People v. Mullens

In outlining this bulky criminal case, it wd.ll be convenient to abridge two corporate names appearing in the record. Burland Printing Co., Inc., will be called the Bur-land Company. Temporary Emergency Belief Administration of the State of New York will be called the Belief Administration.

In 1935, the Burland Company was awarded a contract to supply the Belief Administration with its requirements of printed material for the ensuing fiscal year. In 1936, these parties entered into a like contract for the next fiscal year. Again in 1937, a further like contract for the following fiscal year was made by the Burland Company with the State Department of Social Welfare — the successor of the Belief Administration.

On that basis, both defendants were principals (Penal Law, § 2) and they were so indicted on six charges. Each of the aforesaid three transactions was made the subject of two counts. The 1935 transaction was presented in counts 1 and 4; the 1936 transaction in counts 2 and 5; the 1937 transaction in counts 3 and 6. The first of each of these sets of counts was drawn with reference to section 1826 of the Penal Law which says that a public officer who receives or agrees to receive any unlawful fee for doing or omitting any official act shall be guilty of a felony. Each of the other three counts looked to section 1823 which says that an executive officer who asks or receives any bribe upon an understanding that his official conduct shall be influenced thereby is guilty of a felony.

By separate findings as to each defendant and in respect of each of the six charges, the jury convicted both defendants on all six counts. Upon appeal to the Appellate Division, counts 2 and 5 — the charges relating to the 1936 transaction — were dismissed for failure of proof and the judgments of conviction as so modified were affirmed. By leave of a judge of this court, the defendants have now brought here for review their convictions upon counts 1 and 4 (the charges relating to the 1935 transaction) and counts 3 and 6 (the charges relating to the 1937 transaction).

The 1935 transaction is dealt with by the People as an affair altogether distinct from the transaction of 1937, and rightly so, as we believe. On the 1935 transaction, the main witness against the defendants was Charles Walsey, who at the times in issue was president of Burland Company. Put into direct discourse his recital of that transaction was as follows: Por a long period beginning in 1931, Mr. Solomon helped the Bur-land Company in its quest for contracts and his nominees regu

The Walseys were accomplices as a matter of law. Section 399 of the Code of Criminal Procedure provides: “ A conviction cannot he had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” The corroborative evidence so required must be evidence from an independent source of some material fact tending to show not only that the crime has been committed but that the defendant was implicated in its commission. (The People v. Hooghkerk, 96 N. Y. 149 .) The commission of the crime and the defendant’s connection therewith are, however, the same thing when, as in the present case, acts of bribery are alleged. (People v. O’Neil, 109 N. Y. 251 , 267.) The corroboration must always be by some witness other than another accomplice. (People v. O’Farrell, 175 N. Y. 323 .) Where, as in this instance, several defendants are on trial, there must be corroboration as to each one. (People v. Feolo, 284 N. Y. 381 .)

Two items of nonaccomplice testimony were offered to confirm Charles Walsey’s account of Solomon’s connection with the 1935 transaction, namely: 1. H. Bitterman — the payee of the two $4,000 checks that were cashed at that time — was Solomon’s friend and Solomon theretofore had made it a practice to have funds paid to himself by way of checks drawn to the order of this same Bitterman. 2. At the request of Charles Walsey, the two $4,000 checks were drawn (the name of the payee being left out) by the bookkeeper of the Burland Company at its office and were then dispatched therefrom by the bookkeeper to Charles Walsey at the office of Solomon which was farther uptown in Manhattan. These two independent facts, we believe, could have been sensibly taken to be sufficient other evidence tending to connect Solomon with the 1935 transaction.

In their argument for Solomon on this branch of the case, his counsel say: “ Charles Walsey’s signature is on those two checks below Bitterman⅛ signature, indicating that not Solomon, nor Bitterman, but Charles Walsey himself, cashed the checks and received the money. There is only Walsey’s word that he thereafter gave that money to Solomon in front of the

As we pass now to a consideration of the jury’s finding on the 1937 transaction, we keep in mind that — as each of the several acts charged against the defendants should be regarded as distinct from the others — the evidence with reference to the 1937 transaction is to be dealt with separately and without bringing into the scale the evidence given upon the 1935 transaction.

On June 24, 1937 — as Mullens conceded — Ira Walsey met Solomon, Mullens and a Mr. Dougherty of the State Comptroller’s staff in rooms occupied by Solomon at a prominent hotel in the city of New York. In respect of this meeting, Ira Walsey said: ‘ ‘ Mr. Mullens had the contract with him there. I signed the contract. And after I signed the contract I went into the other room with Mr. Solomon. I gave him $10,000. As I left the room Mr. Mullens went into the room that I had just left.” All this (according to the Walseys) was in performance of a

There was independent evidence of the following facts: 1. Ira Walsey had more than $10,000 in currency in his possession on June 24,1937. 2. Mullens and Dougherty together came to Solomon’s hotel suite on that dhy, after the 1937-1938 State contract with the Bnrland Company had been brought by Dougherty to the city of New York from Albany at the behest of Mullens and at another hotel had earlier been approved by Mullens as Deputy State Comptroller. 3. Ira Walsey and Solomon withdrew from the outer room of Solomon’s hotel suite to a separate room there. 4. Mullens entered that separate room upon the departure of Ira Walsey therefrom.

As to these fractions of the proof, the District Attorney in his brief says: only did Dougherty, who accompanied Mullens there, testify that Ira Walsey had been in Solomon’s room with Solomon and Mullens at the time in question, but Mullens himself acknowledged that such was the fact. The circumstance that Dougherty did not know what transpired at the meeting is immaterial; evidence of the defendant’s presence at a conference which, according to the accomplice, concerned the crime charged, constitutes the corroboration (The emphasis is ours.)

Upon the foregoing examination, we do not find the case for' the People to he necessarily conclusive. Prom that viewpoint, we now take up exceptions that were registered by the defendants against several matters of evidence.

Solomon was shown to be a political leader. The two $4,000 checks that were used at the time of the 1935 transaction were drawn as we have noticed to the order of H. Bitterman. As corroboration for Charles Walsey’s story of that transaction, the People were allowed to introduce against Solomon evidence that in 1933 two $1,000 checks which were then drawn to the order of Bitterman by the owner of a restaurant property in the city of New York were paid to Solomon as a reward for the removal of a subway entrance structure that had stood in front of that property. Though in his instructions to the jury the Trial Judge took pains to stress the apparent absence of impropriety in that occurrence, the contrary implication was we think, too obvious to have been ignored. There was no cogent reason for dragging out that 1933 episode, for Solomon’s habit so to make use of Bitterman’s name had already been demonstrated and was undisputed. The manifestly prejudicial quality of this remote and merely cumulative fact seems to have been its whole worth to the People.

Charles Walsey was permitted to testify respecting a collusive arrangement between the Burland Company and a com-, peting concern pursuant to which the Burland Company — in the interest of and for a price received from its competitor — had submitted a series of bids on State printing contracts at prices that were grossly excessive There was, however, no showing of any participation by either Solomon or Mullens at any stage of that fraudulent “rigging of bids.” Conceding this gap, the People now say no harm could have come to either defendant in consequence of such proof of trickery practiced by others. But that proof — which touched every State printing contract from 1932 to 1939 — was offered by the People (so they said) “ as part of a common scheme and plan involved in these bribery situations,” — and doubtless was so weighed by the jury.

When, as in this instance, men are put on trial on several distinct charges, evidence which has relation solely to one of the accusations may seem to be heightened by the evidence given upon the others and in that way a mass of evidentiary details may unfairly appear to include something which is actually wanting. That fallacy is hard to avoid, as everybody knows who has had occasion to canvass a record like the one in hand. Quite probably the jury here so judged the part from the whole in reaching their conclusion that even the charges relating to the 1936 transaction had been established. Prom any standpoint, then, the present case was a controversy from which foreign things of such a nature as to invite repro-bation should have been rigidly excluded. We cannot assume that the different course of the trial did not unduly contribute to a verdict of guilty which (as the Appellate Division has found) was without warrant in one considerable part.

The judgments should be reversed and a new trial ordered.

Judgments reversed, etc.