People v. McLaughlin

The appellant was indicted for bribery, and ■also for the crime of extortion. The indictment contained five counts. The first four were for bribery and the last for extortion. He was arraigned upon this indictment ■and pleaded not guilty. Afterwards he was brought to trial thereon at an Oyer and Terminer held in and for the city and county of Hew York for the crime of extortion only. The trial commenced April 15th, 1895, and continued until May 11th, 1895, when the jury, being unable to agree, was discharged. The court then set the case down for a second trial, to commence on the twentieth of the latter month.

On May eighteenth the appellant served upon the district attorney notice of an application to remove the action before trial, to be heard at a Special Term held in and for the city and county of Hew York on the third day of June, 1895. The motion was upon the ground that the appellant could not obtain a fair and impartial trial in the city and county of Hew York. It was based upon the affidavit of the defendant, and voluminous papers attached to and forming a part of such affidavit, which tended to show the existence of a general prejudice against the defendant, and that he could not obtain a fair and impartial trial in the city and county of Hew York. There is nothing in the motion papers or record to indicate that the motion was not made in good faith, or that the defendant was guilty of any laches in making such application-Indeed, considering the volume of papers and their contents, it is evident that the defendant proceeded with diligence and in good faith.

The defendant also obtained from a judge of the Supreme Court an order, staying the proceedings upon the indictment until the hearing and determination of his application.

This order was based upon an affidavit of the district-attorney, which, without denying any of the facts set forth in the affidavit of the defendant and the accompanying papers, stated what proceedings had already been had in the action, that he believed a postponement of the trial would prejudice the public interests, and that he would be ready to proceed with the argument of the motion to remove the action before trial on the twentieth of May at eleven o’clock, a. m.

At the time mentioned in the show cause order, the defendant appeared specially for that purpose, and filed objections to the hearing of the motion, which, among others, were that the proceeding for the change of the place of trial was a special proceeding under the statute and that the Supreme Court had no power or jurisdiction over it, except such as is given by statute; that the order made by Mr. Justice Andrews-was null and void; that he had no power or jurisdiction to make it; that the defendant desired to serve other papers to-be used on the application to change the place of trial that were not, and could not have been previously prepared; that his counsel could not be present as he was engaged in the argument of cases in the Court of Appeals, and several other grounds apparently sufficient to show that the motion could not be properly made at that time. The defendant then asked to postpone the hearing of that motion owing to the absence of his counsel. This the court denied. It then directed that the motion on the order to show cause should proceed. The court immediately ordered the defendant to make the motion to change the place of trial then and there. This he declined to do, insisting that he had the statutory right to have it heard

Immediately after the entry of the order granted by the Special Term, the court of Oyer and Terminer, which had been awaiting the result of the People’s motion, ordered the second trial of this action to proceed. Thereupon, before any proceedings were had in the action, the defendant called the attention of the court to the motion papers and stay of proceedings which had been indorsed thereon and filed on the preceding Saturday, and objected to the court’s proceeding with the trial of the action because that application was pending, and the trial stayed. A certified copy of the order of the Special Term was then procured and filed, and thereupon the defendant’s objections were overruled, to which he duly excepted. The defendant’s counsel then objected to proceeding with the trial upon the ground that the order of the Special Term was illegal and void; that the court had no power to grant it; that the stay of proceedings was in full force and effect, and that the court had no jurisdiction to proceed with the trial in violation of such stay or to deprive the defendant of his statutory right to have his application for a change of the place of trial heard and determined as provided by law. The court overruled these objections and the defendant excepted.

The defendant then moved for a postponement of the trial because his senior counsel was engaged in the Court of Appeals and read an affidavit in support of that motion. The facts stated in that affidavit were not denied or contradicted,

After the jury was selected, but before the case was opened or any evidence given, the defendant’s counsel again moved to discharge the jury and postpone the trial on the ground that proceeding with the trial was in violation of the stay, in derogation and denial of the defendant’s right to make an application to change the place of trial; that the order of the Special Term made May twentieth was without jurisdiction and in violation of the defendant’s right, and gave no authority to the Oyer and Terminer to violate such stay or proceed with the trial, and that an appeal from such order was pending and no further proceedings should be taken in the action until the hearing and determination of that appeal. The court denied that motion and the defendant excepted.

The appellant’s first contention is that upon the reversal of the order of the Special Term, the Appellate Division should also have reversed or set aside the intermediate trial and proceedings which resulted in the defendant’s conviction. The Appellate Division unanimously reversed the order, not only to the extent that it denied the defendant’s motion to change the place of trial, but also, so far as it set aside the stay of proceedings. From that order no appeal has been taken to this court, except so far as necessary to a review of its propriety in not setting aside the proceedings and trial, which took place intermediate the time when such order was granted and when it was reversed.

The appellant had a right to apply for a removal of the action to another county before trial, upon the ground that a fair and impartial trial could not be had in the city and county

As they stood at the time of the trial, so far as material, they were as follows : “A criminal action, prosecuted by indictment, may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases : * * * 2. From a court of oyer and terminer or sessions, or a city court to the court of oyer and terminer of another county, on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending.” (§ 344.) If a former' trial has been had, the indictment may be removed before a new trial. (§ 345.) “ The application for the order of removal must be made to the supreme court at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.” (§ 346.) ' “ To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided.” (§ 347.)

That the right thus given is a substantial one and has always been regarded as of great importance to a defendant, is manifest not only from the time it has existed, but also from its paramount necessity to fairly protect his just rights and interests. The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury, is a fundamental principle of criminal jurisprudence. For the protection of persons accused of crime,

Under the statute, the defendant had an absolute right to apply to the Supreme Court for a removal of the action before trial upon the ground relied upon. Of this he has been deprived. Having thus been deprived of a substantial right, and the district attorney having proceeded with the trial of the indictment which resulted in the defendant’s conviction, in defiance of such right, we are unable to perceive any proper ground upon which the action of the Appellate Division can be sustained, so far as it failed to set aside the proceedings and trial, and thus accord to the defendant the benefit of this statutory remedy.

The learned district attorney, when he insisted upon proceeding with the trial in total disregard of this right, did so at his peril, 'although he first obtained an improper and irregular order, in form, setting aside the defendant’s application and stay. When that order was reversed, the logical result of the decision was to invalidate the proceedings intermediate the order and its reversal. That such a result would necessarily follow seems obvious, and the district attorney must have understood that the regularity of the trial was dependent upon the validity of the order of the Special Term.

In this case the right to apply for a change of the place of trial was valueless without a stay. The stay was as important as the right to apply for a removal of the action. The latter right is absolute, while the former is dependent upon the discretion of a judge. Still each is so dependent upon the other as to indicate that the purpose of the statute is that, subject to the discretion of a judge, the stay shall also be absolute. It could hardly have been the intention of the legislature to do a useless thing by granting a defendant the right to make an application to remove an action and apply for a stay, and still permit it to be rendered ineffectual in the manner pursued in this case. Manifestly, the purpose of this statute is to give a defendant the right to make an application for a stay, and if cause is shown which the judge in his discretion regards as

“ The general rule is that a party cannot appeal from one judge to another of co-ordinate jurisdiction, by motion for relief, from an order or judgment against him, but must seek his remedy by appeal to a tribunal having appellate jurisdiction in the premises.” (Kamp v. Kamp, 59 N. Y. 212 , 215 ; Matter of N. F. & W. R. Co., 121 N. Y. 319 .) If this were a proceeding in a civil action section 772 of the Code of Civil Procedure might be sufficient to authorize the court to vacate or modify the order. But it was a proceeding in a criminal action, and by virtue of the provisions of section 962 of the Code of Criminal Procedure is regulated by that Code and not by the Code of Civil Procedure. That section provides : “ This Code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for, from the time when it takes effect.” The right of removal of criminal actions before trial and the procedure to be adopted are provided for and regulated by the Code of Criminal Procedure. The Code of Criminal Procedure further declares that, “ The only mode of reviewing a judgment or order in a criminal action, or special proceeding of a criminal nature, is by appeal.” (§ 515.) That section is applicable to judgments, orders and special proceedings which are provided for in the Code of Criminal Procedure. (People ex rel. Taylor v. Forbes, 143 N. Y. 219 .) That being the case, we think it doubtful if one judge of co-ordinate jurisdiction is authorized to vacate or interfere with such an order made by another. Where such an application is made before a court presided

If, however, an application had been made to the judge who-granted the order, perhaps he might have had authority to vacate or modify it on the ground that, as the statute conferred upon him the power to grant it in his discretion, it also-contained an implied authority to vacate or modify it. Indeed, that appears to have been the opinion of the learned district attorney, as he subsequently applied to Judge Pbatt to-vacate the stay, which was denied. In this case the judge-who granted the stay provided in the order that the People-might be heard upon the question of its propriety. But instead of availing himself of that provision, the district attorney instituted a proceeding before another judge, which proceeded with severe and surprising celerity and resulted in a-denial of the defendant’s rights.

The manifest purpose of the statute was to insure the-defendant an opportunity of having his application heard before trial, provided a judge of the Supreme Court should, in the exercise of his discretion, grant a stay. By another section of the Code of Criminal Procedure a certificate of reasonable doubt by such a judge operates as a stay of proceedings-upon appeal. (§ 527.) Can it be that where such a certificate is granted, a Special Term has jurisdiction to set it aside * If not, can it be held that it had jurisdiction to set aside the discretionary stay granted in this case % The purpose of the two provisions is similar. One is to provide for a stay until an appeal can be heard and decided. The other is to provide fora stay until an application can be made and determined.

But it is unnecessary to further discuss the validity of that order, as the Appellate Division held it to be improper and reversed it. As that decision is not appealed from, it must be regarded as final on this appeal, and cannot be reviewed by this court, except to determine whether upon its reversal the

The record fails to disclose any reason for the omission of the Appellate Division to grant the defendant the relief to which he was apparently entitled, but the opinion shows that it was not because of the insufficiency of the papers upon which the application was made. That court, in effect, said that the papers were such as to call for serious and careful consideration ; that many of them were undoubtedly of great force and might well have led the defendant to believe that it was doubtful whether an impartial jury could be procured to try his case within the county of Hew York; and that they were such as called upon the court to whom they were presented to carefully weigh and consider them, if it did not call upon the People to answer or. explain them. It then said: “ It is apparent from the papers that no such consideration was had.” After having, in effect, held that the application of the defendant was proper, that the defendant was not guilty of laches, that it was made in good faith and upon papers which required the deliberate consideration of the court, and that the defendant was deprived of such a consideration for which the order should be reversed, it then held that the defendant had no reason to complain because the case was tried before an impartial jury. How that fact was ascertained it is impossible to determine. There is nothing in the record from which such an inference can be properly drawn. It may well be that, so far as could be discerned from the record, the jury might have seemed to be an impartial one, and yet the defendant have fallen far short of having a fair and impartial trial.

That jurors are sometimes prejudiced, and courts may be unconsciously biased to the injury of one of the parties, must be admitted. Prejudice is often an insuperable barrier to the fair and impartial administration of the law. Its influence is subtle, insidious and often unconsciously warps the judgment and blinds the intelligence of those surrounded by its atmosphere. But its presence can usually be discovered only from

The papers in this case disclosed that, upon the first trial, it required three weeks to obtain a jury; that its deliberations were attended by unusual excitement and even by passion ; that those voting for acquittal were threatened with imprisonment by their fellows; that it was reported that after their discharge their intelligence, honesty and motives were assailed in public meetings and by the clergy, and that the public press joined in an attack upon such jurors and upon any prospective jurors who should so vote upon a subsequent trial. These facts, and many others, are set forth in minute detail in the papers upon which the defendant made his application. They are undenied, and, hence, upon this appeal must be regarded as true.

With the condition of affairs set forth in the moving papers, it was impossible, we.think, for the learned Appellate Division to properly determine that the defendant’s second trial was fair and impartial. We are unable to discover any process by which that court could determine that there was not an

The appellant also contends that the court erred in its rulings upon the trial of challenges to jurors: First. In improperly rejecting individual jurors upon the ground of a lack of intelligence, by reason of their failure to sustain certain novel and extraordinary educational tests invented by the prosecution; Second. That jurors were improperly rejected for alleged bias; Third. That disqualified and biased jurors were accepted and participated in the verdict; Fourth. That disqualified and biased jurors were accepted, and the defendant was required to use his peremptory challenges to exclude them from the jury; and, Fifth. That valid exceptions to the-decisions of the court were taken to the admission or rejection of testimony on the trial of challenges for actual bias to-jurors who participated in the verdict.

In passing,' however, it may be said that the tests employed by the district attorney for the alleged purpose of determining the intelligence of jurors were unusual, if not extraordinary. An examination of the record discloses that the questions asked the jurors were involved, complicated and ■couched in language difficult to be understood by persons who were not educated in the law.

"While we deem it unnecessary to determine the question whether the tests thus employed raise a question of law for this court to decide, or whether the trial court by reason of such tests illegally rejected jurors who should have been permitted to act, yet, we think the employment of extraordinary ■educational tests in the examination of jurors is not to be encouraged. We deem it better that the ordinary procedure in such cases be followed, as a departure from it might lead to errors which would invalidate the trial.

The appellant also urges that the indictment in this case was insufficient, and for that reason the court ought to have ■dismissed it and discharged the defendant. As we have .already seen, the indictment contained five counts, four ■charging the defendant with the crime of bribery, and the ■fifth with the crime of extortion. Upon the first trial, the district attorney elected to present the case to the jury upon the fifth count of the indictment alone. On the second trial, before the case was opened, the defendant’s counsel moved to dismiss the indictment and discharge the defendant upon the ground that the fifth count was insufficient because it did not

While an indictment must contain every essential element of the crime charged, and the charge must be made directly and not inferentially, yet, under the circumstances of this case, we are of the opinion that the court had the right, especially upon the consent of the defendant, to retain the first four counts for the purpose of explaining the reference contained in the fifth count, and that when retained for that purpose the indictment was sufficient.

The facts in this case are unlike those in the case of People v. Werbin ( 27 Hun, 311 ). In that case the indictment contained three counts, and after the jury had retired a nolle prosequi was entered upon the first and second counts, whereupon the counsel for the defendant moved for his discharge upon the ground that the third count was insufficient. The motion was denied and an exception taken. The G-eneral Term held in that case that the effect of the nolle prosequi was to strike out the first and second counts, and they became extinct, and as the third was insufficient it was error to deny the defendant’s. motion. In this case the People elected to submit the case to the jury upon the fifth count alone, and, with the consent of the defendant, the preceding counts were retained for the purpose of reference. On the subsequent trial the court refused to strike out the preceding counts, but retained them to explain the reference contained in the fifth count. We think the court had the power to retain such portion of the preceding counts as was necessary to explain the reference contained in the fifth count, and that it properly

The appellant further insists that the court erred in allowing the People to prove facts relating to other distinct and disconnected crimes as circumstances from which the jury was permitted to draw an inference that the defendant was guilty of the crime charged in the indictment. The last count of the indictment • was for extortion from Francis W. Seagrist, Jr., of the sum of fifty dollars on November 21, 1891. To maintain the action it was necessary for the People to prove that the defendant had obtained the money from Seagrist with his consent, induced by a wrongful use of force or fear, or under color of official right. Fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened. (Penal Code, §§ 552, 553.) On the trial there was no evidence that the defendant had made any threat whatever to Seagrist, or that any money was paid by him to the defendant at the time or in relation to the transaction alleged in the indictment. The evidence of Seagrist was to the effect that he had paid fifty dollars to the defendant, or to Burns, but he was unable to testify to which one lie paid it. Thus, upon the evidence of Seagrist, there was no direct proof that the defendant had either made the threat, received the money, or had any connection whatever with the crime for which he was indicted and tried. The People sought to overcome this defect by charging the defendant as a principal under the provisions of section 29 of the Penal Code. The prosecution attempted to establish the defendant’s guilt on the theory that, although he neither made the threat nor received the money, he nevertheless aided or abetted Burns in the commission of the crime, or directly or indirectly counseled, commanded, induced or procured him to commit it. To establish that fact the People were permitted to prove circumstances

The case was submitted to the jury upon the theory that it might consider those transactions for the purpose of establishing “ a criminal agency ” on the part of the defendant and thus render him a principal under the provisions of section 29 of the Penal Code. The judge’s charge was to the effect that if they found or inferred from the evidence as to other transactions that there ivas a concert of action between Burns and the defendant in regard to them, they might then infer a like concert of action in respect to the crime charged in the indictment. Thus the question is presented whether a person may be indicted and convicted as a principal for a crime he

The foregoing authorities not only establish the rule above ■stated, but also practically determine what exceptions there are to it.

There is, we think, a clear and important distinction between allowing evidence of the commission of another crime to show motive, intent or guilty knowledge, or where the crime proved is an incident to, a part of or leads up to the crime with which a defendant is charged, and a case where the crime proved is entirely independent of and disconnected with the crime alleged in the indictment.

We do not think the cases of People v. McKane or Hester v. Commonwealth ( 85 Penn. St. 139 ) are in conflict with the principle stated. The Hester case is unlike the case at bar. There the People proved by direct evidence a conspiracy which included the offense for which the defendants were tried. In the case at bar, the People endeavored to establish the existence of a criminal conspiracy by proof of other distinct and separate transactions.

It is possible that the prosecution was properly allowed to introduce evidence as to the commission of other similar offenses or of similar transactions with Seagrist, as evidence

The court also permitted the witness Gralligan to testify to a conversation which occurred in November, 1891, between himself and the defendant, and also a transaction which occurred between himself and Burns. He testified : “ I believe Burns said something about dirtying the streets, and that the captain wanted to see me at the station house, and I had better go down. I went down with Burns to the station house, and when I went in on the floor the captain was standing there, and Burns said to the captain: ‘ Here is the man that is digging out at the corner of Fulton and Nassau streets.’ Then the captain said to me : ‘ Do you think that you can come down to this precinct and do as you please % ’ I said: No, I do not intend to come down and do as I please. What do you mean ? ’ He said : * You came down here, and you filled up Burling Slip with that old rubbish in your building, and I have had all the merchants and everybody pounding me and running in here. I will arrest every cart of yours that scatters any dirt on the street. I will lock them up.’ Then we had it pretty hot there, right and left, on the floor. I can’t remember the conversation. I went out and met Burris on the street. Then we walked along to Fulton street, back again to the job, and Burns asked me what I was going to do about it. I said I was going to headquarters and see if he could interfere with me

On the cross-examination the witness testified: “I do not mean that Captain McLaughlin made any demand on me for any money. Nothing of the kind from him. No intimation of anything of the kind. The captain said merchants had been finding fault; that I was not to be allowed to scatter dirt upon the streets from my carts. I know it is a rule or ordinance here that carts are not permitted to drop dirt in the streets. I guess the captain meant to require me to obey the laws and ordinances in that respect. I did not see or observe anything showing that the captain had any knowledge of this demand that Burns made upon me. Burns did not ask me to pay anything for Captain McLaughlin. He did not mention his name in connection with it.”

At the close of the People’s case the defendant moved to strike out this testimony. The motion was denied, and the defendant excepted. This evidence was also submitted to the jury as evidence bearing upon the question of a conspiracy or joint action between the defendant and Burns, and to show that, under section 29 of the Penal Code, the defendant was guilty of the crime charged in the indictment, although the money was not paid to him but to Burns. The charge in that respect was excepted to, and there were many other exceptions to the admission of the evidence and to the language employed by the judge in charging the jury upon this subject, which cannot be examined in detail within the proper limits of this opinion. It will be seen from an examination of the

The charge of the learned trial judge seems to indicate that he entertained the opinion that what he denominated “ criminal agency ” could be established in the same way, and by the same species of evidence, as may be employed in a civil action to establish the relation of principal and agent in favor of third persons. We think no such rule exists. We find no principle of criminal law which recognizes the relation of principal and agent in the sense in which the term is used in reference to business or commercial transactions. It is true that in civil actions upon contract, the course of dealing between parties may be proved to establish a "general agency, but that principle has no place in criminal jurisprudence. From such evidence in civil actions a presumption is raised that the relation shown to exist in other transactions continues, or an estoppel is created which prevents the principal from denying the agency, and hence is presumptive or conclusive evidence of that fact. Ho such presumption or estoppel arises in a criminal case. There the presumption is of innocence, and the doctrine of estoppel has no application.

Manifestly, this evidence was not admitted to prove guilty knowledge, intent, motive or notice, nor did the transactions thus proved have any relation to or connection with the transaction upon which the indictment was based. They were entirely distinct and separate, had with other persons, at other times, under different circumstances, and constituted different crimes. They formed no link in the chain of circumstances or facts which led up to the transaction involved, and were no part of it. We think this evidence did not fall within any exception to the general rule, and was, therefore, improperly received.

Without further discussion of this question, we are of the opinion that the evidence as to other transactions in the

On the trial, after the Avitness Seagrist had testified as to the transaction which took place between him and the defendant, and stated that it Avas upon Saturday, November 21,1891, and two other papers had been admitted in evidence to show that that was the date of its occurrence, the court permitted the People to read in evidence a memorandum taken from the cash book of the witness which was as folloAvs: “November 21,1891. Material. Paid to McLaughlin for protection, per Sergeant Burns, Ordinance officer, $50,” and thereupon the book was exhibited to the jury. Tbie witness could tell neither from his recollection nor from this memorandum whether the fifty dollars referred to was j>aid to the defendant or whether it was paid to Burns. This book Avas submitted to the jury as proof in the case, not to establish time but as independent evidence of the matters stated therein.. An original entry or a memorandum made by a Avitness at the time of a transaction, is admissible in evidence as auxiliary to his testimony, only when without its aid he is unable to distinctly recollect the fact to-which it relates. The evidence is admitted only as a matter of necessity. Where the witness has a distinct recollection of the essential facts to which the entry relates, so that primary common-law proof may be furnished, the necessity for secondary evidence does not arise and it is incompetent. (Nat. Ulster County Bank v. Madden, 114 N. Y. 280 ; Bank of Monroe v. Culver, 2 Hill, 531 ; Cole v. Jessup, 10 N. Y. 96 ; Halsey v. Sinsebaugh, 15 N. Y. 485 ; Russell v. H. R. R. R. Co., 17 N. Y. 134 ; Guy v. Mead, 22 N. Y. 462 ; Squires v. Abbott, 61 N. Y. 530 , 535; Howard v. McDonough, 77 N. Y. 592 ; Peck v. Valentine, 94 N. Y. 569 ; Mayor, etc., v. Second Am. R. R. Co., 102 N. Y. 572 , 580; Brown v. Jones, 46 Barb. 400 ; Meacham v. Pell, 51 Barb. 65 ; Kennedy v. O. & S. R. R. Co., 67 Barb. 169 ,182.)

Applying to this question the rule established by the cases

There are many other exceptions in this case which present questions both interesting and important, but it is quite impossible, within the limits to which this opinion should be confined, to discuss them all. As the attention of the parties lias already been called to them by the arguments and briefs of counsel which have been made and submitted upon the appeals in this case, presumably any errors presented by these exceptions will be avoided upon a retrial, and no further discussion of them at this time is deemed necessary.

These considerations lead to the conclusion that the order appealed from should be modified by providing that all proceedings after the motion papers to change the place of trial and the stay granted by Judge Pratt, were served, be sot aside, including the trial and judgment, and judgment of the Appellate Division affirming the judgment of conviction, and that the defendant have leave to renew his application for a change of the place of trial upon the papers already served, and such additional papers as he may serve at least ten days before the time for the hearing of such motion, and that such motion may be brought to a hearing before a Special Term held in and for the city and county of Hew York upon ten days’ notice by either party; that the stay be continued until

All concur, except that as to the admissibility of evidence of other transactions Andrews, Oh. J., Bartlett and Yann? JJ., express no opinion; and Gray, J., dissents, except as to sufficiency of indictment.

Judgment accordingly.