People v. Harvey

At a term of the Supreme Court held in and for the county of Nassau in June of 1921, the defendant was convicted of the crime of bribery, and sentenced to state prison. The judgment of conviction was affirmed by the Appellate Division for the second department, two of the justices dissenting, the presiding justice granting to the defendant a certificate of reasonable doubt, pending his appeal to this court, on the ground that certain evidence was improperly admitted.

The witnesses against the defendant- were Matthew J. O’Neill, a hackman by trade, previously convicted of crime; William G. Hoffman, who gave his business as selling stolen automobiles, in jail awaiting trial for crime; Salvator Salano, in the taxi business, in jail awaiting sentence for crime; Aubrey Pettit, who had pleaded guilty to receiving stolen goods, and Carman Plant, said to be a county detective connected with the district attorney’s office in Nassau county, who also pleaded guilty to the crime of receiving stolen goods, and was awaiting his sentence.

Herbert S. Harvey, the defendant in this case, had been sheriff of Queens county and is referred to on the trial as the sheriff, or the old sheriff. He was charged by these witnesses with having paid to Plant, the county detective, the sum of $200, as promised, for having caused the release of O’Neill from a charge of stealing an automobile made against him in the Magistrate’s Court of the village of Freeport.

Hoffman, who was with O’Neill on this occasion, swears that Harvey was paid the $200 in his presence; that he saw O’Neill count out the money and Harvey accept it. Salano supports these other two witnesses by saying that he was introduced to Harvey by O’Neill and Hoffman in Tangeman’s Hotel and that Harvey said: “ You are the man that has to give me $100. So I said, ‘ I don’t know. If I have to I. will give it to you.’ ‘ Well,’ he says, ‘ That is what these boys have done. They have got to pay $300 or $200, whatever it was, see.’ I didn’t know, so I gave the $100 to Hoffman, and Hoffman passed it to Mr. Harvey.” From the testimony of these three men it further appears that they made a business of procuring and selling stolen automobiles. Aubrey Pettit testifies in support of the story detailed by the above witnesses that he met Harvey at the Belmont Park race track and

The last witness for the People was Carman Plant, the county detective, so called. He swears to having met Harvey at the race track, as detailed by the other witnesses and says that the following conversation took place: “ He said ‘ I understand you have a friend of mine in trouble with an automobile over in Freeport.’ I asked him if he meant O’Neill. He said yes. He wanted to know what I had done. I told him what we had done. O’Neill had showed a bill of sale to a fellow by the name of Griffiths, out around Port Washington, and I went down different places to see if I could find him, and could not find any such man, and I had been out on two different nights. I asked him what kind of a fellow O’Neill was. He said O’Neill was all right. * * * He said, ‘ Well if you can attend there on the 16th, at the court room in Freeport, and tell them what you told me I will get $200 and make you a present of it from O’Neill.’ ”

After this conversation Carman appeared in the Police Court on adjourned day and told the police magistrate that he thought O’Neill had been fooled, and that the district attorney wanted the case dismissed, so that he

To meet all this testimony, Harvey, the defendant, introduced evidence of his previous good character and standing in Flushing, where he lived, but did not take the stand himself.

The charge of the court was quite full and complete, covering all points necessary in a case like this. The justice charged the jury that the witnesses implicated in this charge were accomplices upon whose testimony alone the defendant could not be convicted. He left it to the jury to say whether or not Pettit and Salano were accomplices, and if the jury found that they were not, then it was for them to say whether the testimony of these two men corroborated the accomplices by tending to connect the defendant with the crime.

I have given this brief outline of the evidence against the defendant and of the trial for the purpose of showing that the testimony furnished by the prosecution, if true, and applied in accordance with the judge’s charge, made out a case of bribery against the defendant. The jury, however, were to decide whether the testimony were true.

Section 378 of the Penal Law defining bribery says that a person who gives or offers a bribe or any money to a person executing any of the functions of a public officer with intent to influence him with respect to any act, decision, vote or other proceeding, in the exercise of his functions, is punishable by imprisonment for not more than ten years.

If Harvey offered to give Plant $200 to ease up on O’Neill and procure his discharge, or promised to give him such sum, he was guilty of the crime of bribery, as stated in this section.

The indictment charged this offense. It alleged that

On the case as submitted to the jurors it was for them to say whether or not they believed the witnesses, whether the evidence proved the defendant guilty beyond a reasonable doubt, or whether, considering the evidence of the defendant’s good character, the reputation of the witnesses, and the discrepancies in their testimony, the defendant was not guilty.

This was not a case where the district attorney was justified in proving that the defendant had committed other crimes. In order to establish the crime of bribery it was incompetent to prove that the defendant, previous to the offense charged, had committed other irregularities or offenses, or that, after the crime charged, he had been willing to break, or had broken the law. Such proof was allowed in this case; it has been challenged on this appeal, and, we think, was of such a'nature that it cannot be disregarded as immaterial under section 542 of the Code of Criminal Procedure. "

• There are three instances of this irrelevant and incompetent testimony.

First. The People were permitted to prove that previous to the offense charged, the defendant, Harvey, had seen, or attempted to see, another justice of the peace or sheriff, regarding a person in no way connected with this case charged with violation of the Highway Law, or else

Later the witness said on cross-examination that the charge against this stranger to this case in the Elmhurst court was intoxication.

The fact, if it be a fact, that Harvey had interested himself in some man charged with violating the Highway Law or with intoxication in the Elmhurst court, and, in order to have the case straightened out went to see the sheriff about it, had nothing whatever to do with the case

That such evidence was not harmless may be gathered from the use which the trial justice- made of it in his charge. He said to the jury: "And so they (the People) say that O’Neill having heard or knowing something about Harvey, and having known that Harvey had something to do with the adjusting or fixing, on whatever the term is, of some criminal case previously, that O’Neill went to Harvey to see. if he couldn’t fix,, as the vernacular is, this case, a case of interest to him.” ■

This evidence. improperly received, some of us think, in and of itself, would-’ justify -the reversal of this conviction. - '

Second. The -People proved' that the defendant after the alleged payment of $200 -fro Plant, entered into an arrangement with O’Neill and’ Hoffman, whereby he procured a stolen Hudson' automobile worth $2,000 for $600. ■ "

It seems to be conceded that this-evidence was incompetent, if not in some way connected with the charge of bribery for which the defendant was being tried. Surely proof that the defendant subsequent to committing the alleged bribery had' received stolen property from the witnesses against him would not prove or tend to prove him guilty of the crime of bribery*' There is no connection between the two offenses, except perhaps in point of time.

The trial justice apparently did not admit the testimony under the rule which in certain cases permits proof of previous or subsequent offenses. It did not tend to show the intent in bribing Plant, motive, absence

The theory upon which the evidence was admitted can be gathered from the statement- of the justice, that on cross-examination the defendant’s counsel had opened the door.

I think this evidence, as taken from the record, will make this point clearer than a general summary of it. “ Q. (asked of O’Neill) Now did you tell- us on your direct examination that the time you paid this money' over to the defendant you had a talk about a Hudson-car? A. Yes, sir. Q. Did you deliver a Hudson car? Mr. Baldwin: If the Court please, that is not redirect. The Court: I will allow it, of course. Mr. Baldwin: Then I must have an objection on another ground. I object on the ground, Your Honor, that this question to him about the transaction of the Hudson car has nothing to do with the present indictment, and is not within the issue raised by the indictment. The Court: Overruled. Mr. Baldwin: Exception. Q. Did he pay you for it? A. Yes, sir. Q. How much? A. $600. Q. What kind of a Hudson car was that? A. It was what they call a Hudson speedster.. * * * The car was worth about $1,800 to $2,000. Q..What was said about it? A. He asked us to get him a car and Hoffman said he would, I believe. They were stolen cars and he wanted a Hudson car. He ran it. A couple of New York detectives took it from him, and we refunded his money back. In fact, we paid him more than what it cost him. He said it cost $200 extra to keep things quiet in Flushing. He further told me he had sold the car for $1,300 to a friend, and he had to refund his money. Mr. Baldwin: I move to strike out all the testimony as not within the issues of this case. The Court: I will let it stand. Mr. Baldwin: Exception.”

This witness then continued to detail at some length how this car had been taken from Mr. Harvey in behalf of the owner; how the money was raised to pay back Mr. Harvey what he had paid for it, and also that Harvey knew the car had been stolen.

This evidence was given over objection and exception taken by the defendant’s counsel, sufficient to raise the question in this court.

This line of examination, in its entirety in our judgment, was not permitted by that rule of law which in a certain class of cases admits proof of other offenses. That the defendant, subsequent, to the commission of bribery, had committed the crime of receiving stolen property, was

If it were competent to show that Harvey had profited out of the transaction involving Plant and O’Neill, this was accomplished when it was shown that O’Neill and Hoffman had procured for him a Hudson car worth $2,000 for $600. It was unnecessary and incompetent to go further into a transaction having no other connection with the bribery charge and show that this Hudson car was stolen, that it was retaken from Harvey by the owner, that O’Neill and Hoffman were obliged to repay Harvey, and then to detail when and how the money was raised to repay him, and all that Harvey said about it.

The trial justice warned the jury regarding an improper application of this testimony. He recognized that it was not admissible under the rule permitting proof of other offenses for he said (referring to this testimony): “ That evidence is in the case, but it is not in the case for the purpose of proving Harvey guilty of that crime, and it is not in the case for the purpose of proving Harvey in any way guilty of bribery, but it is in the case, and properly in the case, because there was some question of whether or not Harvey had other dealings with these witnesses for the People, O’Neill and Hoffman, and whether or not Harvey was profiting at all in the transaction. And so it was asked by the defendant’s counsel of O’Neill, and again of Hoffman, if I recall rightly, whether Harvey got any part of this $200, whether he was going to get" something out of it.

“As I have said, it does not make any difference whether Harvey made money out of it or not; he could be guilty of bribery just the same; but if he has in any way profited out of it, then it is right for you to consider it, if it has any bearing on the truthfulness of the claim of the People

It is difficult to see how witnesses who have testified to paying money as a bribe could add credence to their story by stating that they had. later sold to the defendant a stolen car. One story of- crime- is,not strengthened by relating another when both come from the mouth of the same witness. ■ > :

If, therefore, the. trial justice properly admitted this evidence of the purchase of a Hudson car worth $2,000 for $600.as showing that the defendant profited out of the Plant transaction, the witnesses, were permitted to go too far when they testified that -the car was stolen and related how it was retaken from the defendant.

• Third. There was other evidence -improperly admitted of an arrangement made with -Harvey by O’Neill and Hoffman to furnish protection for their' future crimes. Here again the proof, of this offense had nothing to do with the case on trial. The witness O’Neill, over objection and exception, was permitted to testify that after this bribery offense had been committed by the payment of $200 he had the following conversation with the defendant: “ I spoke to. the Sheriff about getting protection, for I, Hoffman and Salano. • We told him we wanted to operate. through this county and sell stolen cars. I told him I thought he could handle this here for us. He said he would speak to Plant about .it. He told us to come down to Flushing, if he wished, that day. We went down to Flushing, and he told us we could operate through here for $35 a week, which., we agreed to pay.”

This evidence, we think, is excluded by the general rule, that the People cannot prove the offense charged by showing the commission of earlier or subsequent offenses.

The objectionable testimony above referred to did not come within any of these exceptions. It is said by the district attorney that these other offenses might have emphasized the intent. which Harvey had in offering Plant $200. That the defendant had previously interceded with the sheriff" for a man charged with intoxication would not bear upon "the intent in offering Plant money, neither would the fact that subsequently the defendant received a stolen car for a small consideration from O’Neill; the agreement, if made, to furnish for the future O’Neill and Huffman protection for $35 a month, would not bear upon-the intent which Harvey had in paying Plant on the occasion in question.

The influence which such testimony would have upon the minds of a jury would be to lead them to think that if Harvey had committed all these offenses, or agreed to commit them, he must have been guilty of the crime charged. This is not a legitimate use of such evidence, as a man cannot be found guilty of one crime by proving that he has committed others.

For the reasons here stated, the judgments should be reversed and a new trial granted.

His cock, Ch. J., Cardozo and McLaughlin, JJ., concur; Hogan, J., concurs in result; Pound and Andrews, JJ., dissent and vote for affirmance under the provisions of section 642 of the Code of Criminal Procedure.

Judgments reversed, etc.