Majority
Headnote
Bribery.—Testimony of Accomplice.—Credibility of Perjurer.—Questions of Evidence.The judge charged the jury as follows
Gentlemen of the Jury: The time has arrived, after a long and patient attention to the evidence, and the arguments which have been made by the counsel on either side in the presentation of this case, for you to enter upon your deliberation in order to determine whether this indictment which has been presented against the defendant is well founded upon the evidence, as it is claimed to be on the part of the prosecution, or whether the evidence leaves the case in such a shape that there may, notwithstanding all the facts and circumstances which have been proved, remain still in your minds that reasonable doubt which the defendant in all criminal cases in. entitled to where it exists, and-which may lead to his acquittal.
It is for you, gentlemen, to approach the consideration of the case impartially, without feeling, without fear, or without hope of reward or approbation, and to examine the evidence carefully as it has been laid before you during the progress of the case in order to determine under the die
The indictment seems to have been found some time since, and as it has been presented by the grand jury, it charges this defendant with the crime of bribery under the statutes of this State. The statutes upon this subject have undergone changes at different intervals until they have reached their present comprehensive condition. There seems to have been a feeling actuating legislative action that this was, to a certain extent at least, a growing evil in the community, in the State, and that it is necessary, for the purpose of checking and properly restraining it, to impose the restraints of punishment under legislation concerning whose intent and comprehension there could be no substantial doubt. In pursuance of this conviction the laws have been changed. They have been amended and enlarged from time to time, until they are now contained in the Penal Code of the State, and relate to all the officers that may be engaged in its service. They begin with the executive, following with legislative and judicial officers of State, and finally, by a general clause relating to all other officers, including the offense charged in this indictment. A growing solicitude has been manifested by the Legislature in this respect to frame and maintain the legislation of the State in such a form and in such a manner as will meet the emergency of the times, and check and restrain the existence of this evil, which must be regarded as appalling. If bribery is to affect the official conduct of individuals occupying positions of authority, you will see at once upon your own reflection that, as far as it extends, the fair administration of the laws will be subverted, they must be subverted, in consequence of the exercise of influences of this character, and when the offenses are brought to the attention of courts and juries and are to be disregarded, or are to be allowed to pass without punishment, then direct encouragement will be afforded to the increase and spread of this offense until its pernicious influence may endanger the very existence of
The administration of the criminal law is essentially dependent, in a large degree necessarily, on the existence and force of circumstances, for the purpose of making out criminal charges. This results from the fact that crimes ordinarily seek concealment. They are not committed ordinarily, openly, and before the public, or before the public eye, but occasions are sought for the commission of crime when safety or security from observation, or from prosecution and punishment, to a certain degree, may be within hope and the expectation of the culprit. For this reason it has been found at all times in the intelligent administration of the law necessary to resort in a great measure to the force and effect of circumstances in order to discover from the inferences that may be drawn from the circumstances whether the offense has or has not been committed. The law upon this subject has been wisely and carefully settled for the purpose of guarding the rights and interests of the defendant as well as protecting those of the public, who are the prosecutors in the case. And it requires, where the case depends, as this certainly does, at least one branch of it depends, on circumstantial evidence, that those circumstances shall be of such a persuasive or satisfactory character as
How this indictment depends upon two substantial or material facts being established by the evidence. The first is that Fullgraff, the person named in the indictment; was bribed and influenced in the vote that he gave upon August 30, 1884. That is the first charge which is contained in the indictment, and it alleges such to have been the case. Then the second part of the indictment charges that the defendant, together with James A. Richmond, James W. Foshay, John Keenan, Robert E. De Lacey, and William H. Moloney combined for the purpose of carrying this bribery into effect, and execution. That is substantially the case as it is presented by the indictment, and you will see this at once logically as well as naturally divides itself into two branches. The first inquiry is whether the Board of Aldermen, or this man Fullgraff was in point of fact bribed and induced to cast his vote in favor of this measure that engaged the at-' tention of the Board of Aldermen upon this occasion by the hope or expectation of this reward.
The proceeding before the Common Council was set on
This statute provided generally for the construction of street surface railways in the various cities and villages of this State, and provided for the manner in which the proceeding should be carried on in order to secure the right on the part of a railway corporation to construct and operate such a road. It was passed in pursuance of a provision of the Constitution of the State which was finally adopted at the election in the year 1874, and went into effect upon January 1,1875. By this constitutional amendment affecting the power of the Legislature to pass local or private Acts, it was provided in this words:
“ That the Legislature shall pass general laws providing for the cases enumerated in this section, and for all other laws which in its judgment, may be provided for by general laws, but no law shall authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one half in value of the property bounded upon, and the consent also of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railroad be first obtained. . In case the consent of such property owners cannot be obtained, the General Term of the Supreme Court in the district in which it is proposed to construct, may upon application appoint three commissioners, who shall determine as to who are the parties interested, and whether such railroad ought to be constructed or operated.”
You will see from the reading of this provision of the Constitution that two things were contemplated, two were equally requisite for the purpose of entitling a railway corporation to the right to construct and maintain a railroad on Broadway under Act of 1884.
The Act of 1884 was, I believe, the first general law that was passed in pursuance of this provision of the Constitution for the purpose of carrying its intent and effect
The indictment charges that in violation of this obligation resting upon the Board of Aldermen, to whom was confided the authority of giving this consent, that they made it the grant of a barter and concession to themselves of a pecuniary and financial character, and that this was the motive or inducement which in part or in whole led to the vote that was given, and the final adoption of these resolutions.
How in order to make out this part of the case, the witness, Fullgraff, has been placed upon the stand by the prosecution. It has been claimed and urged on behalf of the defense that his evidence should not be believed, that it should be entirely rejected by the jury, and not considered as a part of the evidence that is to be submitted to them for their deliberation and judgment here.
Upon this subject, gentlemen, I have been requested to charge the jury on the part of the defendant these propositions, which I may as well read now, in order to avoid the necessity of recurring to them hereafter.
The first is:
“Fullgraff being a self-confessed, willful perjurer and informer, the jury in their discretion may reject his testimony altogether.”
I may say as to that, subject to the observations which will be presently made, that you have the power, you have that right, but at the same time it is one to be exercised in the exercise of your judgment and belief, looking at the facts and circumstances attending the giving of this evi
“And they may reject it altogether, whether they consider it corroborated or not.”
Undoubtedly, that is the case, but you should not, gentlemen, arbitrarily or willfully reject the testimony of any person admitted for your consideration, unless in the exercise of your judgment considering the testimony, considering its probability, whether it was in whole or in part a' statement of the truth concerning which it related.
“ If they do not consider it corroborated, as required by law, they must reject it altogether.”
Upon that subject, gentlemen, there seems to be a slight misapprehension as to what the statute is. The statute upon this subject does not require, and has not directed, that the evidence of an accomplice shall be rejected from the case simply because the jury may find the fact that he is an accomplice, or simply because he is identified with the commission of a crime concerning which his testimony relates, or because he has sworn falsely or spoken falsely upon some preceding action. The provision of the Code upon this subject which is now the legislative embodiment of the law, is this:
“ A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other testimony as tends to connect the defendant with the commission of a crime.”
That undoubtedly, gentlemen, is the law which must be observed by courts and juries in considering the weight and effect and disposition of the evidence given by an accomplice. But in this case it is not claimed on behalf of the prosecution, and such has been the ruling concerning the testimony of this witness and what transpired between these persons who are said to have been engaged in this combina
“ The evidence required to corroborate Fullgraff’s must be something more than mere circumstances, which may excite suspicion, it must be legal evidence which independently of Fullgraff’s testimony tends legitimately to prove that Fullgraff was bribed, and bribed in the particular manner which he describes himself, by defendant or by defend* ants and others acting in concert for that criminal purpose.”
“ Whether or not Fullgraff’s testimony is corroborated, within the meaning of the foregoing request, or is to be rejected with or without corroboration, is a question of fact, absolutely and exclusively within the province of the jury, and for them alone to decide.”
I have already so said.
“ If the jury find that Fnllgraff on his trial willfully testified falsely as to any material part of his story,—as for instance as to the amount of money he received, or as to what was said and done at the meeting at his store and the object of that meeting,—they should reject his testimony altogether.”
That is not charged, gentlemen, because it imposes in terms an absolute obligation on the part of the jury to reject the testimony. It is a matter over which yon are to exercise your judgment. If you believe he has not sworn truly upon the trial of this case, then undoubtedly it is your duty to reject his testimony. But if yon are satisfied that he has, as to material circumstances to which his attention has been called, sworn truthfully, then his evidence is to be relied upon, and given so much weight and effect as you believe in conformity with all the facts in the case it is entitled to receive.
Now his testimony with reference, as he himself says, to the gathering which took place near the time, and-probably before the time, when this act of 1884 was passed, when they had this informal meeting, as he says, in the room of the Board of Aldermen, followed by the meeting at his store a short time afterwards, in which was talked of between them that they should act together on the subjects coming up and requiring the consideration of the Board of Aldermen';—his testimony is that there were twelve or thirteen, I think thirteen present, who would constitute a
On the part of the defense it is stated that this man’s testimony is not entitled to credit, for the reason that lie' has been contradicted by Mrs. McLoughlin as to the fact that there were no meetings of the Aldermen at their house, such as he has related, at the times referred to by him. And Mr. Sullivan testifies that he was frequently in the house, nearly every evening, if not every evening, and that no gathering of this kind took place while he was there; also the testimony of Wendel, who says he was not there, and I believe it is not contended that he was. Also the testimony of Cleary, who seems to have been included within the testimony of Fullgraff as one of these thirteen Aldermen. He states that he was not there in connection with any meeting of this kind, or upon any occasion. You, of course, gentlemen, are to look at the peculiar manner in which these witnesses have given testimony, for the purpose of determining whether you are satisfied from the evidence they have given that Fullgraff has sworn falsely as to these meetings at the house of McLoughlin. If no meetings took place there, then there is no evidence in this case that any corrupt or unlawful agreement was made between these persons at any ' place or under any circumstances ; and so far as that part of the caséis concerned, so far as the indictment depends upon the statement of what took place at this house, it would remain without support, and that fact should lead to a- verdict of not guilty, in favor of the defendant. It is important, therefore, yon should look at this testimony, and look at what before and afterwards transpired, in order to determine whether this evidence that is brought up to contradict Mrs. McLoughlin is entitled to this degree of weight and effect. Mrs. McLoughlin says the meetings could not have taken place without her knowledge. Is she right % Mr. Sullivan repeats substantially the same thing. That is their
These are circumstances, gentlemen, that require to be considered, and require to be -weighed upon the point whether Fullgraff is right in the statement that he has made, whether he v?as there axxd did meet with these persons upon this occasion, and whether these meetings could or could not have taken place without the knowledge of Mrs. McLoughlin, or without the knowledge of Mr. Sullivan. Of course, gentlemen, they could not, if Mr. Cleary was one of these thirteen, without his knowledge, and yon have a right to take into consideration as bearing upon his testimony the fact that he is stated -to have been one of these pei'sons who were engaged in this combination, acting with them whenever any subject or action came up relating to the concession of this franchise or privilege to the railroad company. Beyond this, there is further testimony in the case to which, of course, you will direct your attention tending to corroborate the testimony of Fullgraff. It is not to be lost sight of, gentlemen, that he has sworn falsely as he testified he did before the Senate Committee, and in that maimer committed another crime in addition to the offense of bribery or entering into this combinatiou of thir
These are matters to be looked at and considered; and so is the circumstance that by his testimony as a witness on behalf of the people he secures immunity from further prosecution. That, however, does not depend upon his testimony in this case. When lie was brought upon the witness stand in the first transaction where he was examined as a witness, and his testimony was obtained from him, he had the right under the law of the State to interpose, in case a prosecution was instituted against him, to bring up the fact that he had been made a witness concerning the
You have had at very great length laid before you all the proceedings which took place in the Board of Aldermen touching the claim that was made, or the application made by the Broadway Surface Bailroad Company for the concesión of this privilege, and you have been shown the action of the different Aldermen upon the subject, their different votes as these subjects came up for consideration, and it is claimed on behalf of the prosecution that the conduct, the action and the votes of these persons who are said to have been engaged in this combination have been so uniform and successive in reference to these applications and the disposition of the applications as to furnish a circumstance indicating 'that Fullgraff and the other persons acting'with him were acting in obedience to some arrangement, secret understanding, that had induced and bound these persons together to act together upon the disposition of these sub
Upon this subject it may not be unimportant or uninteresting to you, for the purpose of aiding you in your investigation and your estimate of the amount of weight to be placed upon the documents sent in to the Common Council by the Mayor, to direct your attention to the section of the Consolidation Act relating to the conduct and action of the Mayor and Board of Aldermen upon a subject of this description. This section is as follows:
“Every ordinance or resolution shall, before it shall take effect, be presented, duly certified, to the Mayor for his approval. The Mayor shall return such ordinance or resolution to the Board within ten days after receiving it, or at the next meeting of the Board after the expiration of said ten days. If he approve it, he shall sign it. If he disapprove it, he shall specify his objections thereto in writing. If he do not return it with such approval within the time above specified, it shall take effect as if he had approved it. Such objections of the Mayor shall be entered at large on the Journal of the Board, and the Board shall, after ten days, and within fifteen days after such ordinance or resolution shall have been returned to it, proceed to consider and vote upon the same.”
You will see, therefore, gentlemen, that it was the duty of the Board to enter the reasons of the Mayor upon their record, and it is for you to say whether that would probably have been done without it being understood and known
Another subject comes up in this connection, having something to do with the testimony of this witness Fullgraff,—that is, upon June 23, 1884, Mr. O’Connor, you will recollect, who was one of the Aldermen, opposed the granting of this franchise, introduced a resolution into the Common Council or Board of Aldermen in substance agreeing that that concession to construct a railroad on Broadway should not be given unless it was first put up to a sale at auction, and that this was referred to a committee, and some timé in the Fall was reported against by the committee, and was rejected by the Board of Aldermen.
Another circumstance comes up here. Did these persons vote for this reference ? Did they vote to reject this resolution ? The record has been read to you of the persons who did vote upon each of these occasions, and if they voted together upon these two occasions, this is another circumstance to be considered by you upon the question as to the effect to be given to the testimony of this witness.
Another circumstance in this connection to be considered is the position in which the interests of the city would have been placed, if this resolution of Mr. O’Oonnor’s had been adopted. You can see either that if the franchise had been put up for sale, before it could be sold it would be necessary that the Board of Aldermen should agree as to what concession should be made, they should concede the right of a company to construct, maintain, and operate a railroad upon Broadway, and the terms under which that should be done, so far as they could be prescribed in a resolution of this description. Then if it was to be sold at auction, it would be put up to the highest bidder, for the company who would pay the most for the privilege, and bid the highest to take the resolution, should get the privilege. You will see that there would have been
“ The local authorities of any incorporated city or village to whom application, under the provisions of this Act, may be made for consent to the- construction, maintenance, use, operation, or extension of a street surface railroad upon any street, road, avenue, or highway, may, at their option, provide for the sale of, and sell at-public auction the franchise, subject to all the provisions of this Act, to so construct, maintain, use, operate, or extend such street surface railway.”
You will see, therefore, under this authority, that if it had been put up in this manner, that whatever was bid for the enjoyment of this privilege or the use of this franchise would have been the property of the city itself. There was no intervening ground by which the Aldermen could have been paid anything, either one or more of these thirteen, or all the thirteen together, for the concession of this privilege, but every cent of the money that had been bid under those circumstances would have gone into the city treasury.
Now it is insisted on the part of the prosecution that this circumstance, that these persons were opposed to this concession, were opposed to this resolution as a fact bearing in some measure upon the probabilities of the truth of the statement of this man Fullgraff, that they had previously entered into this agreement by which for the consideration of the money that was to be paid to them, they were to make the concession of this privilege to the Broadway Surface Railroad Company.
There is another fact that is worthy of consideration, of course, in this connection, and that is, that other persons
By this section of the Consolidation Act to which your attention has been called, you see that the law required a two-thirds vote to pass a resolution or ordinance over the veto of the Mayor, and that would be at least sixteen or seventeen voting out of .this twenty-four. It was to meet this emergency, according to the testimony of Fullgraff, that this precaution was taken, that Mr. Moloney was to see the other persons and bring them in some manner into the arrangement;—that if the Mayor, as it was feared he might do, refused to approve the ordinance and sent in a veto, that they could still pass it over his veto.
Another circumstance occurred near the time when this vote took place, and that is the statement which Fullgraff made, that it was said to him that the money was up before the time for voting arrived. This, of course, gentlemen, is not evidence against the defendant. It is, like all this other testimony that has been considered, bearing entirely upon the first branch of the indictment, whether there was such an agreement, such an understanding between those persons, and whether the event had occurred upon which, according to his testimony, they did agree and were to give their votes.
This, gentlemen, I believe is the situation in which the testimony has placed this witness, both documentary and
It is not contended, neither is it necessary that it should be, that an absolute agreement should have been made between the defendant and these delinquent Aldermen, for the purpose of making him criminal under the statutes of the State in this respect. That is a part of the case that the prosecution relies upon as far as to make out to your satisfaction, and it is for you to determine, gentlemen, whether it has been so made out or not. Now the law upon this subject and under which this indictment has been found, has provided in these words, that, “ A person who gives or offers or causes to be given or offered, a bribe, or any money, property or value of any kind, or any promise or agreement therefor, to a judicial officer, juror, referee, arbitrator, appraiser or assessor, or other person authorized by law to hear or determine any question, matter, cause, proceeding, or controversy, with intent to influence his action, vote, opinion, or decision thereupon, is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both.”
By another provision of the statute it is not necessary that the defendant himself should have manually made himself a party to this combination. It is sufficient, in order to inculpate him, to bring him within the range of this indictment, if he directly or indirectly through the connivance of
Upon this subject, perhaps I can do no better than to read in your hearing another provision of the Criminal Code, and that is this:
“ A person concerned in the commitment of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime is a principal.” and as such he has been charged in this indictment.
How, gentlemen, if this unlawful combination was made between these Aldermen, that they would only vote for the concession of this franchise to the company upon being paid this or some other large sum of money, and this was the agreement under which these votes were given on August 6, and on August 30, then from whence came the consideration by which these men were induced to give these votes and perform this agreement of confederation which took place between them? It, of course, did not come from a disinterested source; a person having no interest to subserve or no advantage to promote would not be expected to be
In this connection, for the purpose of enabling you to look at the very outset of the case upon this point, you have all the proceedings of the meeting of the Broadway and Seventh Avenue Railroad Company held on the 13th of May. That was the day after which the Broadway Surface Railroad Company was organized, and upon that occasion—and you, of course, gentlemen, will bear in mind and carry with you in the course of your deliberations what was said and what took place upon this occasion as having some indication, or some bearing upon the probability as to where this corrupt or unlawful reward was to come from or to be provided by, if it was to be provided, inducing these men favorably to vote upon this resolution upon this occasion.
Upon this occasion, it is a part of the minutes of the meeting of the Broadway and Seventh Avenue Railroad Company that Mr. Foshay, who was the president of the company, stated to the meeting, that in order to promote and secure, and prevent from injury,—this is the substance, I believe, and you can take the proceedings of the meeting with you,—from injury, or from any competition, that he had united with other persons to form a corporation for the construction and operation of a railway upon the surface of Broadway. This is substantially his statement,- and this was considered, according to the testimony, you will recollect, of Mr. Alfred Wagstaff, as a very important subject, employing the consideration of the directors and the officers of this Broadway and Seventh Avenue Railroad Company,
Now here you will see, in the outset of the proceedings, soon after the organization of this new company, before this application was made to the Board of Aldermen, that this was made a common object of interest, a common object of discussion, to be provided for, and that the President, Mr. Poshay, said he had united with others to bring about substantially this result. This, of course, is a circumstance standing by itself, and it is for you to say, looking at the other things that occurred, the other circumstances which subsequently took place, whether this is or is not the key to the situation if the Aldermen were bribed, showing where the money would probably come from to pay them for their criminal and delinquent action.
T ou proceed upon this consideration a step further, and at a meeting of the Broadway Surface Railroad an agreement of this kind is stated to have been an agreement which they were willing to make. This was .ratified and confirmed finally, and executed ou the part of the Broadway and Seventh Avenue Railway Company, and it was stated in that agreement at this early day,—the 17th day of May, I
This was by a later agreement, not important to be considered here, further explained and further arranged by which the number of cars to be run by the Broadway Surface Railroad Company was reduced to five, substantially giving the entire control of this road to the Broadway and Seventh Avenue Railroad Company. By this agreement it was stated that in further consideration of the agreement entered into that the Broadway and Seventh Avenue Company should provide depot and stable accommodation for the cars and horses of this Broadway and Seventh Avenue Railroad Company. I may not, gentlemen, state the terms of this instrument entirely literally, but you will be at liberty to take the papers yourselves, and look at them for yourselves, and see precisely what was the language madfe use of and employed in making this agreement. Then you proceed still further in the course of the history of this business, and in the month of June, 1884, a petition is presented by the Broadway Surface Company to the Board of Aldermen asking the privilege or the franchise of constructing and operating this railroad upon the surface of Broadway, and about that time, or soon after that at least, an arrangement seems to have been-made for lithographing bonds for the Broadway and Seventh Avenue Railroad Company, and on July 22, the meeting which has been so often referred to in the examination of the witnesses was held, when the resolution was finally adopted. It was presented and adopted, provided that $500,000 of bonds should be made and issued, secured by a mortgage upon which money should be raised to enlarge the depot of the Broadway and Seventh Avenue Railroad Company, and to furnish stable-facilities and others for the use of this Broadway Sur
After this resolution was passed, on July 22, 1884, and these bonds were lithographed and ready for use, they were put upon the market, and you will recollect that this subject was to come before the Committee or Board for consideration on August 5, 1884. The statute required fourteen days’ previous notice of the consideration of this subject. The bonds were put upon the market. It appears by the evidence of Hr. Prentice that Hr. Foshay, the president of the road, and Hr. Kerr, who was the treasurer and the secretary of this road, were present at his office to arrange with him concerning the disposition of these bonds and the raising of this sum of five hundred thousand dollars. You, of course, are to consider the period of" time when these bonds were brought upon the market. At this time the Broadway Surface Bailroad Company had not acquired either one of these consents. They had no right to disturb even a stone or a spadeful of earth upon the route which this railroad company desired and hoped to be able to construct the road upon. But this was all in the future; either the property owners would not consent, the commissioners would not favorably report, or the courts would not confirm their report if they did, or the Aldermen would not give them the right or the privilege to construct a road on Broadway. You are to look at these surrounding and attending circum
You will see here, gentlemen, for the first time, a coincidence between what is stated by Fullgraff to have transpired between himself and his alleged confederates and the business of this Broadway and Seventh Avenue Railroad Company. His statement is that they were to have five hundred thousand dollars. This resolution is that the company should raise five hundred thousand dollars; and the resolution further provided that bonds of the first mortgage which were then in the treasury of the Broadway and Seventh Avenue Railroad Company should be made use of as a means of floating these second bonds in case they could not be otherwise sold. There were one hundred and seventy-eight of these bonds of one thousand dollars each at that time in the treasury of the Broadway and Seventh Avenue Railroad Company, and a portion of these bonds, at least, it was contemplated, might be required for the purpose of putting the second mortgage bonds upon the market, and raising this sum of five hundred thousand dollars. Is there
Why then, gentlemen, in this state of the market, depressed as the witness states it to have been in this manner, should these bonds have been placed upon the market simply for the purpose of providing the fund, according to the resolution, for enlarging the depot and supplying additional stable room for the cars and horses of this newly-formed company ? This is a question that must suggest itself to you in the course of your investigation in this case. Why at this time was it necessary to put these bonds upon the market and add to them these seventy-five bonds secured by thr first mortgage of the company in order to raise this sum of five hundred thousand dollars ? Then you will ree
I should add one thing further, gentlemen, by way of explanation, and that is, in reference to the statement or the testimony of witnesses, that you are not to rely upon my recollection or upon the impression that the evidence may have produced upon my mind. But you will judge entirely of what the evidence is by your own recollection, and give it such weight and effect under the circumstances as you believe it to be entitled to in your independent recollection of what transpired while these witnesses were examined upon the stand during the progress of the trial. But as the evidence impresses me, this is the substance of it. First, it was expected to sell these bonds with a bonus of twelve of the first mortgage for every one hundred thousand dollars. That did not meet the approbation of the broker, and it was increased to fifteen bonds for every one hundred thousand of the five hundred thousand bonds, and they were subsequently put off on the market in this manner. The defendant and Foshay, according to his testimony,' were there at his office looking after this business. They were engaged to some extent in conversation and negotiation with persons who bought bonds. They received the checks or the moneys for which the bonds were purchased; when the checks were received and made payable to the defendant, they were indorsed by him in his own hand-writing, and the money was raised upon these checks, as it is stated in the course of the examination of several of the witnesses, that the money was raised in large bills, and this, of course, is another coincidence existing in reference to this part of
Tou are the judges, gentlemen, as to the weight and effect to be given to all the evidence. It is for you to determine, as it strikes your mind in view of the probabilities and in view of the circumstances, how much weight it ought to have, and how much weight you will give to it in the decision of the case. Tou have these circumstances—the-making of these bonds, the making and recording of the mortgage,and the raising of the money prior to the time when thistransaction was to take place before the Board of Aider-men on August 5, 1884, as circumstances to some extent bearing upon the question whether this defendant is shown to have been connected in such a transaction or in such a confederation as is stated to have existed between these Aldermen by the testimony of this witness Fullgraff. It appears after this occurrence, after this August 2, when most
It is as to this circumstance, as well as to the succeeding vote on the 30th of the same month, that your attention has been especially directed as indicating a probability that this money was raised with this haste under these circumstances, not for the purpose of enlarging the depot or furnishing greater accommodation for the cars and the horses, which it is conceded never has been done to this day, but for the purpose of raising the sum of five hundred thousand dollars to meet what was claimed or demanded by these members of the Common Council before they were willing to vote for the concession of this franchise. In this connection, and in reference to all that subsequently transpired, you will still bear in mind that the defendant was the treasurer, and the person apparently co-operating with him immediately was the president of this company. Other persons who signed the articles of association of the Broadway Surface Railroad Company, and who were present at the times when these different votes were taken upon the subject of raising this five hundred thousand dollars, have been interrogated, but they are not the persons apparently who participated actively in either branch of this case. It was committed, on the other hand, to the management of the officers of the corporation, and wherever anything has transpired in reference to it before the Board of Directors of the Broadway and Seventh Avenue Railroad Company, according to the minutes that we have of the meetings, the suggestions or directions of the president of the company, Mr. Foshay,-were generally carried into effect.
Row it is insisted further on behalf of the prosecution that the fact that this money was not used to enlarge the
It has been affirmed in behalf of the defendant that this mortgage was recorded, and that these bonds were authorized by the open and direct action of the Directors of the Broadway and Seventh Avenue Railroad Company. That undoubtedly is the truth, but that, gentlemen, is not the controversy here. This mortgage is openly recorded. It is there where every person can see it. The minutes of the company show that the bonds and mortgage were authorized, but the controversy here is not as to the bonds and the mortgage, but what became of the money. There is where the controversy hinges, and it is upon that circumstance that your attention is directed to the subsequent history and proceedings of this corporation. In addition to the fact that the money was not used for either of these purposes mentioned in the contract or resolution, you have the additional circumstance that this road continued to run along until some time in the year 1885 before the right was
Is it, on the other hand, as the prosecution has urged, a fact of more or less significance in the case that no bank account seems to have contained any part of this five hundred thousand dollars, and that no deposit is shown to have been made of the five hundred thousand dollars either in the safe of the company or in this Safe Deposit Company? Where did it go ? This is a significant question that addresses itself to your consideration. Did it remain in the hands of the defendant in this case, who was the treasurer of this company, or was it in point of fact placed in the hands of some depository between these thirteen Aldermen
Another circumstance that has been referred to in this connection, and is brought into the case by the testimony of Hr. Bamsay, who you will recollect was the auditor and previously the book-keeper of this company, is these monthly statements which have been read in your hearing —the monthly statements of the Broadway and Seventh Avenue Bailroad Company, and they have extended from July, 1884, until and including July, 1885. r ln these statements—and these, of course, if you desire you will be at liberty to take with you—in these statements is a statement of the amount of cash on hand, and at the same time no increase of that amount, no allusion whatever, as a general thing, until late in the season, to this sum of five hundred thousand dollars. Then besides that, after the close of the year 1884, the amount of cash on hand according to these reports that have been read continued to diminish. When the reports commenced it was upwards of two hundred thousand dollars, I think. When the month of December is reached, the balance on, hand is found to be four thousand and some odd dollars, and in order, apparently, to meet the wants of the company at that time, the defendant loans to the company the sum of $5,000, and this is received and used, apparently, according to the book-keeper, in the course of its business. Bow this is a significant circumstance : if this $500,000 was in hand, that it should not have been resorted to for the purpose of aiding the company in its emergency, and supplying it with the money which was needed instead of borrowing it personally from the defendant in this case.
There is another suggestion bearing upon this, and that is, if .the company had the money intact somewhere they may have been disposed to keep it intact to meet the purposes for which it was stated it was raised, and those bonds
These are matters, gentlemen, entirely for your consideration, to give them such weight and effect as you believe under the evidence in the case they ought justly and properly to receive. But beyond this, a resolution was adopted on November 17, 1884, or a statement was made at the meeting referring to the fact that money had been expended in the promotion of this enterprise of the Broadway Surface Railroad Company. This was left entirely indefinite, and on the part of the prosecution quite an extended investigation took place for the purpose of showing that the moneys which had been expended by the Broadway and Seventh Avenue Railroad Company which were referred ,to in this statement of the meeting of November 17, 1884, included no part of this sum of $500,000, but was money that had been drawn in the course of their business out of their usual and ordinary bank account. The vouchers were produced. The witness states that he obtained them from the files of the company. They were produced here, and he has given you what transpired, and what he says passed between himself and the defendant, and Mr. Foshay concerning this subject and the utmost extent of the explanation they were able to give concerning the $500,000.
Of course, gentlemen, you will draw your own conclusions as to the evidence of this witness, and as to the effect to be given to that evidence, and determine for yourselves
Then further is the sum of $237,000 which is charged against this $500,000 for 600 horses and harness that had been bought by Hr.. He well under the authority of the Railway Oommittee, he being the superintendent, and the charge is made against this sum as the price for which those horses were purchased. In the course of the examination of Hr. He well, who testified as to the horses and as their value would appear at that time, he thinks they were worth the sum of $250. It turned out afterwards they were not worth that amount. That is not important in this case. What you have to do is with the valuation of the horses at the time when they were obtained, at the time when their appearance indicated the value, and the person
Another charge made against the five hundred bonds to balance up this account is $50,000 paid to Mr. Ashbel Green. You will recollect his testimony, as he was a witness upon the stand. He testified that he was employed by the Broadway Surface Bailroad Company to render services in its behalf, and obtain consents to the construction of that roád, and that he did so and charged this sum of fifty thousand dollars for it. Then he says that this money was paid to him by Mr. Bichmond, and it was paid to him in bills or certificates of deposit amounting to the sum of ten thousand dollars each. Then, the testimony further is, that
Now you will see yourselves, gentlemen, and, of course, you must exercise your own judgment upon the subject, whether this was a proper charge to be made for the pur. pose of diminishing this fund of $500,000. The same is true as to the hill of Bobinson, Scribner & Bright, amounting to seventy-six thousand and odd dollars. The testimony of Mr. Bright is, as I recollect it, it was paid to him by a check received from Mr. Sharp, and it was for legal services performed by them in endeavoring to obtain these consents, and otherwise in the course of the proceedings of this Broadway Surface Bailraad Company. Did this have anything to do with the Broadway and Seventh Avenue Bailroad Company as a disbursement out of the $500,000?
Then yon have the testimony of' Mr. Waters as to- the $2,500 paid to him. He says he was a surveyor that was employed to look after the construction of this road, and the manner in which the streets were opened and preserved, and that this was not paid to him by this company, but was paid by one of the officers of the Broadway Surface Bail-road Company. This is charged up as against this sum of five hundred thousand dollars. Then there is the account of Mr. Bliss, amounting to the sum of eleven thousand five hundred dollars. Mr. Bliss says he was employed by Mr.
Then there was the amount of money that was paid to settle this suit of Lyddy’s concerning the injunction, $12,500 more. That is charged up against this $500,000 on the books of this company.
Mr. Semple.—That was paid out of the $30,000.
The Coukt .—Then, gentlemen, leave that out. That was paid, as appears, out of the sale or the proceeds of thirty of the first mortgage bonds of this company. It is for you to say, looking at these accounts, this statement of accounts, the charges made against the $500,000 to balance it, including this check of the defendant himself of $47,000, as to what this means—as to its correctness, as to the motive, the object in disposing of and balancing the account in this way. 1, Was it a truthful balance, was it a truthful mass of charges against the $500,000? Was the $500,000 used in whole or in part in this manner ? If it was not, and these charges were unfounded if these charges were fictitious and made for the purpose of creating a balance where in the nature of things it could not be created, it is a circumstance for you to take into consideration as bearing upon the question what was the deposit of this sum of money ? Where did it go ? That is an important question on this part of the ease. Was it used for the purpose of corrupting these Aldermen, and inducing them to act together and give their votes as they did, or has it been used for some other or different purpose ?
Row I have been asked on this part of the case, in these
How, gentlemen, I will read the rest of the requests presented by the counsel relating to this part of the case, and to the effect of the proof that we have already been considering.
“ That the jury connot find the defendant guilty, as charged in the indictment, without proof beyond reasonable doubt, that he knowingly and intentionally paid or participated in the payment of a bribe to said Fullgraff, for the purpose and with the intent alleged in the indictment; and that it is not enough to show suspicious circumstances sufficient to show that defendant knew that such a bribe was
I think I have already suggested that to you, and endeavored to make it as clear as the proposition itself states it. And that is undoubtedly the law.
“ Proof of the intent is just as essential as proof of the fact itself of giving or offering money.”
That is undoubtedly the truth. The essence of a criminal offense in all cases consists of the intent. There must be an unlawful, there must be a criminal intent, and before the defendant may be convicted under this indictment he must be found to be actuated by such an intent, and not only actuated by the intent, but in pursuance of it to have contributed in some form, either directly or indirectly, to this money going into the hands of the Aldermen or into the hands of Fullgraff for the purpose of influencing him in the giving of his vote.
“ The intent, which is an essential element of the crime and must be proved beyond a reasonable doubt, is an intent to influence Fullgraff contrary to his duty as an Alderman.”
That undoubtedly is so.
“ The jury must acquit the defendant unless they find that his motives were corrupt, and that he corruptly participated in the offering of money for the purpose of influencing Fullgraff contrary to his duty as a member of Board of Aldermen.”
That is substantially a repetition of the other, and is, of course, equally true.
“If the jury find that the alleged bribe was not paid or offered for the purpose of corruptly influencing an Aider-man and seducing him from the performance of his duty, they must acquit the defendant—in other words, before they can convict the defendant, they must find that he corrupted or attempted to corrupt Fullgraff.”
That is the same thing, and, of course, is correct.
I have already explained that.
“ The prosecution must prove affirmatively and beyond reasonable doubt that these $500,000, or some portion of them, were raised to influence the Aldermen to act contrary to their duty, and that the defendant with guilty knowledge and corrupt motives actively assisted and aided and abetted in raising the money for that purpose, and with the intention that it should be used for that purpose.”
I have already read to you, gentlemen, the provision of the Penal Code under which this indictment has been found, which requires as much as that to be established in the case.
“ It is not enough for that prosecution to prove what bribery may have been committed, and that the defendant may have'had reason to suspect it, at the time or afterwards, or that he acquiesced in it, or derived any advantage from it, directly or indirectly.”
Those facts of themselves would not be sufficient to make out this case. It necessary that he himself should have participated in, and been in some measure the means of raising this money with a criminal intent, and then afterwards coming into the hands of these Aldermen, or some of them, or some depository to their use, to reward them for this vote of the 80th of August, 1884.
“The prosecution must prove something more than mere suspicion, knowledge or acquiescence on the part of the defendant or benefit derived. They must prove beyond all reasonable doubt that the defendant actively participated in the perpetration of the crime charged in the indictment some time prior to August 30,1884; that prior to that time he actively participated in the alleged act of giving or offering money to Fullgraff, and in the alleged corrupt intent of giving or offering it to him for the purpose of seducing him from the performance of his duty.”
That is very much a repetition of the other, and what has been said as to the others is equally applicable to this.
That is the case, and so conceded by the prosecution.
“ In order to support the charge contained in this indictment, it is necessary for the prosecution to prove that the defendant performed some overt act in relation to bribing Fullgraff.”
Perhaps this word “ overt” is not designed to have any especial significance here. What is necessary is, he should be to proved have performed some act intended to contribute orbring about this result.
“In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
I have already so said to the jury.
“ In order to justify a verdict of guilty against the defendant, the evidence must be such as to exclude every hypothesis but that of his guilt of the offense imputed to him in this indictment; or, in other word's, the facts proved must not only all be consistent with, and point beyond a reasonable doubt to the defendant’s guilt, but they must be inconsistent with his innocence.”
That is a further repetition, and is undoubtedly true.
“ Evidence which leaves it uncertain which of two or more inferences from the facts proved is the true one, or merely establishes a probability, no matter how strong, in favor of one conclusion, does not amount to proof.”
It must tend to establish the probability of guilt beyond a reasonable doubt, and if the facts are of such a character as to balance the case beyond a reasonable doubt against the defendant, then it is made out; otherwise it is not.
“ Each link in the chain of circumstantial evidence must be established to the same degree of certainty as the main fact itself.”
“ And all the facts taken together must be not only consistent with one another, but must also be in consistent with the innocence of the accused.”
That, gentlemen, you recollect, I have just said.
“ The inferences of fact to be drawn from circumstances are exclusively for the jury.”
There is no doubt as to that.
“ And if the facts which are claimed by the prosecution to point to the guilt of the defendant, are equally consistent with innocence they do not make out a case against the defendant.”
“ The reasonable doubt which would make it the duty of the jury to acquit the defendant may rise from the want of credibility of the witnesses upon whose evidence the prosecution must rely to convict.”
Undoubtedly that is the case, or it may arise from any other source which in the ordinary course of the exercise of judgment would suggest its existence.
“ The measure of that reasonable doubt of the defendant’s guilt which will entitle him to an acquittal, is a question addressed to the judgment and conscience of each individual juror, and no juror should agree to a verdict of guilty unless he is convincéd of the defendant’s guilt beyond a reasonable doubt, and he must be convinced of that, not upon suspicion, not conjecture, not belief, but upon the evidence and the evidence alone.”
What that means you will see is this, that each juror must exercise his own judgment. Each juror must consider the weight and effect of the evidence as it bears upon his mind. And if any juror has a reasonable doubt concerning the existence of the guilt of the defendant, he is required to give the defendant the benefit of that doubt on his own separate and individual judgment, and not on the judgment of any of his associates. What the law requires to convict a person for a crime, is that the evidence establishes guilt in the mind of all the jurors beyond a reasonable doubt. And if it fails to do that, if that is not its weight, strength and effect, then the defendant is entitled to the benefit of that doubt.
“ The acts and words of Jaehne, De Lacey, Sharp, Fosháy, ¡Richmond and the others are not evidence of a criminal conspiracy against the defendant, and cannot be considered by the jury as such evidence.”
I have added to that, “ unless to carry out a common
“ And their acts and sayings cannot be considered as evidence for any purpose whatever, unless the jury finds from the evidence of the. defendant’s own words and acts, and independently of the words and acts of these other persons that the defendant was engaged with these other persons in a criminal conspiracy.”
That is what I have just said to you, gentlemen. Unless there is a combination, and up to the time when the combination is shown to take place, the acts and statements of other persons are not admissible against the defendent. He would be responsible under those circumstances only for his own acts and his own statements. To illustrate: if defendant and Mr. Fosliay were engaged in bringing about a common result in this respect they were acting together, co-operating with each other; what each one did, what each one said that was explanatory of the act would be admissible as against the other; but if there was no combination or no fraternity, no action, what Fosliay did or said would not be admissible against the defendant, Mr. Kerr. But the evidence against Mr. Kerr under those circumstances would be confined solely and exclusively to what he himself did.
“ A conspiracy in law is a combination to commit crime. In order to find that the defendant entered into any conspiracy, the jury must find from the evidence of the defendant’s own words and acts, that he formed one of a combina
This proposition, as I understand it, intends to bring out this principle : that you cannot establish a criminal combination between one or two persons, and the third person by what the one or two may say and do themselves. That undoubtedly is the law. You must show that the third person co-operates with them before he can be made responsible or accountable for what they themselves do in his absence.
“ The simple fact that parties are engaged together in a common railroad enterprise is in itself no evidence of a conspiracy, nor is it in itself any evidence of any conspiracy that parties are interested in obtaining the consent of the Board of Aldermen, and worked together for the purpose of obtaining that consent.”
That undoubtedly is the case. If they were merely engaged in bringing about a railroad result or railroad enterprise, then what they did in that respect would be entirely harmless and innocent, and would have nothing to do with the criminal intent.
“ There is no evidence in this case that the defendant had any personal pecuniary interest in the bonds or stock of the Broadway Surface Railroad Company, or in the expected profits, of that enterprise.”
I have added, “ except that he subscribed for stock in the company;” and by the Articles of Association it appears that he subscribed for one hundred shares of this stock. What is claimed in this case as his interest tending to lead him into the performance or consummation of a plan, as it has been said in this indictment, was his interest in the Broadway and Seventh Avenue Railroad, whose president stated, you recollect, at the meeting where he was present, and whose minutes were signed by him, that it was deemed important to unite with other persons to bring about this result, and the reason there assigned, and some evidence appearing from the papers indicating the importance with
Mr. Bird.—Will your Honor state in that connection that there is no evidence of any certificate of stock of the ■ Broadway Surface Railroad Company ever having been issued to him ?
The Court.—There is not. The evidence is the other way. The only evidence is that this one certificate was issued to Mr. Sharp for 9,250 shares, and afterwards went into the hands of the Broadway and Seventh Avenue Railroad Company.
“ Corroboration of Fullgraff will not be sufficient, if it only relates to immaterial and unimportant matters. It must directly tend to the establishment of the distinct fact that there was an agreement to bribe Fullgraff, and that his vote was directly and corruptly given in pursuance of such agreement.”
That is undoubtedly so.
“ Corroboration of Fullgraff must not only tend to the establishment of the fact that there was an agreement by which he was to receive a bribe, and that it was in consequence that he gave his vote, but that he agreed in the manner and under the circumstances detailed by his evidence, and if such evidence does not tend to corroborate such manner and circumstances, it is insufficient, and the jury should acquit.”
I have already said all that is necessary upon this subject : that you must find that he is corroborated, and so far as he is corroborated, and then determine for yourselves whether he has made a truthful statement here, or whether he still stands in such a situation as to induce you to think that his testimony ought not to be believed.
There are two or three requests which have been handed to me which I will now call your attention to. The first is that the case as it is made in the indictment shall be made out by the proof before the defendant can be convicted.
“ That the statement alleged to have been made at the meeting at McLoughlin’s by Jaehne or De Lacey to the effect that offers had been made of the sum named by the Broadway Surface Bailroad Company is no evidence against the defendant that such offer or any offer had in fact been made by said Bailroad Company or by any one.”
I have already said to you that what transpired between these Aldermen is no evidence against the defendant unless you are satisfied that the evidence connected him with these persons to carry out by his contribution of money, his aid, or assistance, the object that they had in view, and which it is stated to have been the purpose of this meeting to consummate.
“ That the alleged statement by De Lacey to Fullgraff that the money was wp, is no evidence against the defendant that the money or any money was in fact up.”
That, of course, is included in what has been said.
“ That there is no evidence in the case that any money or other valuable thing was paid or given to Fullgraff for his vote, or promise to vote for the application pending before the Board, as averred in the indictment, and there can be no conviction of the defendant of bribery for giving or paying such money.”
That I decline to charge, because the evidence is sufficient to allow that question before you for your consideration.
“ That the. jury must therefore find, before they can convict, that the defendant offered, or promised to give money or some valuable thing to Fullgraff for his vote on the application alleged in said indictment.”
I have said that so many times that I fear I am wearying you.
“If Jacob Sharp was ‘by the agreement bound to construct, equip, and in all respects complete the Broadway Surface Bead, and pay all the expenses of perfecting and
That undoubtedly is true without the preamble, and I have so said to you several times,—that it is necessary there should be absolute participation on the part of the defendant before he can be convicted. The question is, was there such a participation ? Did he actively as a principal member raise this amount of money, and either directly or indirectly get it into the hands of some person before the vote was taken in August, 1884, by which these men were assured that the money was to be paid to them upon a favor able vote for the resolution, and did he do that designing to fulfill a mere corrupt bargain, to make himself a party to a corrupt bargain that had been made or taken place between these Aldermen ?
There is another subject I should call your attention to. Upon the part of the defendant he has introduced nine of the ten witnesses who have testified to his good character. That evidence you are to consider in the case precisely the same as you consider the rest of the testimony submitted for your consideration. A man always has the right in a criminal prosecution to put in evidence concerning his former good character. It is not, however, conclusive in his favor. It is simply evidence to be considered with all the other testimony for the purpose of determining whether the proof, taken as a whole, establishes his guilt beyond a reasonable doubt. If it does not, even this evidence may of itself create a reasonable doubt, and if it does he is en
Of course, gentlemen, it is an unfortunate duty sometimes that juries are required to'perform, but the law places it upon your shoulders and you are bound to stand by it, and meet it like men of courage and intelligence, and if you are satisfied that the defendant is guilty beyond a reasonable doubt notwithstanding the fact that he before this time has maintained this excellent character, yet if he has swerved from it, and swerved from the influences and inclinations by which it has been heretofore credited, he is in judgment of law culpable, the same as any other individual would be whose case may be tried before a court and jury for consideration. It is unfortunately true, gentlemen,—too true for the credit of human nature,—that there is that lurking weakness in the human organization that will sometimes and perhaps on frequent occasions, yield to the inclinations of temptations. Even men of the best standing, men of the most assured life of long and approved integrity and fidelity in all its relations, are found on occasions where these temptations are presented to them to yield, to give way, and fall into the commission of crime. We have been taught to invoke, and it has been invoked by millions, protection against temptation. It is this temptation that results so often in the commission of crime. It subverts human character, it destroys human integrity, it entirely uproots human fidelity, and men under the influence of temptation, under the impulse of the occasion will give way
Mr. Bird.—I ask your Honor to charge there is no case ' in which the jury may not, in the exercise of a sound discretion, give a prisoner the benefit of a previous good character. Ho matter how conclusive the testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the probabilities, that a person of such character would be guilty of the offense charged, that the other evidence in the case is false, or the witness mistaken. An individual accused of crime is entitled to have it left to the jury to form their conclusions on all the evidence, whether he, if his character were previously unblemished,
The Court.—I have so said to you, gentlemen.
Mr. Ingersoll.—I think your Honor said to the jury that the first report made to the State Commissioners showed $200,000 cash on hand.
The Court.—I did not say that. I said that the monthly report did.
Mr. Ingersoll.—The monthly report, $200,000 in cash. That was the first testimony of Ramsay, but his attention being called to it he swore that the $200,000 was made up of an item of 178 first-mortgage bonds.
The Court.—Yes, I think the counsel is correct as to that. It is not important as to the amount. The importance is in the statement that it was cash on hand.
Mr. Ingersoll.—Also, in the first report made after the sale of the five hundred thousand it was set forth that seventy-five of the first-mortgage bonds had been used in placing five hundred second-mortgage bonds.
The Court.—Yes, I so stated.
Mr. Ingersoll.—I wish to except to all that part of your Honor’s charge in which you refer to a feeling that existed in the legislature that the crime of bribery was growing, and that there was a necessity for legislation upon that subject.
The Court.—That was referred to as simply incidental, for the purpose of showing the resolution. You can dismiss it entirely from your minds.
Mr. Ingersoll.—Also to that part of the charge in which it is stated that the jury may believe Fullgrafi’s testimony in and of itself without corroboration; but, as I understood the court there could be no conviction upon the testimony without corroboration, I except to that part where it can be of any use whatever unless it is corroborated in a material part.
The Court.—Yes, I have already said so to them in reading these other requests.
The Coubt.—I so stated; while the law had been changed, the question was still for the jury, what weight or effect was to be given to the testimony.
Mr. Ingersoll.—Also to what your Honor stated as to the testimony of Mrs. McLoughlin.
The Coubt.—I have stated to the jury that they will be governed entirely by their own recollection of what the testimony is in the case.
Mr. Ingersoll.—Also to that part of the charge in which it is held that the success of the petition before the Aider-men and the various votes given tend in any way to support the testimony of Fnlgraff.
The Coubt.—I did not say the success ; I said the proceedings and the votes.
Mr. Ingersoll.—Also to that part of the charge that the fact of the resolution offered by O’Connor to sell a franchise at auction, the failure of that resolution tended in some way to corroborate the testimony of Fulgraff.
The Coubt.—You are to consider it as part of the proceedings before the Council in that respect.
Mr. Ingersoll.—And to all acts and proceedings touching the Board of Aldermen after the 30th of August,
The Coubt.—Those proceedings are admitted so far as they tend to indicate what the motive was upon the minds of the persons who were sustaining and voting for those proceedings, not because they make out an indictment itself, but because they tend to establish what was the understanding or state of mind of Fullgraff and the others with him prior to this vote on the 30th of August, 1884.
Mr. Ingersoll.—That we except. I also except to that part of the charge statihg that any agreement between the
The Court.—Ton consider that simply as a circumstance, as I have already called your attention to it as indicating the object of raising this five hundred thousand dollars.
o
Mr. Ingersoll.—I except to it as qualified.. I also except to the language as to the jury “ finding the probability of guilt beyond a reasonable doubt,” insisting that the word “ probability” should not be there, and the jury must find not a probability of guilt beyond a reasonable doubt, but they must find the fact of guilt beyond a reasonable doubt.
The Court.—I have so said to the jury several times.
Mr. Ingersoll.—Also with regard to each link of the testimony ; and I now ask your Honor to instruct the jury that each material link,—that is to say, each material fact, —must be established beyond a reasonable doubt.
The Court.—Tes, the entire case ; when you come to consider the facts and bind them together, then the question comes up on the entire case whether you have such a reasonable doubt or not.
Mr. Ingersoll.—I except to that part of the charge which I understood as being that the fact that Mr. Fullgraff testified $500,000 had been offered in connection with the fact that five hundred one-thousand-dollar bonds were issued by the Broadway and Seventh Avenue was or is not a coincidence ; and I except to that for the reason that the fact that five hundred of these bonds were issued by the Broadway and Seventh Avenue was still known to Fullgraff before he gave his testimony, and consequently it does not tend to show a coincidence of facts, but only tends to show that a witness has to a certain degree made his evidence fit what he knew to be a fact.
The Court.—Ton can take it in that form with the argument. I will not say anything further.
Mr. Davis.—I desire to call your attention to one thing. In speaking of the immunity granted to Fullgraff, I understand your Honor to say to the jury that it was all in consequence of the testimony taken, because after the first occasion when he gave his testimony the statute gave him immunity.
The Court.—Ho, the law gives him immunity.
Mr. Davis.—What I wish to call your Honor’s attention to is the fact that the district attorney gave him immunity, not merely from the bribery how under consideration, but from the perjury that he had committed. He himself swears that it was agreed he should not be prosecuted for the perjury before the Senatorial committee.
The Court.—You can consider that, gentlemen. It is not necessary to discuss it. You will consider that, and, of course, you will consider the further matter that is now brought up, and in the testimony of Fullgraff is his statement that when the district attorney induced him to testify that he was asked simply to testify the truth.
Any objection to the jury taking this contract?
Mr. Ingersoll.—I would like to have the jury take all the papers, if they take any.
The Court.—If they want any papers you are willing they should have them ?
Mr. Ingersoll.—Yes ; anything they ask for.
The Court.—[To the jury.]—Do you desire any papers ?
The Foreman.—I would like the contract.
The contract was then handed to the jury.
The jury then retired.
The jury returned into the court, and found a verdict that the defendant was not guilty.