People ex rel. Perkins v. Moss

If the information, which was laid before the magistrate furnished no legal evidence of the commission of a crime by the relator, then he was illegally restrained of his liberty. If the facts shown did not warrant an inference by the magistrate of the existence of probable cause to believe that the crime charged had been committed, he was without jurisdiction to cause the arrest of the relator and the latter was entitled to resort at once for his protection to the writ of habeas corpus. Section 2015 of the Code of Civil Procedure provides that “ a person imprisoned or restrained in his liberty, within the State, for any cause, or upon any pretence, is entitled, * * * to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom.” The petitioner is only required to state, among other things, that he “ is imprisoned, or restrained in his liberty; the place where, * * * and the officer or person by whom, he is so imprisoned or restrained.” (Sec. 2019, Code Civ. Proc.) The arrest of the relator was ah actual restraint of his person, and he was not obliged to await an examination before the magistrate. The provision of the statute, in that respect, was for his benefit; in order that he might be informed of the charge and that he might have the opportunity to examine the witnesses and to make any statement in relation to the charge. (See Code Crim. Proc. secs. 188 to 197.) He could waive these proceedings, however, and immediately sue out the writs that the legality of his detention under arrest might be inquired into. The statute, which confers the right to the writ of habeas corpus, has always been construed in favor of the liberty of the citizen. The protection afforded by it against arbitrary and illegal arrest is within the guaranties of our Constitution, and the statutes of the state have always been intended to increase the facilities for the issuance of this great and valuable common-

If the magistrate issued the warrant of arrest without sufficient evidence in the particular case, the process is a nullity. The question, always, must be whether the magistrate acquired jurisdiction to cause an arrest of the person and the coui% upon the habeas corpus proceeding, will look back of his warrant and see if the facts stated in the depositions of the .prosecutor and his witnesses support his warrant. (Code Crim. Proc. sec. 149; Church Hab. Corp. sec. 236.) If they did not furnish reasonable and just ground for a conclusion that the crime charged had been committed and that the defendant committed it, then jurisdiction was lacking to hold the prisoner in custody for any time. (Code Crim. Proc. sec. 150.)

The relator had the absolute right to question, in this way, the sufficiency of the facts laid before the magistrate to constitute the crime of larceny. That crime is defined in section 528 of the Penal Code; which reads, so far as material, as follows: “ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, * * * having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation, * * * any money, property, evidence of debt or contract, article of valúe of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property, and is guilty of larceny.”

It is apparent that what constitutes the crime of taking the property of another for the use of the taker, or of that of any other person than the legal owner, is the intention with which the act is committed. Under the statute, the crime of larceny no longer necessitates a trespass; but it does need, as an essen

The legislature may make that criminal, which was not so before; but we may not reason back of the enactment and

If we turn then to a consideration of the facts, upon which the magistrate ordered the relator to be arrested, it is impossible reasonably speaking, to find that criminal element which the statute makes a necessary one, the intent of the accused to steal.

When summed up, the evidence amounts to this: that the .president of the company, in whom was vested, and who had for years been exercising, the power to make disbursements of the corporate funds upon his sole authority, had agreed that the insurance company would contribute to the presidential campaign fund of the Republican national committee up to the amount of $50,000 and that, to protect the company against other demands for political purposes, he requested the relator, one of the company’s trustees, to personally carry out the agreement, by advancing the moneys. The relator acquiesced in the president’s request, advanced the money, and, subsequently, the president brought up the subject of his reimbursement, informally, before a full attendance of the members of the finance committee of the company. The president’s purpose was not that the finance committee should take official action in the matter; but that the trustees should be informed of what he had done and that he might have their opinions upon the matter. It was the general opinion that the president should cause the relator to be reimbursed for his advancés out of the corporate funds. The facts stated by the witnesses showed that what was brought before this body of the company’s trustees was the claim, or right, of Mr. Perkins to be repaid the moneys which he had paid out by the procurement of the president, in order that the latter’s agreement on behalf of the company might be

It is, unquestionably, true that the purpose, for which the moneys of the company were promised, was foreign to the chartered purposes of the corporation; but that fact does not make the payment a criminal act. The act not being malum prohibitum, nor malum in se, the innocent motive of indirectly promoting the corporate affairs, through the supposed advantage of the continuance in power of the Republican administration, purged the act of immorality and it lacked the criminal intent. The company had not the right, under the law of its existence to agree to make contributions for political campaigns, any more than to agree to do other things foreign to its charter; but it had capacity to make agreements, if not prohibited, or inherently wicked. Its act would affect the interests of those concerned with the conduct of the corporate business and effect a private wrong; but it would not be a public offense, or illegal, in the sense of violating any public interest. (Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 258 ; Holmes v. Willard, 125 ib. 75; Moss v. Cohen, 158 ib. 240.) If making the agreement to contribute from the corporate funds was an illegal act, it was

The question in this case was whether the facts evidenced the commission of a crime and that was a question of law, which went to the jurisdiction of the magistrate. They showed that the design to injure, the motive to despoil the company, the wrongful purpose were, all, lacking in the information, which was laid before the magistrate and upon which the warrant was issued. This being so, the act of the magistrate was wholly without jurisdiction and the warrant and all the proceedings under it were absolutely void. (Hewitt v. Newbur ger, 141 N. Y. 538 , 543.)

For these reasons, I advise the affirmance of the order appealed from.

I concur with Judge Gbay in the affirmance of the order appealed from.

Stripped of any collateral and immaterial considerations, such as that of the consequences which may result to the magistrate issuing a warrant without any legal basis therefor, the

This court seems to he wholly or practically unanimous in the opinion that the evidence presented to the magistrate would not be sufficient to sustain a conviction of the defendant for the alleged crime and that he should he discharged if convicted thereon. The nature of this case, the attention which it has received and the facts and circumstances disclosed render not at all violent the presumption that the district attorney has now presented all of the evidence within his reach, and, therefore, it is quite probable that the really practical question involved is whether the relator shall he discharged at the present or at a subsequent stage of the proceedings. But however this may he, it will he conceded, as is argued in behalf of the appellants, that if even a slight degree of evidence of the relator’s guilt was produced—“ something upon which the judicial mind was called upon to act in determining the question of probable cause,” the magistrate had jurisdiction, the warrant was valid and the order appealed from should he reversed.

We are all agreed upon certain fundamental principles pertaining to this case. The contribution by the president of the ISTew York Life Insurance Company from its funds of $50,000 to a political campaign committee, even in the absence of any statutory prohibition, was absolutely beyond the purposes for which that corporation existed and was wholly unjustifiable and illegal. And while the contribution was suggested and made by the authority and direction of the president of the company rather than by the relator, still the latter was so a party to the execution of the act that he must be regarded as

Further than this, the assumption will be made without critical analysis of its correctness in all respects, that because the relator understood when he advanced his own funds to Hr. Bliss that the same would be repaid to him with moneys of the corporation, he was from the beginning a party to the plan to appropriate such corporate funds to an unauthorized purpose, and that, therefore, when payment was made to him he did not occupy the position of a bona fide though mistaken claimant, and does not come within those provisions of section 548 of the Criminal Code which provide that it is a defense to an indictment for larceny “ that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable.”

But, confessedly, these facts and considerations alone are insufficient to justify the charge which has been laid against the relator. At the time of his arrest there was no statute making the contribution of corporate funds to political purposes of itself a crime, and, therefore, there must be some evidence that the relator in doing what he did was actuated by a felonious, criminal intent. It is agreed upon all sides that the crime of larceny may not be committed unintentionally, unconsciously or by mistake, but that in order to accomplish it the perpetrator must have the intent referred to. It may be ‘ difficult at all times exactly and satisfactorily to define this intent, but the requirement for it as applicable to this case means that when the relator took part in the appropriation of the moneys in question, he must have had in some degree that same conscious, unlawful and wicked purpose to disregard and violate the property rights of another, which the ordinary burglar has when he breaks into a house at night with the preconceived design of stealing the property of its inmates. There

At the outset it must be borne in mind that some of the circumstances which surround this charge are merely accidental and superficial, and not at all decisive. The fact that this contribution was made by the officers of one of those corporations whose management recently has been subjected to grave criticism, and even that it was made for a purpose properly subjected to condemnation and now absolutely prohibited, are of no legal significance. However public opinion or ethics might distinguish them, the legal principles which control the consideration of this case are the same which would be applicable if the president of a manufacturing corporation had contributed from its funds toward the erection of a church supposed to be for the benefit of its employees, or the officers of a railroad company had contributed its funds or the use of its property and transportation facilities for the temporary relief of the sufferers from some sudden and great calamity. We probably should be compelled to say in each case that the contribution was beyond the purposes of the corporation and unauthorized and illegal and the officers making the same civilly liable, but it certainly would be a matter of grave import to hold, in the absence of something else, that they might be prosecuted for stealing.

It, therefore, seems to me that we are justified in scrutinizing with care the depositions presented to the magistrate for the purpose of ascertaining whether they do in fact disclose any intent to commit a crime.

But it may be said that the magistrate was at full liberty to believe or reject this statement in whole or in part. It seems to me that this is too broad a statement of the law. Various authorities like Becker v. Koch ( 104 N. Y. 394 ) and President, etc., Manhattan Co. v. Phillips ( 109 N. Y. 383 ), may be found holding that upon the examination of an adverse witness, the party calling him is not as a matter of law bound by explanations or adverse statements which he may make, but that he may ask the jury to disregard the same. But an examination of these cases will show that the jury were permitted to disregard such explanations or statements only because they were contradicted by other facts appearing or by inherent probabilities. Moreover, it is well recognized that especial consideration has been accorded to the exigencies liable to arise upon the examination of a hostile witness where the party compelled to call him cannot anticipate the form which his evidence will take. The natural rules by which to measure the force of relator’s statement in this case are those which have been framed in respect to the use of statements and admissions made by a party outside of the trial. In such a case the party attempting to use the admission knows beforehand just what it is and there is less need for liberal rules in his behalf than in the other case. It is well settled that where use is made in a judicial proceeding of a prior declaration the entire declara

It is only where ■ that part of the declaration which discharges the party making it is in itself highly improbable or is discredited by other evidence that the court may believe one part of the admission and reject the other. (Kelsey v. Bush, 2 Hill, 440 .)

These rules are especially applicable and equitable in this case, for here the district attorney requested the relator to make the statement in question, and after the latter had done this with apparent fullness and frankness, waiving all those rights and privileges which he had in a criminal prosecution, the former official deliberately, after opportunity for full consideration, employed it as a proper statement of facts upon which the magistrate might act.

It seems to me that not only is there no evidence aliunde the statement which contradicts ,it in the respects wherein it is favorable to the relator, but that upon the other hand the depositions confirm it and indicate the absence rather than the presence of a criminal intent to steal the money of the corporation.

Concededly the relator derived no pecuniary gain from the expenditure. It does not appear that he had any personal or political end to serve by the contribution, but, so far as we

Some importance seems to be attached to the entries which were made upon the books of the company in respect to this repayment and to the fact that the check was made payable to the firm of which the relator was a member rather than to him personally. It affirmatively appears that the relator had no part in making or any knowledge of the entries upon the books of the company, and that the check in repayment was made under the direction of the president of the company rather than the relator.

These facts are all established and must be accepted by the prosecution as true, and there is wanting every one of those circumstances of personal gain, furtive secrecy in the com mis

In McCourt v. People ( 64 N. Y. 583 ) the plaintiff in error stopped at a house and asked the daughter of the owner for a drink of cider, offering to pay for it. She refused to let him have it, and he thereupon opened the cellar door, and although forbidden to do so by her, went in and drew some cider. He was indicted for burglary and larceny and it was held that the trial court committed error in refusing to direct his acquittal. It was said: “ Every taking by one person of the personal property of another, without his consent, is not larceny; and this, although it was taken without right or claim of right, and for the purpose of appropriating it to the use of the taker. Superadded to this, there-must have been a felonious intent, for without it there was no crime. It- would, in the absence of such an intent, be a bare trespass, which, however aggravated, would not be a crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury.” And then further, as applicable to the particular circumstances of that case, “ There was not only an absence of the usual indicia of a felonious taking, but all of the circumstances proved are consistent with the view that the transaction was a trespass merely. To find this transaction a larceny it is necessary to override the ordinary presumption of innocence and to reject a construction of the prisoner’s conduct, which accounts for all the circumstances proved without imputing crime, -and to impute a criminal intention, in the absence of the ear marks which ordinarily attend and characterize it.”

I dissent from the decision about to be made. The relator having been arrested under a warrant charging him with the commission of grand larceny, sued out in the Supreme Court a writ of habeas corpus, in aid of which a certiorari was issued. On the return to the writs the relator was remanded to custody by the Special Term. This order was reversed by the Appellate Division and the relator discharged, and from that order an appeal is brought to this court.

That the warrant was sufficient on its face is unquestioned, and the ground on which the relator has been discharged is that the depositions before the magistrate were insufficient to justify the issue of the warrant. Doubtless, where there is no evidence in the depositions tending to show the commission of the crime and the guilt of the defendant, the court may go behind the warrant and discharge the prisoner. (Church on Habeas Corpus, sec. 286.) But there must constantly be borne in mind the radical distinction between the proof requisite for the issue of a warrant and that required for conviction on the trial of the defendant. In the latter case the proof must establish guilt beyond a reasonable doubt. In the former it is sufficient that the evidence shows reasonable ground to believe that the defendant had committed a crime (Code of Crim. Pro. sec. 150), or, as commonly said, a case of probable cause. If there is no evidence whatever justifying the inference of guilt the magistrate acts without jurisdiction, the process is illegal, and both the magistrate and the party suing out the warrant are liable as trespassers. But if “ the evidence produced was colorable—something upon which the

It must be further borne in mind that the relator was discharged before examination, and the distinction between a discharge upon the warrant and the depositions on which it was issued and a discharge after examination is important. In the first case the discharge proceeds on the theory that the arrest is absolutely illegal, the case being destitute of any evidence of guilt calling for a judicial determination, while after examination the Supreme Court, as the successor of the King’s Bench, may, even on habeas corpus, review the evidence and reverse the decision of the magistrate. But, as pointed out by Church in his work on Habeas Corpus (Sec. 234; see also Hurd on Habeas Corpus, chap. 6, secs. 3, 4 and 5), such power in reality springs from the superiority and appellate power of the court issuing the writ, and not from the Habeas Corpus Act. Therefore, the question presented to us is the same as that which would arise were the relator to sue the magistrate for false imprisonment in having issued the warrant. If in such an action the court ought to instruct the jury that, as a matter of law, the arrest of the relator was illegal, the relator has properly been discharged; if not, not.

' We are, therefore, brought to the question whether there was any evidence in the depositions tending to show that the relator had been guilty of a crime; for “ when the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process may be valid, until it is set aside by a direct proceeding for that purpose.” (Miller v. Brinkerhoff, 4 Denio, 118 .) In Bwart v. Richard ( 148 N. Y. 264 ) it was held that a deposition stating “ deponent believes and has reason to believe that said store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from

It is not necessary to consider whether the facts stated in the depositions would make out a case of larceny at common law; because for more than a century embezzlement by clerks, agents and officers had been made criminal by statute, and the effect of the Penal Code was to abolish the distinction between the two crimes and make both larceny. By section 528 of the Penal Code, “ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person. * * - Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation * * * any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any person other than the true owner or person entitled to the benefit thereof; steals such property, and is guilty of larceny.” The depositions show that in September, 1904, the relator, who was a trustee and vice-president of the Hew York Life Insurance Company, had a conversation with the president of said company, in which the latter stated that he had promised to contribute to Cornelius H. Bliss, treasurer of the Republican national committee, the sum of $50,000, or so much thereof as might be necessary for the purposes of the Republican campaign. It was then substantially agreed between the parties that the relator should pay the money out of his own funds

It is also unnecessary to consider whether the relator as an officer of the company had at the time in his “ possession, custody or control,” the funds or property of the company within the provisions of the Penal Code. Certainly the president had such custody and control, and by section 29 of the Penal Code a person who aids or abets the commission of a crime or directly or indirectly counsels its commission, is equally a principal with the person who commits the acts. Mor have the provisions of section 548, that it is a sufficient defense to indictment for larceny that the property was appropriated openly under a claim of title in good faith, any application to the case. The crime, if there was any in this case, commenced when the original agreement was made between the relator and the president, by which the money of the company was to be appropriated to the use of Bliss and the method was adopted, for the purpose of concealing such appropriation, that the relator should in the first instance pay the money to Bliss and thereafter receive the money of the company. The repayment to the relator was not an independent transaction, but part of the original scheme, and must stand or fall with the legality or criminality of that scheme.

It thus appears that by the joint action of the relator and the president of the company this large sum of money was taken from the funds of the company and given to Cornelius Bliss for expenditure for political purposes. Mr. Bliss, neither in his personal nor in his representative capacity had any claim on the company for the money, legal, equitable or moral. The company was to be permanently deprived of it, for it never was to be returned, nor was any consideration to inure to the company for the money paid. The purpose for which it was to be employed was wholly foreign to the business of the corporation and one in which the company had no possible inter

But it is said by the judges of the Appellate Division that the misappropriation of the moneys was simply ultra vires and not illegal, and reliance is placed upon a quotation from the opinion of Judge Comstock in Bissell v. Michigan Southern & N. I. R. R. Co. ( 22 N. Y. 258 )- where he said: “A subscription made by authority of the board of directors and under the corporate seal, for the building of a church or college, or an almshouse, would be clearly ultra vires, but it would not be illegal. By a singular fatality there has been entirely overlooked the very next sentence to the one quoted: “ If every corporator should expressly assent to such an application of the funds, it would still be ultra vires, but no wrong would be committed and no public interest violated.” Doubtless the action or contract of a corporation may be ultra vires and yet be vicious in no other respect, but also the action of a board of directors of a corporation may be not only ultra vires, but criminal. If a bank should purchase and operate a railroad the action would be, in the absence of any statutory provision on the subject, simply ultra vires, and the corporation could

There is this further answer to the argument of the Appellate Division. There is no proof that the corporation authorized the payment to Bliss, and as it would have been an illegal act on the part of the directors (from whom it seems to have been concealed), it must be assumed in the absence of proof to the contrary that it was not authorized. “ Power to bind the corporation can be presumed to exist only in its executive agents and officers within the scope of its ordinary business and their ordinary duties.” (First National Bank of Lyons v. Ocean National Bank, 60 N. Y. 278 .) It appears by a statement in one of the affidavits already quoted that the president by virtue of his office “ had power to make disbursements known as disbursements upon executive order.” Plainly the authority so given to the president was solely to make dis

Something is also said in the opinion below of the beneficient character of the purpose to which the money was appropriated.

In the very recent case of Tyson v. Bauland ( 186 N. Y. 397 ), which was an action for false imprisonment, the plaintiff, a woman entirely reputable but in the humbler walks of life, was arrested for theft in a department store. The prosecuting witness had placed her bag containing money with other articles on a counter in the store while she was examining goods. The bag was missed. Afterwards the plaintiff was discovered with it going towards the door. She surrendered it to the prosecuting witness, stating that it had been given to her by a woman in another part of the store, who directed her to carry it to a lady whom she would find at the door. On opening the bag it was discovered that the money had been taken therefrom. The plaintiff was arrested, but the grand jury evidently believed her story, for it failed to indict. Thereupon she brought the suit for false imprisonment. We said that the officer was not bound to accept the plaintiff’s explanation, and that on the facts

As to the questions discussed in the opinion of Judge His-cock, with the utmost deference to my learned brother I insist that the rule already stated by me of the right of the magistrate to credit part of the statement of the relator and reject the rest, applies with the same force to an admission made out of court and put in evidence by the prosecution as it would to testimony given by the relator on the trial itself. I dissent from the doctrine “ that where use is made in a judicial proceeding of a prior declaration the entire declaration at the time made, so ' far as relevant, must be taken together; a party may not utilize only so much of the declaration as is for his benefit, but he must also admit that which is against his interest and the whole must stand or fall together,” though it may be that my brother intends this to be qualified by his subsequent statements. If the proposition is correct, then the action of the district attorney in laying before the magistrate the declaration of the

The voluntary character of the admission of the act charged

The case of McCourt v. People ( 64 N. Y. 583 ) decided no new principle of law. A similar case seems to have arisen as far back as the time of Elizabeth, when a traveler meeting a fisherman, who refused to sell him fish, forcibly took the fish from him but left with him money exceeding their value. (2 East’s Pleas of the Crown, 661.) Both cases proceed on the theory that as the party paid or offered to pay more than the value of the goods taken there could be no fraudulent intent. That principle has no relevancy to the present case.

The recent statute prohibiting political contributions by corporations (Laws of 1906, chap. 239), and punishing officers and agents making such contributions as for a misdemeanor does not bear on the question before us. The statute now makes the payment of such contributions criminal, though even every stockholder and every director of the company should expressly authorize and direct it. But returning to the illustra

The order of the Appellate Division should be reversed and that of the Special Term affirmed.

If the question were whether the relator’s guilt of the crime of larceny as charged in the information had been - established according to the immemorial rule which obtains in .criminal trials, and which imperatively demands proof of guilt beyond a reasonable doubt to justify a conviction, I should unhesitatingly vote in the negative, for the evidence which the magistrate had before him when he was called- upon to issue the warrant concededly falls far short of that standard. But that is not the question before us. The only question we are called upon to consider, and indeed the only one we have the right now to decide, is whether the evidence before the magistrate invested him with jurisdiction to issue the warrant; in other words, whether the evidence before him was of such a character as to impose upon him the duty of judicially determining whether there was probable cause to believe that the crime charged had been committed. It is not our province now to inquire whether his decision may have been correct or erroneous, but our duty begins and ends in passing upon his right to decide that question at all. If he had before him any evidence calling for the exercise of his judicial judgment as to whether there was probable cause to believe that the crime charged had been committed, it invested him with jurisdiction, and in that event the writ of habeas corpus issued herein must be dismissed. I think there was evidence enough

O’Brien and Edward T. Bartlett, JJ., concur with Gray and BEiscogk, JJ.; Chase, J. concurs with Cullen, Ch. J., and Werner, J.

Order affirmed.