waived. Held, that this was an acceptance of the jury selected and a consent to their sitting, and so a waiver of the objection, even if the allowance of the question was error.
After the settlement of a certain suit had been proved, a witness testified, without objection, that he had negotiated the settlement with the plaintiff or his attorney. He was then asked. “With whom personally did you negotiate the settlement.” This question was objected to and the objection overruled. Held, no error.
Evidence was received of the acts and proceedings of the board of aider-men, in which defendant participated, after the passage of the resolution in connection with which the crime was charged, and as to meetings at the house of one of the aldermen: Held, no error, as the evidence threw light upon defendant’s prior conduct and tended to confirm the evidence of his accomplices and to show that defendant’s vote was in fulfillment of the corrupt agreement,
"Defendant was permitted to state the reasons which induced him to vote in favor of granting a certain franchise, on account of which vote he was accused of having been bribed, and was then asked as to his object and purpose in voting against a rescission of the grant. This question was overruled. Held, no error
Two witnesses for the prosecution had previously been examined before a senate committee, and their testimony on such examination was in conflict with that given on the trial. The court refused to charge, as requested by defendant's counsel, that if the jury should find that the witnesses committed willful perjury in their testimony before said committee. they should wholly disregard their testimony on the trial Held, no error (Penal Code, § 714 )
'The testimony of a witness who has committed perjury in the same matter upon a prior occasion, whether it is established by a conviction or by his confession, or is found by the jury, must be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence,
"It was claimed that the testimony of defendant's accomplices was uncor roborated by “such other evidence as tends to connect the defendant with the commission of the crime” as required by the Code of Criminal Procedure (§ 399). Evidence had been given of the participation by defendant in proceedings of the board of aldermen, which were clearly in fulfillment of the corrupt agreement charged in the indictment, and of his connection with the transactions under investigation. Held, that there was sufficient corroborative evidence.
(Argued March 21, 1888;
decided April 10, 1888.)
p. 253
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 20, 1887, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting the defendant of the crime of bribery, and which denied a motion for a new trial.
The indictment charged, in substance, that in the year 1884 the defendant was a member of the board of aldermen in the city of New York, and, as such, a member of the common council of that city; that in the month of August of that, year there was pending before said board of aldermen an application from the Broadway Surface Railroad Company for the consent of said board, as provided by chapter 252 of the Laws of 1884, to construct and operate a railroad on Broadway, in the city of New York, and that the defendant-agreed to accept a bribe from some person, to the grand jury unknown, to influence his vote as an alderman, member of the common council, upon the said measure thus pending as aforesaid before the said board of which he was a member.
It appeared from the evidence, on the part of the prosecution that in the month of April, 1884, after the board of alderman .had had a general meeting, one De Lacey and one Jaehne, who were members of the board of aldermen, suggested to other members of the board that they should remain for the purpose of talking over some special business, and that, acting upon their suggestion, some seven or eight members of the board of aldermen remained in the aldermanic chamber after the rest of the members had departed, and discussed generally the question of forming a combination among the members of their board for the purpose of controlling the railroad matters which they foresaw would come before them upon the passage of the act (chapter 252 of the Laws of 1884), then pending in the legislature. The act was passed on the 6th day of May, 1884. After some general conversation as to the advisability ■ of forming such a combination, and who should constitute the members thereof, they parted, agreeing to meet about a week later at the store of one of their
p. 254
.number, Alderman Fullgraff. Fullgraff had a store in Fulton street, and a factory adjoining; about a week later Fullgraff, having sent his employees, including the janitor, away, and himself remaining in charge of the building, these seven or eight aldermen, with four or five more, making thirteen in all, and constituting a majority of the board of twenty-four, assembled between the hours of six and seven in the evening. It appears, mainly from the evidence of Alderman Fullgraff . and Alderman Duffy, who were called as witnesses by the prosecution, that Fullgraff was on hand; that they arrived in twos and threes; that they were admitted by Fullgraff, and went up two flights of stairs into that part of the factory where Fullgraff had his office; that they discussed the question -of forming a combination of a majority of the board of aldermen for the purpose of controlling all railroad matters which would come before them. And it was agreed among them that they would form such a combination, constituting a majority of the board, so that no grant of the aldermanic consent, as provided by the act, could be had and procured from the board of aldermen without their concurrent vote. Before they separated they agreed that they would have their next meeting at the house of one of their number, Alderman McLaughlin, who was chairman of the railroad committee. Shortly thereafter the thirteen composing the combination .assembled at McLaughlin’s house, arriving there between the hours of six and seven in the evening, one or two at a time; McLaughlin himself opened the door and let them in. While they were in the house they saw no one except their own party; and when the business was transacted McLaughlin opened the door and let them out. They went - out in twos and threes. McLaughlin was made chairman of this meeting, and it was stated that the first business matter that came before them was the question of determining to which of the corporations desiring to construct a railroad on Broadway the aldermanic consent should be given. De Lacey communicated two offers for the aldermanic consent, - one by a corporation known as the Cable Company, and one
p. 255
by a corporation known as the Broadway Surface Railroad Company. It was stated that the Cable Company offered to pay them individually §750,000, one-half in cash and one-half in bonds; and that the Broadway Surface Railroad Company offered to pay $500,000, all cash; and thereupon these two propositions were discussed by the members present, and it was urged by Alderman Jaehne that it would be dangerous to accept the proposition of the Cable Company, for the reason, as he said, that there were a great many persons engaged in that enterprise, that bonds could be easily traced, and that it would be easier and safer to accept the proposition of the Broadway Surface Railroad Company, viz., $500,000 in cash. After some general discussion upon the subject by the various members present, all present, of whom the defendant was one, voted to accept the proposition of the Broadway Surface Railroad Company. It was then discussed how much each of the thirteen should receive for his vote, and the sum of $22,000 was agreed upon. Shortly thereafter another meeting was held at McLaughlin’s house, which was attended by twelve of the thirteen. The members arrived at about the same hour as they had at the first meeting; were admitted by McLaughlin; and when all were present it was announced that they were assembled for the purpose of determining who should be appointed to receive and hold the money until the time arrived for its distribution. The names of William H. Maloney, who was at the time a reading clerk in the board of aldermen, and of John Keenan, were proposed. Some discussion ensued, and it was finally agreed, by all present, that Mr. Keenan should hold the money. At the same time it was suggested that Maloney should obtain as many votes of other members of the board as it should be necessary in case the mayor should interpose a veto upon the action of the board, and that Maloney should procure them for as small a price as possible. On the thirtieth day of June the Broadway Surface Railroad Company filed its petition with the board of aldermen, asking their consent to construct and operate a street surface railroad upon Broadway. That petition, without debate, was referred to the railroad committee, of which
p. 256
Alderman McLaughlin was the chairman. On the 5th day of August, 1884, the railroad committee, having previously advertised, in conformity with the provisions of the statute, that they would hold a meeting on that day for the purpose of taking the views of citizens upon the question of building a railroad upon Broadway; that a railroad ought to be built on Broadway, and that the Broadway Surface Railroad Company ought to have the aldermanic consent to build it, in accordance with the prayer of its petition. The railroad committee, on that day, the report being previously prepared by the attorneys for the Broadway Surface Railroad Company, reported to the board of aldermen that the petition of said company ought to be granted. The next day the report was presented at a general meeting of the board, and a motion put and carried that the report of the committee be accepted and adopted, and that the aldermanic consent be given for the construction by that company of a surface railroad on Broadway. The mayor vetoed the resolution. After the veto another meeting of the combination was called and assembled at McLaughlin’s house, the thirteen members all being present, and it was ■ agreed to reduce the sum which they had agreed to accept at the previous meeting to the sum of $20,000 each, in order that a sufficient amount could be obtained from each member of the combination to pay those persons who had agreed to stand by them in passing the resolution in question over the mayor’s veto. Upon the twenty-fifth day of August an injunction was obtained by one Liddy, restraining the members of the board of aldermen from taking any further action in relation to the petition of1 the Broadway Surface Railroad Company, and in particular from passing it over the mayor’s veto The papers upon the injunction, consisting of summons, complaint and injunction order, were filed in the aldermanic chamber on the day last named, and, in accordance with the practice, were sent by the board of aldermen to the counsel for the corporation. It appeared from the evidence that the president of the Broadway Surface Railroad Company retained counsel for the pur
p. 257
pose of negotiating with Liddy a settlement of this suit, and about noon of the twenty-ninth day of August, Liddy compromised this case by receiving the sum of $12,500 from the said company, and gave a release discharging that corporation from all claims whatsoever, a consent to the discontinuance of the action against the members of the board of aldermen, and to a dissolution of the injunction restraining them from acting upon said petition. Upon the afternoon of that day Maloney obtained the signatures of the requisite number of the members of the common council to a call for a special meeting the next day at nine a. h. At that hour all the members of the board save four, two of whom had notice of the meeting, assembled at the aldermanie chamber in pursuance of said call; Maloney did not apply to them nor to either of them for their signatures to the call, but the clerk of the board, at about ten minutes before nine o’clock, mailed to them and certain others of the board who had not signed the call, notice that there would be a meeting at nine o’clock. When the board had so assembled, the door by which the public was accustomed to enter and witness the proceedings was closed and locked. The private door by which the aldermen had entered was also closed and locked. The resolution granting the consent of the local authorities to the Broadway Surface Railroad Company was called up, and by a vote of all present was passed over the veto. On the 8th day of September, 1884, the corporation counsel rendered an opinion, which the mayor presented to the board, to the effect that the meeting of August 30,1884, was illegally called, and that any action taken by the board at that meeting was null and void. The Broadway Surface Railroad Company thereupon presented a second petition to the board on the 6th day of October, 1884. A resolution to rescind the action of August thirtieth was voted down by the board. The second petition was referred to the railroad committee, and upon the tenth day of November the committee reported in favor of the Broadway Surface Railroad Company. On
p. 258
the thirteenth of November the board passed a resolution granting consent to the Broadway Surface Railroad Company as before. The resolution went to the mayor, who returned it with a veto. On the fifth day of December the board, by a vote of twenty-two to two, passed the resolution over the veto.
The further facts material to the questions discussed are Stated in the opinion.
Pete r Mitchell and Charles W. Brooke, for appellant.
The court erred in excluding the testimony of the defendant as to “his object and purpose of voting” for the granting of the franchise to the Broadway Surface Railroad Company. (Kirrains v. People, 60 N. Y., 222 .) The court erred in charging the jury with regard to the testimony of Fullgraff and Duffy: “ You have noted its elaborate' character, you have watched the witnesses under cross-examination, you have weighed motives, probabilities, circumstances, facts; having done all this, you will place your hand upon your heart and say whether, upon the whole,_ you think these witnesses have spoken the truth here; and if they have, it will be your duty to so declare.” (McKenna v. People, 81 N. Y. 361 ; Read v. Hurd, 7 Wend. 409 ; Fitzgerald v. Alexander, 19 id. 402; Bulkley v. Keteltas, 6 N. Y. 384 ; Stokes v. People, 53 id. 164.) The court erred in refusing to charge the jury that, “ where a witness is proven, either upon trial of the case pending, or in some other case involving the same subject-matter, to have committed willful perjury, the jury should utterly disregard his testimony.” (Dunlop v. Patterson, 5 Cow. 243 , 247; People v. Evans, 40 N. Y. 1 ; Pease v. Smith, 61 id. 477, 483; Deering v. Metcalf, 74 id. 503-505 ; Dunn v. People, 29 id. 523; People v. Petmecky, 99 id. 421; Moett v. People, 85 id. 373; The Santissima Trinidad, etc., 7 Wheat. 338 , 339; Heuber v. Teuber, 3 McArthur [D. C.], 485; Starkie on Evidence, 873; Sanders v. Leigh, 3 Hav. & McH. 380; Best. on Presumptions, 47 Law Lib. 206.) An error of the judge, whether in the admission- of evidence, or
p. 259
in his instructions to the jury, was prejudicial to the party objecting, and will be ground for the reversal of the judgment, unless the intendment is clearly repelled by the record. The error must be shown conclusively to be innocuous. (Green v. White, 37 N. Y. 405 ; People v. Gonzales, 35 id. 49 ; Coleman v. People, 58 id. 561, 562; Vanderwort v. Gould, 36 id. 639 ; Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 id. 44, Vicksburg R. R. Co. v. O'Brien, S. C., U. S., Nov. 1, 1886 ; 119 U. S. 99 , 103.) The testimony given "before the grand jury should be sufficient in degree to convict, if unexplained. Upon less than this a bill should not be found. (People v. Baker, 10 How. 567 ; People v. Hyder, 2 Park. 570.) The so-called corroborative testimony must be ■considered of and by itself alone. It must show that the crime was committed, and that the defendant was implicated in it. (Frazer v. People, 54 Barb. 306 ; People v. Hooghkirk, 96 N. Y. 149 ; Roscoe’s Criminal Evidence, 122; Russell on Crimes, 962; Greenleaf on Evidence, § 381; State v. Thornton, 26 Iowa, 80 ; Rex v. Wilkes & Edwards, 7 C. & P. 272; Ormsby v. People, 53 N. Y. 574 ; People v. Courtney, 28 Hun, 593 ; People v. Williams, 29 id. 520; People v. Jaehne, N. Y. O. and T., Barrett, J.; People v. Plath, 100 N. Y. 596 , 597: Greenwood v. Low, 7 La. Ann. 197 ; U. S. v. McLean, 9 Peters [U. S.], 682.) Defendant was a member of a local legislature and exercised his lawful prerogative in voting for thirteen general orders on August 30, 1884. (Cushing on “ The La v and Practice of Legislative Assemblies,” 216, §.530.) The presumption is that no official person, acting under oath of office, will do aught which it is against his official duty to do, or will admit to do aught which his official duty requires should be done. (Mandeville v. Reynolds, 67 N. Y., 534 ; Lazier v. Wescott, 26 id. 146 ; Bank of U. S. v. Dandridge, 12 Wheat. 64 .)
Roger M. Sherman for appellant.
The construction by which the Penal Code is applied to the offense of which defendant stands charged renders the statute repugnant to the Consti
p. 260
tution of the United States (§ 10, art. 1), as an eco post facto law. (People v. Jaehne, 103 N. Y. 182 ; Calder v. Bull, 3 Dall. 390 .) If, in their application to any possible case within, the adjudged construction, these statutes are unconstitutional, they are entirely void, ( Wynehamer v. People, 13 N. Y. 441 ,. 442, 425, 487; Warren v. Mayor, etc., 2 Gray, 97 , 99; Hale ex rel. v. Commissioners, 5 Ohio St. 506 ; Campan v. Detroit,, 14 Mich. 276 ; People v. Tiphane, 3 Park. 241, 246, 247;: Cooley on Const. Lim. [5th ed.], 107.) The consolidation act, passed July 1, 1882, and therefore a “subsequent act” to the-Penal Code, passed July 26, 1881, must not be construed to- “ repeal, alter or amend ” the provision of section 725 of the Penal Code, which continued chapter 335 of 1873 in force. Regarded as an amendatory act, section 728 exerts a legitimate function. No law is ex post facto which mollifies the rigor of the criminal law. (Calder v. Bull, 4 Dall. 390 .)
McKenzie Semple for respondent.
The trial court didnot err in its rulings as to the consideration and effect to be given by the. jury to the testimony of accomplices, (Code of Crim. Pro. § 399; Peoples. Everhardt, 104 N. Y. 591 ; People v. Elliott, 106 id. 288.) The additional evidence in this case tending to connect defendant with the commission of the crime charged was much more than sufficient to satisfy the statutory requirement. (People v. Elliott, 106 N. Y. 288 ; People v. Jaehne, 103 id. 199.) The trial court did not err in allowing the district attorney, upon the challenge of proposed jurors, tomterrogate them touching prejudices against the testimony off accomplices. (People v. Carpenter, 102 N. Y. 228 ; Thompson & Merriman on Juries, §§ 243, 245, subd. 5 ; People v. Chester, 2 Park. 579, Lester v. State, 2 Tex. App. 432 .) But even if it. did. err in this respect, no exception, lies to these rulings of the-court for the reason that such rulings did not relate to jurors who participated in the verdict. (Thompson & Merriman on Juries, 228, 229; Grisson v. State, 2 Tex. App 376 , 378.) The defendant having failed m this case to exhaust all of his-peremptory challenges, cannot be allowed to urge, on appeal,.
p. 261
■any objections to the fairness, impartiality or qualifications ■of any of the jurors who participated in the verdict. (People v. Carpenter, 102 N Y. 238 .) The court did not err in refusing to charge the jury that when a witness is proven, ■either upon the trial of the case pending, or in some other case involving the same subject-matter, to have committed willful perjury, the jury should utterly disregard his testimony. (People v. Sharp, 45 Hun, 467 -469.)

In the case of People v. Jaehne ( 103 N. Y. 182 ), it was held that the crime of bribery committed by a member of the common council of the city of New York, subsequent to December 1, 1882, was punishable under ■section 72 of the Penal Code. This construction necessarily involved the conclusion that section 100 of the'charter of 1873, in force prior to December 1, 1882, being the bribery section ■of the charter, was repealed by the taking effect on that day of the Penal Code, so far as it was in conflict with any of the provisions of section 72. That section increased the punishment for bribery beyond that prescribed by the charter of 1873, ■(chap. 335), and could, therefore, only operate upon the crime ■of bribery committed by a member of the common council, after the Penal Code took effect. Section 72 is not retrospective in its terms, and, according to settled principles, is to be construed as prospective only. If a case should arise where the bribery charged was committed while section 100 of the charter of 1873 was in force, it would be necessary to consider whether such cases were reserved from the operation of the Penal Code. The alternative conclusion would be that the Legislature, in repealing section 100 of the charter, by the enactment of the Penal Code, had inadvertently omitted to except from the operation of the repealing statute cases of bribery committed by municipal officers in New York prior to its enactment. It wifi be time enough to consider the application and effect of the Penal Code upon such cases when occasion arises. Whatever conclusion might be reached ■on this point, section 72 of the Penal Code was, in no sense,

p. 262
an ex post facto law It was a law governing future cases, only, and even if it purported to enact a rule applicable to-past as well as future transactions, it would be void as to the former only. The cases are separable, and it is not the rule that the whole statute falls because one part is unconstitutional and void, unless the void part is so interwoven with the valid part that the parts cannot be separated and the valid part, sustained by itself, without defeating the intention of the legislature.

The difficult question in the Jaehne Case was as to the effect of the consolidation act, which took effect March 1, 1883, after the enactment of the Penal Code. The Penal Code, as was held, repealed section 100 of the charter of 1873, and section 72 became the law for the punishment of bribery, as well in the city of New York as elsewhere in the state. But section 100 was re-enacted as section 58 of the consolidation act. The question was whether the section of the consolidation act, a later enactment than the Penal Code, did not restore the definition and punishment of bribery, as-declared originally in section 100 of the charter of 1873, and in turn repeal section 72 of the Penal Code, as applied to-the city of New York, as the Penal Code had repealed the-provision in the charter of 1873. The court decided that, this result was prevented by section 2143 of the consolidation act, which declared, in substance, that the Penal Code, for the purpose of construing the effect of the two acts, should be deemed the later enactment. The supposed incongruity of inserting in the consolidation act section 58, and then at the same moment making it subject to the Penal Code, thereby superseding it, is more apparent than real. The consolidation act was primarily designed to bring together the local laws relating to the city of New York, the crimes provisions as well as others, but, to avoid conflict with the Penal Code, the crimes provisions in the consolidation act were, in effect, subordinated to the provisions of the Penal Code. It was a precautionary policy, and relieved the authors of the consolidation act and the legislature from the necessity of a careful com

p. 263
parison of the provisions of the two statutes, to ascertain whether they were in any respect in conflict. The suggestion that section 2143 is in violation of section 16, article 3 of the Constitution is without force. The section is germane to the title of the act,' and is not the introduction of a new subject, not within the purview of the act. We perceive no reason in the new suggestions of counsel for changing our conclusion in the Jaelme Oase on the principal point there considered.

There are many questions which have been presented on the argument here in behalf of the appellant, arising on exceptions on the trial. They have been very fully considered in the able opinion of Judge Van Brunt. We concur in the conclusions of the General Term, and shall confine ourselves to a brief reference to some of the questions pressed on our attention. The practice followed in selecting the jury seems to have been that each juror when called was challenged by the district attorney, in general terms, without the assignment of special grounds of challenge, and the juror was thereupon questioned by the district attorney and after-wards by the counsel for the defendant. In the examination by the district attorney, each juror was informed, in substance, that the People proposed to examine as witnesses two members of the board of aldermen of 1884, who had turned state’s evidence, and who, it was supposed, would testify that they were engaged with the defendant in the transaction out of which the indictment arose, and was then asked, in substance, whether he had such a prejudice against persons so testifying as would prevent his giving their testimony such weight as it might be entitled to in law. The defendant’s counsel objected to the question as improper, irrelevant and immaterial. The court overruled the objection, and the defendant’s counsel excepted, and the juror was permitted to answer. Section 376 of the Oode of Criminal Procedure defines as one ground of challenge to a juror, “ the existence of a state of mind on the part of the juror in reference to the case, or to either party, as satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue

p. 264
impartially and without prejudice to the substantial rights of the party challenging.” The range of examination on such a challenge must largely rest in the discretion of the court, and we think it was competent to permit the district attorney to make the assumption stated in Ms question to the juror, and to follow it by the direct inqrnry as to the state of mind in respect to witnesses in the situation of accomplices, with a view of ascertaining whether he would be a fair and unprejudiced juror for the People. This was fairly an examination bearing upon the impartiality of the juror “in reference to the case,” within section 376. A somewhat similar question was considered by tMs court in People v. Carpenter ( 102 N. Y. 238 ). But we think the record shows that the defendant accepted the jurors to whom the question was put, who participated in the verdict, and consented to their sitting. The court was not called upon to decide the challenge in any case except one, and in that case the defendant’s counsel, at the conclusion of the examination, said, “We leave the decision of the challenge with your honor.” The court thereupon overruled the challenge, ifo exception was taken, and the juror took Ms seat. In all the other cases, at the conclusion of the examination, the juror took Ms seat without objection and, apparently, with the acquiescence of both sides. Moreover, when the panel was full, the defendant’s counsel objected to the district attorney being permitted to exercise the right of peremptory challenge, on the ground that the jurors “ having been permitted to take their seats in the box without objection,” the right of peremptory challenge was waived. It is quite clear that the jury selected was satisfactory to the defendant, and that his counsel consented that the persons sworn should act. In the only case where the court ruled upon the competency of the juror, counsel left it to the court to decide, taking no exception.

The exceptions taken' on the trial to the testimony of the witnesses Waite and Alexander were, we think, frivolous. All that was substantial or material in their evidence was proved without objection. Whether Waite visited the

p. 265
office of the Broadway Surface Railroad Company “frequently ” during the summer of 1884 was of no importance, in view of the unchallenged evidence of his intimacy and interviews with the officers of the road during the period in question, and his testimony, given without objection, that he had been in the office of the company. The court confined his testimony, in respect to Maloney, to what Maloney did in pursuance of the agreement in which the defendant was shown to have participated. This was competent, and if the evidence went beyond this, it is sufficient to say that it was not objected to. The objection to the question put to the witness Alexander, “ "With whom, personally, did you negotiate the .settlement of the Liddy suit,” was after he had testified without objection to the fact that he had negotiated the settlement with the plaintiff or his attorney, and after it had been proven that that suit had been settled. The question objected to was, under these circumstances, unobjectionable. The court properly admitted the evidence of the acts and proceedings of the board of aldermen, in which the defendant participated subsequent to August 30,1884, and the testimony ■of the witness Metz as to the meetings at McLaughlin’s house. They threw light upon the prior conduct of the defendant, and tended to confirm the evidence of the accomplices, and to show that the defendant’s vote on the thirtieth of August, was in fulfillment of the corrupt agreement charged in the indictment. It was not legal error to overrule the question put to the ■defendant, as to his object and purpose in voting against the rescission of the grant of August 30,1884. He was permitted ■to state the reasons which induced him to vote in favor of granting the franchise, and this was the material point. It would not have strengthened his position to have allowed him to show that his subsequent action in voting against the revocation of the grant was innocent also. Presumably the same motives governed his action in both cases. The refusal of the court to charge that if the jury should find that the witnesses Fullgraff and Duffy had in the testi
p. 266
mony before the senate committee, in respect to the same matters, committed willful perjury, the jury should wholly disregard their testimony given on the trial, raises a question,, which, prior to the enactment of section 714 of the Penal Code, was open to doubt under the decisions in this state.. The cases were fully reviewed in Deering v. Metcalf ( 74 N. Y. 501 ), and the question was again referred to in the-recent case of People v. Petmecky ( 99 N. Y. 421 ). Under the Eevised Statutes (2 R. S. 681), a person convicted of perjury was not permitted to be a witness in any cause or matter until his conviction was reversed. While this statute .was in force there was much reason certainly in the contention that where a witness, by his own confession on the stand,, in presence of the jury, admitted that he had willfully perjured himself on a former occasion in respect to the same-matter, his testimony ought to be wholly disregarded to the same extent as though his perjury had been judicially established by conviction. But now, by section 714 of the Penal Code, no conviction for crime disqualifies a witness, and the-section expressly makes a person convicted of crime, not-excepting perjury, a competent witness in any cause or proceeding, civil or criminal, but allows the conviction • to be proved for the purpose of affecting the weight of his testimony. It would be manifestly absurd, in the light of this statute, now to hold that an unconvicted perjurer was an incompetent, witness whose evidence could not be considered by the jury, when, under the statute, if he had been convicted, his evidence must be received and weighed by the jury. In view of the present statute, whatever doubts may have heretofore existed, the true rule is that stated by Judge Deuio in Dunn v. People ( 29 N. Y. 529 ), and which was followed on the trial of this case, that the testimony of a witness who-has committed perjury in the same matter on a prior occasion, whether the perjury is established by a conviction or by his-confession, or is found by the jury, “ must be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court, and
p. 267
subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence.” The request to charge was, therefore, properly denied. The point that the testimony of the accomplices • Fullgraff' and Duffy was uncorroborated by “such other evidence as tends to connect the defendant with the commission of the crime,” as required by section 399 of the Code of Criminal Procedure, is fully answered by our decision in the Jaehne Case. Proof of the corpus delicti was, in this case, the same thing as proof of the defendant’s connection with the crime. The one could not exist without the other. There was evidence, we think, in the testimony of the defendant’s connection with the transactions under investigation, corroborative of the story of the accomplices. The fact that Katie Metz did not. recognize the defendant in the elevator was properly left to ■ the jury upon the question of her credibility, and there was no error in the refusal of the court to charge upon that subject in the language used by the defendant’s counsel. There are some other questions, but it is unnecessary specially to refer to them.

We find no error in the record, and the judgment should,, therefore, be affirmed.

All concur.

Judgment affirmed.

Cases cited