People v. Lafaro

The defendant has been indicted and convicted upon a charge of bribing a public officer. The indictment alleges that the defendant did offer and give to

The evidence produced at. the trial is sufficient to sustain this allegation. Lafaro maintained a public billiard room in the village of Waverly. There he sold intoxicating liquor. The village chief of police visited the premises, and found some whisky. The next morning the defendant came to the office of the chief of police. He gave him twenty dollars. According to the testimony of the chief of police, the defendant offered to pay him the further sum of twenty dollars every month.

The village policeman is a public officer of the State of New York. Undoubtedly the evidence is sufficient to establish that the defendant sought to influence him in respect to some act or decision. The police officer, charged with duties in respect to the preservation of the public law and order, was to “ let ” the defendant continue his unlawful sales of liquor in a billiard room. The defendant did not state with artistic accuracy the consideration which he intended to exact from the police officer, in return for money given and offered. Sales of liquor in a billiard room are expressly prohibited by section 348 of the Penal Law of the State, and the penalty is fixed by section 351. Such sales are also an offense under the National Prohibition Act, and the penalty under that statute is more severe. The defendant told the policeman that if complaints were made that the defendant was selling liquor in his billiard room, the policeman could “ get by ” by saying that he was without any jurisdiction. It seems to us quite clear that from such testimony the

The National Prohibition Act, enacted by Congress in pursuance of the United States Constitution, is part of the law of the land. Its provisions are as binding upon the residents of the State of New York as if they had been enacted by the Legislature of the State of New York. A private citizen of the State might charge the defendant before the appropriate tribunal with an offense under the law of the United States, as well as with an offense under the law of the State of New York. The police officer, when he puts on the uniform of the State, divests himself of no privilege he enjoys, or duty he owes, as a citizen of the United States. Like any other citizen he might charge the defendant before the Federal authorities with an offense under the National Prohibition Act. The offense of which the defendant has been convicted is that he gave money to an officer of the State to induce him to refrain from making such a charge. It is said that in instituting a prosecution against the defendant in a Federal court, the police officer acts only as a citizen; that such an act is not performed in the exercise of powers or functions as a public officer of the State, and that even corrupt influence to cause him to refrain from such an act cannot constitute bribery of a public officer as defined by the Penal Law (Sections 378 and 1822).

A private citizen has the right to institute criminal proceedings against a wrongdoer, and, at times, to arrest without a warrant. He may be called upon to perform certain duties in connection with the enforcement of the law and the preservation of peace and order. In most communities, duties and functions in respect to the preservation of peace and order have been conferred upon public officers to supplement, and under ordinary circumstances, to supplant, action by private citizens.

The village policeman is an officer of the State of New York, charged with the duty of protecting the peace and order of the State. The National Prohibition Act is the law in the State of New York, for under article VI of the United States Constitution, all laws of the United States made in pursuance of the Constitution are the “ supreme Law of the Land.” Nevertheless, a violation of the Federal act constitutes no offense against the peace and dignity of the State. ( United States v. Lanza, 260 U. S. 377 .) The Federal statutes confer no special powers upon State police officers in the enforcement of the law of the United States. (Lenski v. O’Brien, 207 Mo. App. Rep. 224 .) We assume, without deciding, that the statutes of this State confer upon the officers of the State no powers and do not expressly impose upon them any duties in respect to the enforcement of the constitutional or statutory prohibition of the manufacture, transportation or sale of intoxicating beverages. Where a State officer co-operates with Federal officers in the enforcement of the Federal statute, he must, at least for some purposes, be regarded as a Federal agent. (Gambino v. United

Under our Federal Constitution, there is a division in the field of governmental authority between State and Nation. For want of a better term we speak of a division or duality of “ sovereignty.” In English decisions, treatises and statutes, we often find such expressions as the “ King’s peace ” and the “ King’s justice.” Such expressions, of course, mean nothing more than the peace and justice of the realm. Offenses against the peace of community or realm are regarded as offenses against the sovereign. Public officers are the king’s officers, and criminal prosecutions are instituted in the name of the sovereign. We have carried these concepts into our own law. In the field where the Constitution allots authority to Congress, the United States takes the place of the King. Offenses against its laws are offenses against the peace and dignity of the United States, and criminal prosecutions are conducted in its name. The officers who execute those laws are officers of the United States. Outside of that field the State takes the place of the King.

Juridical concepts may not blind us to actual conditions. Distinctions based upon the duality of sovereignty in our structure of government do not affect the duty of obedience to all law by all citizens, nor the harm that may come to the peace and order of the community through disobedience of any law. Public officers of the State of New York are required by the Constitution of the State to take an oath that they will “ support the Constitution of the United States.” Governor Smith, in his memorandum approving the repeal of the State enforcement act, declared that the peace officers of the State are required to enforce the Federal law “ with as

We are not, at this time, called upon to determine the extent of the duty of police officers of the State to enforce a Federal law — or even whether any official, as distinguished from a moral duty, exists. The village police officer, in the course of his unquestioned duty to preserve peace and order, has learned that a Federal statute is being violated. Prosecution in the Federal courts' might put an end to this violation. The defendant has sought to induce a public officer, for a corrupt and concealed consideration, to refrain from instituting appropriate proceedings to punish and suppress a violation of a law binding upon all residents of the State. Though we should assume that the law of the State does not require the police officer to suppress a violation of the Federal law, the question still remains whether complaint to the Federal authorities of a violation discovered by the officer in the course of his duty is not part of the function of a State police officer, at least where continued violation tends to affect the public health, morals or order.

The answer to that question seems to us quite clear. The gist of the crime of bribery is the wrong done to the people by corruption in the public service. None can doubt that this defendant sought corruptly to influence a police officer, in the performance of an act which, it is evident, the defendant, the police officer and the Governor of the State considered a public duty owed by a public servant. We have given to the statutory definition of bribery a construction broad enough to cover cases where a public officer has accepted a bribe to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties. (People v. Jackson, 191 N. Y. 293 ; People v. Clougher, 246 N. Y. 106 .)

We have said that “ there is to be no traffic in the privilege of invoking the public justice of the State.” (Union Exchange Nat Bank of N. Y. v. Joseph, 231 N. Y. 250 .) In effect the defendant asks us to hold that while traffic with a public officer of the State in the privilege or duty of invoking the public justice of the State undoubtedly constitutes the crime of bribery, traffic with such an officer in the privilege of invoking the public justice of the Nation does not. Such distinctions have no place in the administration of the criminal law. We refuse to read them into the statute. At times violation

If enforcement of State law is confided solely to the public officers of the State, and the enforcement of the Federal law is confided solely to the public officers of the United States, then in the interests of the community there may well be co-operation between the two. At least, we may say that .such co-operation in the interests of the public is not outside the functions of officers to whom law enforcement has been confided. Otherwise the complications inherent in our system of dual sovereignty would become intolerable. Bribes offered to police officers to refrain from co-operation with Federal authorities must bring corruption into our police force. We will not impute to the Legislature any intention that narrow distinctions should be drawn between traffic with a public officer affecting the peace, order and justice of the State, and traffic with the same officer affecting the peace, order and justice of the United States, where the purpose and the natural effect of the act is to corrupt the police of the State.

For these reasons the judgment affirming the defendant’s conviction should be affirmed.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.