People v. Duffy

The defendant, who was a police sergeant, was indicted for, and convicted of, the crime of bribery in receiving a bribe or collecting “ hush money ” from one Eoth as a consideration for allowing the latter to maintain "in the city of New York a gambling resort in defiance of the law. Although the defendant both by his-own testimony and otherwise denied the charge, the evidence as a whole presented for the jury a fair question of

The first contention is that the term of court at which the defendant was tried and convicted was not legally convened and organized, and the second one is that evidence was improperly received tending to show the commission by the defendant and another of other similar crimes. These contentions will be considered in the order stated.

In November, 1912, the justices of the First Appellate Division concededly in accordance with law appointed a series of trial terms of the Supreme Court to be held in and for the county of New York, and amongst them a term commencing on the first Monday in June, 1913, and duly assigned Mr. Justice Page to hold said term. There is no question that a list of these appointments was duly filed with the secretary of state and a copy thereof published as required by section 33 of the Executive Law.

Thereafter, also concededly in accordance with law, said justices designated Mr. Justice G-off in the place of Mr. Justice Page to preside at said term of court. The justice so last designated duly convened the court and held the same until June 12th when an order was entered on the minutes of the court adjourning the term without day. June 18,1913, the justices of the Appellate Division made a new order, a copy of which is not printed in the record, but by which it seems permissible to assume that they appointed a new Trial Term commencing Monday, June 23d, and assigned Mr. Justice Seabury to hold the same. It was at the term commencing on the last-mentioned day that the defendant was tried and convicted and the complaint against the legality of the term seems to be confined to the assertion that it was not lawfully held because no notice of the appointment of said term was or could be published once a week for three consecu

It seems to be assumed by the defendant’s counsel that the justices of the Appellate Division did, and had the right to, appoint this as a new term of court under section 84 of the Judiciary Law (Cons. Laws, ch. 30), which provides: “The justices of the Appellate Division in each department may fix the times and places for holding special and trial terms therein, and assign .the justices of the departments to hold such terms * * *; and may from time to time make additional appointments and designations, or change or alter those already made.

“ The justices of the Appellate Division in the first department shall on or before the first day of December in each year, fix a time and place for holding special and trial terms of the Supreme Court in the first judicial district, and assign the justices to hold the same, such designations to be filed in the office of the secretary of state.”

We do not think that the objection to the legality of this term is well founded for various reasons.

Tn the first place, there does not appear to have been any omission to comply with the terms of the statutes governing the subject. Section 33 of the Executive Law only, and of necessity, requires publication of a “ copy of an appointment ” which by law is filed with the secretary of state. Section 84 of the Judiciary Law requires the filing in the office of the secretary of state of “ such designations ” as said section requires the justices to make on

But if it should transpire that through failure to discover some other applicable statutory provision there is some flaw in this answer to defendant’s contention, another effective one may be made on the broad merits of the proposition which he argues.

The defendant was not indicted at the term of court referred to, but at a preceding term, the legality of which is undisputed. He had timely notice of the term at which he was tried, and there is no doubt that the jury before whom he was tried was selected from a panel summoned under and in accordance with the provisions of a valid statute. The court itself was appointed by the Appellate Division which had power to appoint it, and all of its proceedings were conducted in accordance with the due forms of law as prescribed by the Constitution and by the statute. It is not claimed that the defendant’s rights were in any manner diminished or prejudiced by the alleged omission of which he complains, and under such circumstances his objection of a purely technical nature and outlining no real harm to him, even if otherwise well made, will not be upheld for the purpose of reversing the judgment. (People v. Youngs, 151 N. Y. 210 ; People ex rel. Weick v. Warden, 117 App. Div. 154 ; affirmed on opinion below, 188 N. Y. 549 ; People v. Sullivan, 115 N. Y. 185 ; People v. Borgstrom, 178 N. Y. 254 ; People v. Ebelt, 180 N. Y. 470 .)

We next proceed to the consideration of the other error alleged by the defendant, that evidence of the commission of other crimes by him, as well as by another person, was improperly admitted. The evidence thus referred to was of very substantial importance, and if it was improp

The facts necessary for the consideration and determination of this assignment of error are as follows:

The indictment charged defendant with collecting a bribe on or about September 3, 1912, from one Eoth, as a consideration for unlawfully allowing him to maintain a gambling house, and subsequently by amendment this date was changed to September 10, 1912. The gambling rooms maintained by Eoth were at all times situated in the sixth inspection police district. Prior to July 1, 1912, they were also located in the forty-third police precinct, but on said last-mentioned date they became included in a new precinct defined as number thirty-seven. The defendant was a sergeant of police assigned to duty in this last precinct. During most of the time covered by the evidence one Fox was a patrolman assigned to duty in the earlier forty-third precinct.

Evidence was received, the competency of which cannot be seriously challenged, that at about the date when the creation of the new precinct became effective, defendant sought an interview with Fox and asked him for a list of the places from which he had been collecting, telling him that he was going to collect from them in the future. The defendant said to Fox: “I want a list of the places from which you have been collecting from, that were formerly in the forty-third precinct, that go into the new thirty-seventh precinct; I want the names of the persons from whom you received the money; I want the time that you receive it and the amount;” that he wanted this information because he was going to collect from them in the future. Fox gave him the list of places with names and details as requested, and the defendant wrote them down in a memorandum hook. This list comprised the names or (Resignations of six individuals with the location of their respective “places” and the respective amounts and monthly dates of collections made from

In addition to this evidence, and as of importance in the consideration especially of that relating to the antecedent payments to Fox, testimony was given that every one of these individuals either at or before the time when he made his first payment to defendant, was notified in substance either by Fox or by the defendant himself that the latter in respect of these collections was to take Fox’s place; the witness was “ transferred” by Fox to defendant, or told that Fox was not coming around any more, and that Duffy would come around after that and to “ take care of him.”

In the light of this other evidence I think it was perfectly proper to give evidence of the prior collections made by Fox if it was proper to give evidence of other collections by defendant than the one charged in the indictment. This -evidence, in the light of the testimony concerning the change in precincts, of defendant’s request of Fox for a list of the collections which the latter had been making while the old precinct continued, and that the defendant was to become the successor of Fox in making these col

. Therefore, we come to the underlying question whether it was proper to prove the commission by defendant of other crimes in the collection of bribes than the one for which he was indicted.

It is well established as a general rule that evidence • may not be given to show that a person on trial for one crime has committed other ones. The fundamental application and purpose of this rule is to forbid and prevent the conviction of an accused person for one crime through proof that he had committed. other ones, where- ■ from the inference might be drawn that because he had thus committed other offenses he was more liable to commit the one in question. (People v. Shea, 141 N. Y. 78 , 98.)

But as is to be expected in the case of any general rule, universal application has not prevailed, but exceptions have been engrafted which do permit evidence of the commission by the accused of other crimes than the one for which he is being tried. Some of these exceptions are familiar and they will not be enumerated. The • one claimed to be applicable to this case is less familiar. It permits proof of a plan or scheme to commit a series of crimes including the one for which the accused is being tried, and as tending to show the existence of such plan

Fox for months had been systematically collecting bribes or “hush money” from a lot of keepers of disorderly resorts which included Eoth and the three witnesses whose evidence has been criticised. The resorts kept by these people were transferred into a new precinct where defendant was on duty, and coincident with this transfer he asked Fox for a list of people from whom collections had been made and announced his purpose and plan thenceforward to collect from them. This list included the complaining witness and the witnesses in question, and the evidence discloses him thenceforth as actually engaged in making monthly collections from the latter which are contemporaneous with, and in every respect similar in nature and purpose to the collection which he is charged in the indictment with having made from Eoth.

Measured by the tests of ordinary experience and common sense, there cannot he any doubt that this evidence that the defendant was collecting bribes of certain lawbreakers in his precinct in connection with the other supplementary evidence which was produced tended to establish a systematic plan for the collection of graft which would naturally include Eoth who, at the same time in the same quarter and under the same circumstances, was

The force and competency which reason and ordinary logic thus give to this evidence are, I think, fully sustained by the authorities. (Wigmore on Evidence, sections 102, 301; Horton’s Criminal Evidence [9th ed.J, sects. 32 and 38; Commonwealth v. Blood, 141 Mass. 571 , 575; State v. Schnettler, 181 Mo. 173 , 189,190; People v. Molineux, 168 N. Y. 264 , 291, 305, 306; People v. Dolan, 186 N. Y. 4 , 10.)

See, also, as tending less directly to support the admission of such testimony, Commonwealth v. Scott ( 123 Mass. 222 , 236); Hester v. Commonwealth ( 85 Penn. St. 139 ); Rex v. Fisher (L. R. [1 K. B. 1910] 119,152); Rex v. Ball (L. R. [App. Cas. 1911] 47).

Wigmore states the rule: “ The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. A plan is not always carried out, but it is more or less likely to be carried out. The existence of the plan is always used in daily life as the basis of an inference to the act planned.” (Section 102.) :c When the very doing of the act charged is still to be proved, one of the evidential facts receivable

In the Molineux case, Judge Werner writing concerning the general rule excluding evidence of the commission of other crimes than that with which the accused is charged and recognizing the exceptions to the rule specified as one of these exceptions evidence of a common plan or scheme, thus says: “It sometimes happens that two or more crimes are committed by the same person in pursuance of a single design or under circumstances which render it impossible to prove one without proving all. To bring a case within this exception to the general rule which excludes proof of extraneous crimes,. there must he evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of a general and composite plan or scheme, or they must be so related to each other as to show a common motive or intent running through both.” And he quotes with approval Underhill on Criminal Evidence to the effect that “ generally, when several similar crimes occur near each other, either in time or locality, as, for example,

In the Dolan case, where the defendant was on trial for uttering a forged note, evidence was permitted of the utterance by him of a series of other notes, and Judge Werner again writing said in reference to this evidence: “There is also another ground upon which the evidence was competent. All the notes referred to in the evidence were made at about the same time. In each case they were made payable to the defendant and indorsed by him. During the period covered by all the notes the defendant was endeavoring to raise sufficient funds to meet his obligations, and in each case he used the name of some builder with whom he had done business and with whose affairs he was familiar. This combination of circumstances was sufficient to establish a common plan and identity of method so connected as to have a strong tendency to overcome any claim of innocent intent in the uttering of the note charged in the indictment. The evidence bearing on these other notes served to show that the defendant was endeavoring to meet his obligations as they became due, by making a fraudulent and intentional use of the names of contractors with whom he had business relations. The same general features were present in all of the transactions which seem to have been the product of one general scheme. These facts and circumstances were sufficient, we think, to bring the case within the exceptions to the general rule that excludes proof of extraneous crimes.” (p. 10.)

It is especially complained that one of the witnesses was allowed to testify to payments made to defendant

I also believe that all of the evidence complained of was competent for another reason. The indictment charged and the prosecution was bound to establish that the defendant collected the monéy specified as the unlawful price of protecting a disorderly resort from police interference. The only direct evidence of the actual payment of the money was given by Both who made it. It not only was not conclusively explicit as to the purpose and intent with which it was given to and received by the defendant but in addition Both was an accomplice and a discredited witness. Under these circumstances connected as it was by other evidence I think that the testimony of other payments made to Fox and the defendant was competent as tending to show the purpose for which the latter made from Both the collection specified in the indictment.

For the reasons stated I think that the judgment of conviction must be affirmed.

Werner, Ouddeback, Miller and Cardozo, JJ., concur; Willard Bartlett, Oh. J., concurs on last ground stated in opinion; Collin, J., dissents.

Judgment of conviction affirmed.