People v. McKane — 9 N.Y. Crim. 352

Majority

p. 352

Supreme Court — General Term — Second Department.

July 27, 1894.

PEOPLE v. JOHN Y. McKANE.

(62 St. Rep. 6; 80 Hun, 322.)

Headnote

1. Oyer and terminer—Extraordinary term.

Appointment of “an extraordinary court of oyer and terminer” is a sufficient appointment under section 334 of the Code.

3. Same—Grand jury.

A grand jury may be ordered for an extraordinary term of the court of oyer and terminer, though a grand jury for the regular court of sessions has been drawn.

3. Evidence—Declarations—Co-conspirators.

Acts and declarations of co-conspirators, though not parties to the record, are admissible against the defendant.

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4. Same. •

When justice requires it, the declarations of conspirators will be received before proof of the conspiracy.

5. Same.

On the trial for a conspiracy to commit a crime, evidence bearing on defendant’s ability to form the conspiracy is admissible.

6. Same.

Evidence that defendant used his official powers for the benefit of the election officers, is relevant on the trial of an indictment for co-operation in violating- the election laws.

7. Same—Best and secondary.

Election returns are the best evidence of the facts therein stated.

8. Same—Reputation.

The prosecution may, where the defendant has offered evidence that his general reputation is good, show what his reputation is in regard to particular matters.

9. Evidence—Charge.

Various questions as to evidence and instructions to jury, decided

George W. Roderick (Edward C. James, of counsel), for appellant.

James W. Ridgway, Dist. Atty., Benjamin F. Tracy and Edward M. Shepard, for the People.

The court of oyer and terminer, at which the defendant was indicted, was held in pursuance of an appointment made by the governor. Section 234 of the Code of Civil Procedure provides that “the governor may, when, in his opinion, the public interest so requires, appoint one or more extraordinary general or special terms of the supreme court, or terms of a circuit court, or court of oyer and terminer.” . The language of the governor’s appointment is: “I do hereby appoint an extraordinary court of oyer and terminer to be held,” etc. The counsel for the appellant urges that the power to appoint an extraordinary term of the court of oyer and terminer is not complied with by appointing an extraordinary court of oyer and terminer, and that no power exists to appoint such extraordinary court, and hence that

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the appointment was a nullity, and all that has been done under it void. We do not think this contention valid—it is based upon a verbal difference between the form of the statute and the form of the appointment—but there is no mistaking the fact that the governor intended to appoint, and did in fact appoint, an xtraordinary term of the court of oyer and terminer. If the language of the appointment is susceptible of two constructions, that one must be preferred which validates the appointment, instead of that which invalidates it.

The defendant moved to set aside the indictment upon the ground that the grand jury of the county of Kings, lawfully impaneled by the court of sessions, was in session from December 4 to December 30, 1893, during which time the grand jury for this extraordinary term of the court of oyer and terminer, which found the indictment against the defendant, was in session; the contention being that while one grand jury is in session another cannot be convened.

Section 225 of the Code of Criminal Procedure provides that “a grand jury must be drawn from every term of the following courts: * * * the court of sessions of the county of Kings.” Section 226 provides that “a grand jury may also be drawn for the court of oyer and terminer of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district.” Mr. Justice Cullen, of the second judicial district, made the order for drawing this grand jury. The court was none the less a court of oyer and terminer because the term was of either extraordinary instead of ordinary. The statutory authority for drawing this grand jury is ample.

The defendant demurred to the indictment, in that it did not contain a plain and concise statement of the things constituting the alleged crime. This defect is alleged to exist in the statement of the' acts charged to have been committed by the inspectors. The crime charged in the first count of the indictment is “willfuly violating a provision of the election law relative to thé registration of electors.” Section 41c. of the Penal Code provides that: “Any member or clerk of the registry board who willfully

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violates any provision of the election law relative to the registration of electors or willfully neglects or refuses to perform any duty imposed upon him by law or is guilty of any fraud in the execution of the duties of Ms office shall be punishable by imprisonment for not less than two or more than ten years.”

Thus the crime charged in the indictment is a crime specified in the statute. The defendant McKane, however, was neither a member nor a clerk of the registry board. But section 29 provides : “A person concerned in the commission of a crime, whether he directly commits the acts constituting the offense or aids and 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.”

Hence it follows that, if any member or clerk of the registry board of the first election district willfully violated any provision of the election law relative to the registration of electors, and the defendant McKane aided and abetted in such violation, whether he himself was present or absent, or if he directly or indirectly counseled, commanded, induced, or procured any member or clerk registry board, and therefore cannot embrace the defendant McKane) was guilty of the same violation, not as an accessory, but as a principal. The objection that the crime defined in section 41c is therein limited to the officers composing and assisting the registry board, and therefore cannot embrace the defendant McKane, is clearly met by section 29, which, by the aptness and comprehensiveness of its terms, includes those who have aided and abetted the violation of the law, or counseled, commanded, induced or procured its violation by the officers charged with its administration. Section 29 makes the acts and not the offense of the offender the test of Ms crime. The action in the indictment being a crime defined by the statute, it remains to be seen whether the charge against the defendant constituted a crime whereof he is accused.

Clearly, under the two sections of the Penal Code just cited, the specifications should allege that some clerk or members of the registry hoard did some act or acts which amounted to a willful

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violation of some provision of the election law relative to the registration of electors, and that the defendant McKane aided and abetted or counseled, commanded, induced, or procured the officers, or some one or more of them, to do these acts. From the nature of the case, the acts of the officers constituting a violation of the law would seem susceptible of plain and direct statement, and we find such a statement. Sections 31, 32, and 33 of the election laws (chapter 680, Laws 1892) provide that the inspectors of election in each election district, and elsewhere than in a' city, shall meet on the third and second Saturdays before each general election, and prepare, at such meetings, a list of the names and residences of persons qualified to vote in such election district at such election, which list, when completed, shall be the register of voters of the district for such election. The inspectors shall append to the list a certificate to that effect, and this certified list shall remain in the custody of the chairman of the inspectors until the close of the polls on election day. But the inspectors, not later than the Monday following the first Saturday of their meeting, shall make three certified copies of such original list and certificate, one of which chalí be conspicuously posted in the place where such meetings have been held, and one shall be retained by each of the other inspectors until the close of the polls of such next election. Such list and registry of voters, and the certified copies thereof, shall, at all reasonable hours, be accessible to the public for examination or for making copies thereof.”

The indictment alleges that the inspectors composing the board of registry did make and complete a certified and original list of persons qualified to vote in the first election district at the next general election. It does not allege that they made any certified copies, but it does allege that they did willfully and knowingly neglect and refuse to have such list of registry of voters, and three certified copies thereof, accessible at all hours to the public for examination, and for máking copies thereof. The defendant urges that, because it is not alleged that these copies were made, therefore it could not be alleged that any one or all of them were withheld or concealed. It may be literally true that a nonexisting

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paper cannot be concealed, bnt it is also true that an effective way to withhold a paper, which the law commands to be copied and accessible, is to refuse to make it.- It is withholding its accessibility by withholding its existence. Proof that it was not made would tend, in connection with other circumstances, to support the allegation that the .inspectors refused to have it accessible. The defendant also contends that the registration was not completed, and therefore the subsequent withholding or concealment of the list and copies was not a violation of any provision of the law “relative to registration.” But the law requires the registration to be made, and one copy posted, and the original list and two copies to be otherwise accessible to the public. Thus the publicity of the registry is an essential feature, of the law “relative to the registration of electors.” The publicity of the registry may be subsequent to the mere act of registration, but the law relative to registration provides for its publicity, to the end that the registration shall have all the beneficial association publicity can give it, and all the safeguards for verity and fairness which a jealous and vigilant public scrutiny can secure. The law relative to the registration may be regarded as one subject, embracing all the details necessary to its completeness and efficiency; thus making every one of such details part of the law relative to the registration. s

The indictment then proceeded to specify, in connection with the crime of the inspectors, how the defendant McIIane was concerned in the commission of the crime; and he said John T. McKane did, then and there, feloniously, unlawfully, and knowingly counsel, command, induce and procure, aid and abet the said John W. Murphy, Morton Morris, and John H. Brownhill to so neglect and refuse to have such list and registry of voters, and three certified copies thereof, at all seasonable hours, accessible to the public for examination, and for making copies thereof. The indictment then further alleges that the defendant McIIane and the defendants the inspectors did feloniously and willfully cause -and procure that the said list of registry of voters, and three certified copies thereof, and each of them, should not be accessible to the

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•public for examination, or for mating copies thereof, but should be concealed from, the public, whether for examination or for mating copies thereof. The defendant does not contend that the acts which charged against him aiding and abetting, commanding, inducing, and procuring are not sufficentlv alleged. The second count of the indictment differs from the first only in charging the crime; the specification of the facts constituting it is the same as in the first count. The second count charged the crime as follows : “And the grand jury aforesaid, by this indictment, do further accuse the said John Y. McKane, J. W. Murphy, Morton Morris, and John H. Brownhill, and the said Murphy, Morris, and Brownhill being members of the registry board, of the crime of willfully neglecting and refusing to perform the duties imposed upon them, the said Murphy, Morris, and Brownhill, by law, as members of the registry board,” etc.

The learned counsel for the defense insists that, since the statute requires the chairman of the inspectors to take into his custody the original registry list, and each of the other inspectors to take into his custody one of the certified copies, all of which shall be accessible to the public, and that, if the crime proved had been the concealment by one inspector only of this list, without participation by the others, then such crime would not bo neglect of dutybythe inspectors as members of a registry board, as charged in the indictment, but of the offending inspector only, and, therefore, if the defendant McKane did aid and abet him, he would not bé guilty of the crime whereof he was accused, but of some other crime.

Theoretically, this may be conceded,- but the concession would not go to the sufficiency of the indictment, but to the sufficiency of the proof of the general crime charged in the indictment. The trial court, at the request of the defendant’s counsel,- charged the jury “that, although the jury may be satisfied that the defendant was guilty of other crimes or violation of the election law, it is their duty to acquit unless they find him guilty of the particular crime charged in the indictment.” The court also instructed the jury that their .first duty was to determine whether the guilt of

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the inspectors was made out, and also added: “It is essential, to maintain the case for the prosecution, that you should be satisfied by proof which leaves no reasonable doubt in your minds that the inspectors of the first election district did neglect and refuse to perform the duties which the law imposes upon them in respect to keeping the registry list, and certified copies, accessible to the public.”

The evidence on the part of the people was directed to show that the keeping of the registry list inaccessible to the public was the common purpose and act of all the inspectors. We conclude that the suggestion of error arising from the possible guilt of one inspector, and the innocence of the others, presents a hypothetical, and not an actual, case before us. The defendant specified, as a further ground for the demurrer, that more than one crime is charged in the indictment.”The indictment thus clearly shows that each inspector is not charged with a separate crime, in addition'to the joint crime in which the defendant McKane is charged with participating. Of course, the charge of a joint commission of crime implies the charge of the individual one of each person joined in the charge, and, in a proper case, may admit of the conviction of one and the acquittal of another defendant. But this is not to charge two separate crimes against one defendant, but to charge one crime against two or more defendants.

This indictment contains three counts. The facts constituting the crime are the same in each. The crime charged in the first count is the willful violation of the election law relative to registration; in the second count, the willful neglect or refusal to perform a duty imposed by law; and, in the third, the willful commission by the inspectors of a fraud in the execution of the duties of the office. Section 41c of the Penal Code, above quoted, groups these three crimes together. It is possible that cases may arise in which the distinction between these crimes will be clearly apparent. Upon the trial, it was thought that the facts charged as constituting the crime were less clearly applicable to the third enumeration of crime than to the first and second, and then the third count was abandoned as unnecessary. The distinction

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between the two crimes charged in the first and second counts is not here clearly seen. The willful violation of law and the willful neglect to obey it, must be different forms of stating the same substance, since both may result from the same acts. Such is the case here. Section 279 of the Code of Criminal Procedure aptly meets such a case. It provides: “Where the acts complained of may constitute different crimes, such different crimes may be charged in separate counts.” There are many exceptions to the warrants of the court upon the admission of evidence. The learned counsel for the- defendant, in pressing these exceptions upon our notice, practically ignores the fact or theory of the conspiracy upon which the people presented their case upon the trial, and the rules applicable in cases of conspiracy under which the trial court admitted much of the evidence excepted to.

The theory of the people was that the defendant McKane, and the inspectors of election of the six election districts of the town of Gravesend, and several members of the police force, and some members of the town judiciary entered into a conspiracy to accomplish the concealment of the several registration lists of the six election districts, that is to say, to prevent any examination or copying of the lists by any persons not in political sympathy with McKane, and especially by W. J. Gaynor and his representatives. Mr. Gaynor, at the time, was a candidate for election at the general election, about to be held, for the office of justice of the supreme court in the second judicial district of the state, a district which embraces Kings county, and thus the town of Gravesend.

If such a conspiracy was shown to exist, then the acts and declarations of any of the conspirators. in furtherance of the conspiracy was admissible in evidence against the defendant McKane, one of the members of it. It is not necessary that the co-conspirator, whose acts and declarations in furtherance of the ends of the conspiracy are offered in evidence, should be a party to the record. It is plain that the indictment or indictments of the conspirator, whose acts and declarations are offered against his fellow, can neither impart any quality of verity or of relevancy to such acts and declaration, nor withdraw it

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from them; hence his inclusion or exclusion as a party to the indictment is not material. The evidence given tending to prove the conspiracy was circumstantial in its character, from the very nature of it. Part of the evidence tending to prove a conspiracy tended also to prove what the conspirators did in furtherance of it. While the general rule is that a corispiracy must be shown before the acts and declarations of the conspirators, and other than the defendant upon trial, can be admitted in evidence, yet this rule, wisely framed for the protection of the defendant, is not so urged as to require a sacrifice of truth and substance to matters of form, in order to forbid the trial judge to receive evidence in such order or to such extent as will develop as clearly as possible the whole truth. It may well be that the whole story must be told, before the court or jury can be sufficiently instructed to pass definitely upon the preliminary fact, the conspiracy itself. The narrative all told, it may yet be such a disputed question that the' defendant is entitled to have the jury pass upon it. It may, therefore, in order that justice be stated at the threshold of the trial, be left entirely to the discretion of the trial court to determine as to the order of proofs.

We must look at the whole evidence to see whether fact of the conspiracy was sufficiently proved to justify the admission of the acts and declarations of the defendant co-conspirators as part of the very res gestae of the attempted execution of the conspiracy itself. We can undertake to present here but the mere skeleton of the propositions of fact by which the inference or the existence of the conspiracy was sought to be conclusively implanted in the minds of the court and jury, and will show the reason for the admission of the several masses of circumstantial testimony, so as to realize its wonderful force.

I. The motive of the defendant McIIane to form and execute such a conspiracy was alleged to be to maintain and' increase the prestige of political power which he had already acquired by controlling the vote or returns of the vote of his town and abnormally increasing its numerical and almost unanimous total. Especially,

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also, to deprive Mr. Gaynor of the means of preventing swollen returns adverse to his election.

2. The means and ability of McKane to form such a conspiracy embraced a mass of facts tending to show his extraordinary political, official, and unofficial power in the affairs of his town and townsmen, and his relations with, and influence over, the alleged conspiracy.

3. Especially was his opportunity to form such a conspiracy increased by the fact that the six election districts of the town were so laid out that every one of them embraced a part of the town hall building wherein was located the registration office and polh -ing place of every district.

4. It was shown that the registration lists in all the districts were kept inaccessible to Mr. Gaynor and his agents, despite their repeated and persistent efforts to obtain access to them or to some •official copy of them. Their efforts to obtain access, and the means by which their efforts were baffled, tend to suggest the in.quiry,—and possibly to answer it,—by whom were these things ■instigated, counseled, and abetted, and for what purpose, and how wide must the conspiracy have been, to have been so successful?

5. Mr. Gaynor, finding obstacles to his inspection of the registry lists,' apparently interposed by McKane, vigorously asserted and prosecuted his clear right to the inspection of them, in spite and in contempt of McKane and his power. This action by Mr. Gay-nor seems to have provoked McKane; his power and prestige were threatened, and, it is not impossible, his sense of the enormity of the crime was obscured by his ambition to maintain his supremacy.

It is also proper to observe that the people sought to show: (1)1 ThatMr. Gaynor’s agents, upon inquiry and inspection at the polling places in the town hall, did not find any lists posted where they could examine them. (2) That, upon inquiry of the single policeman in charge, they were informed that McKane’s orders for inspection must first be obtained. (3) That McKane, upon being informed that such obstruction existed, assumed responsibility for it, and promised to remedy it. (4) That McKane did not keep

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his promise; warned Hr. Gaynor that he would have a hard-job of it. (5) That Hr. Gaynor notified HcKane in writing that he should send the necessary men to Gravesend to copy the rolls. (6) That thereupon pretended copyists were selected from subordinates of the appellant or defendant, upon his power as chief of police, to monopolize the poll lists, so as to keep them inaccessible to Hr. Gaynor’s agents. (7) That the pretended copyists, acting immediately under the direction of one Sutherland, a justice of the peace, and a member of the board of police of Gravesend, did, at the town hall, by pretending to make copies, keep the lists inaccessible to Hi*. Gaynor’s copyists, who made repeated attempts during several days to gain access to the lists; and'that Sutherland acted in concert with HcKane, with the inference sought from all the circumstances. (8) That Hr. Gaynor applied to the supreme court for a mandamus against the inspectors of all the districts to compel "them to permit him to copy the lists, but was defeated, as to all the districts save the sixth, in consequence of the affidavits made by the defendant and others, HcKane employing counsel for the purpose. HcKane’s affidavit confirmed some of the above statements. (9) That Hr. Gaynor, by his agents, then sought to obtain copies of the lists in the hands of the individual inspectors of the several districts. There were eighteen of these inspectors. TJpon inquiry and search, these inspectors were not then found, except that late on Honday before the day of election, under pressure of mandaimis, an inspector in the sixth district permitted his lists, the least important of all, to be inspected. (10) That Hr. Gaynor, failing of success during the week ending Saturday preceding the election, sent his copyists, twenty-two in number, to Gravesend about midnight on Saturday, to the end that they might find the several inspectors at home early Sunday morning, and possibly thus succeed in obtaining at their homes the desired copies of the lists. When the copyists arrived at Gravesend, fourteen alighted at the station near the town hall, and were arrested upon the order of the appellant, who had previously received notice that they were coming to obtain copies of the lists. These copyists then arrested were kept in dur

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anee until released upon habeas corpus proceedings on the following morning. Thus rested that day all attempts to procure the copies. (11) Mr. Gaynor had notified McKane that he would have the election watched during the election day, in order to prevent or avoid fraud. He sent sixteen men to Gravesend, for that purpose, on the Monday evening previous to election. About twenty gentlemen volunteered their assistance, and rode from Brooklyn to Gravesend on the early morning of election day. Twelve of these gentlemen had received appointments as Republican watchers, in apparent pursuance of section 103 of the election law. They also had received for service an injunction order issued the previous day by Mr. Justice Barnard, restraining the defendant and others from preventing these Republican watcher» from acting as such, with the privileges the law confers upon such watchers. By the efforts exercised by the police of Gravesend, under the direction of the defendant, the men and watchers were assaulted, and some of them arrested. The sixteen men sent to watch outside the hall were forcibly kept at such a distance that they were helpless and useless. The injunction, when the attempt was made to serve it, was treated with open contempt by the defendant.

Reference should be made to some of the evidence tending to show the belief in the ability of the defendant to cause the making of false return. We can readily understand, as we proceed with the examination of the record, the corroboration which one series of facts gives to another. The relation which existed between the facts, at first disconnected and remote, form each their motive and explanation for considerable of the conspiracy, their apparent inconsequence and irrelevance, if considered apart by themselves, and how all the facts, considered together, assume a culminating cogency of force, compelling the belief in their common inspiration and object. That they were evidence tending to prove conspiracy was admissible, and also evidence tending to prove what was done in furtherance of it.

We will now notice the exceptions to the admissions of evidence. It was shown that the defendant was a supervisor of his

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town, chief of the police, chairman of the hoard, and its treasurer. The people were permitted to prove, the defendant objecting as immaterial and irrelevant, that, in his capacity as supervisor, the defendant was one of the.members of the health board of the town, and its chairman. This board was charged with the construction of sewers in the town. The defendant was asked, upon his cross-examination, the extent to which the health board had constructed sewers in the town, and the debt created thereby. It may have been too trifling to be of significance. The answer was that the debt created for the purpose was between $400,000 and $500,000. The witness Yoorhees was general clerk and commissioner of investment of moneys from sale of the common lands of the town. He was asked, defendant objecting, to what officer he paid over the moneys received by him from the investment. He answered, to the defendant, as supervisor. Asked as to the amount, defendant’s objecting overruled, he answered that he paid him about $200,000. These facts were relative to the question of the defendant’s influence and power. It certainly was material to show what these were. Of course, the charge against defendant implied his possession of them in a very high degree. The facts thus may have been extraneous to the crime charged, but not extraneous to his power and means'to commit it. The jury would have been justified in acquitting the defendant, if, upon the whole evidence, they had had a reasonable doubt of his possession of sufficient power and influence among the inspectors and their assistants to form .and manage such a conspiracy. This became a prime factor in the people’s case, and the evidence under question was relevant, just as, with a watchman, his being an habitual drunkard might be relevant in questioning as to his care in mam aging his watch, or being an expert penman might be relevant to the puestion of his ability to commit a forgery, or, with an alleged poisoner, it might be' relevant, as a "medical student, attending lectures upon medicine, as evidence. People v. Harris, 136 N. Y. 423 ; 49 St. Rep. 751 . The evidence of the division of the town of Gravesend, in 1890, into six election districts, so formed that the town-liall building covered part of each one of

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them, and still so continued, was relevant to the fact that the place was favorable to the formation and execution of the alleged conspiracy. It was objected that, in this respect, the evidence should be limited to the first election district. Aside from the propriety of describing the locality as it actually was, it is clear that the conspiracy charged, in order to attain its complete ends, must embrace all of the election districts of the town. That the defendant Avas the deAdser of this plan of election districts was, in connection with its adoption, relevant to the question of his alleged power in the toAvn, and of his prestige, his alleged control of its vote, and his alleged ambition to continue and increase this prestige. It is not difficult to understand that this device of one town hall reaching into six election districts would give to the defendant’s admirers an enlarged estimate of his powers and skill.

The people were permitted to give testimony, over defendant’s objection, tending to show he had used his official powers to the benefit of several of the Republican watchers at the general election in 1893. One of them was shoAvn to have been awarded by the town board, of which the defendant was the chairman, the contract, still in force, for the electric public lighting, amounting to upward of $50,000, and that all the other Republican watchers, —sundry policemen and others, saloonkeepers having a license, and others,—were engaged in business in which the favor of the police might be desirable. It was part of the people’s case to prove that the Republican watchers were either in the conspiracy to keep the registry lists inaccessible upon election day to Mr. Gaynor’s agents, or that they co-operated to that end. McKane was known to be a Democrat, but a Democrat who, for personal reasons, sometimes caused or permitted the vote of the town to be returned for the Republican candidates. The obligations under Avhich the Republican watchers at this election were to him, and his official power over that, as well as other means of livelihood, where facts relevant to the probability of their co-operation with him in the conspiracy. His faculty for shifting his power from one to another, and the fact that personal likes and dislikes influenced him, were not irrelevant in this respect.

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The people were permitted to put in evidence the poll list copied at the general election for 1893 in the six election districts of the town, and also the registry lists for 1893 of the persons qualified to vote in the same districts, as prepared and certified by the inspectors. Also, the poll lists for the second, third, fourth, and sixth districts for the year 1892. The defendant objected to these several lists as irrelevant and incompetent evidence of the facts. The poll lists of 1893, being official records of the votes actually cast, or recorded as cast, when compared with the registrv lists of the same election, were material upon the question of the fraudulent' character of the registry list, and thus upon the question of the motive for keeping the registry lists inaccessible. Thus, comparison shows that many persons whose names are in alphabetical order upon the registry lists are recorded upon the poll lists as voting in the same order. Thus the names of Ring, Rich, Richardson, Rich, Rickter, Rilly, Rigna, Rumph, stand in the order here given upon the registry list of the first district. The same names are found upon the poll list in the same order, and as voting ballots numbered respectively 79, 80, 81, 82, 83, 84, 85 and 86.

‘ This remarkable coincidence of sequence on both registry and poll lists touches in striking light the question of honesty of construction of the registry and poll lists and the returns. A false registry list is an obvious precedent of a false poll list, and a false return of the election. The example given is an example to strike. Ror is this striking in only the list of the first district, but also some of the other districts. The absence of any sufficiently specified place of residence of the voter is not infrequent. The registry lists and poll lists of the first district, with the acts of the defendants Morton, Morris and Brownhill, inspectors for that district, show them united with defendant McKane, and thus pertain to the question of their guilt. The registry and poll lists of three of the other districts contain similar internal evidence of fabrication, and, because of similar motive, was this similarity the result of concert in crime among the several inspectors of the several districts? The fact was evidence relevant to the question.

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If a concert in design and in crime, then a link existed between the registry list and the poll list of the first election district and those of the other districts. It was a link that bound acts separate and distinct into acts concerted and executed with the common idea of evil purpose. It was for the judge to decide, in the first instance, upon his own inspection, as assisted by all the evidence, whether the link existed. If it did not, then the lists of the districts other than the first were inadmissible. If it existed, they were admissible. To our inspection, as now presented by us, the link is clearly visible, and the links of the other districts were properly admitted. These lists, taken together, tend to prove that the inspectors of the first district were co-conspirators with the inspectors of the other districts, and possibly add something to the meaning of the other evidence tending to connect McIIane with the conspirators. It is true that the conspiracy thus suggested has for its remote purpose a false return of a larger vote than the true one, and that the defendant is only indicted for committing some of the acts leading up to the final result; but the greater includes the less, and, to the extent we can see the greater was accomplished, to that extent we must infer that the intermediate steps necessary to its accomplishment were also accomplished. While it is true, as a general rule, that conviction for one crime should not be obtained by proof of another, yet it is obvious that the rule does not apply where the two crimes are so related that the one envelopes or implies the other, or is involved in its commission.

The registry lists for 1893 contain 6,580 names of electors of the town. Upon the question of motive, it is material to show that that number was too great. The People placed in evidence the official enumeration of inhabitants of the town of Gravesend taken February 12,1892, pursuant to chapter 5, Laws 1892, showing the whole number of inhabitants to have then been 8,343. This casts some light upon the question. It is not necessary that the light should be of absolute clearness and exactness in order to be admissible. What is said hereafter in regard to the admission of the election returns is applicable to the admission of the census

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returns. The authorities are to the effect that the courts take notice of the population of the political divisions. 1 Greenl. Ev. § 456; Farley v. McConnell, 7 Lans. 428 ; 52 N. Y. 630 ; Merz v. City of Brooklyn, 33 St. Rep. 577 ; 11 N. Y. Supp. 778 ; 128 N. Y. 617 ; 38 St. Rep. 1014 ; 12 Am. & Eng. Enc. Law, 175. We think the census returns were properly admitted. The defendant, to meet the charge of forgery in the vote, gave testimony, on his direct examination, as to the increase of the population of the town since 1890, and as to the vote of the town in 1891-92-The People, upon his cross-examination, put in evidence the election returns for 1891 in the six election districts, and afterwards, in rebuttal, put in the election returns for 1890 and 1892. It is apparent, we think, that, when the defendant testified as to the vote in 1891 and 1892, he only testified to his recollection of the statement in their returns of such totals, and hence the returns themselves would be the better evidence. Besides, no objections were made that the returns were not duly made and deposited in the proper custody. We think, it seems, that the returns were made by the proper officials, whose means of knowledge were the best possible, and whose duty it was to make them, and who did so under their oath of office, and were presumed to have done their duty properly. They were made and preserved by authority of law for the benefit of the public. They were admissible. Van Bergen v. Bradley, 36 N. Y. 317 .

As a general rule no better evidence of the results of an election is obtainable than the official returns offered. If the several clerks and inspectors were wanted as witnesses, they could not be expected to do more than to verify the accuracy of the returns. In case of the injunction of quo warranto, the returns are presumed to be true until shown to be false. People v. Minck, 21 N. Y. 539 ; People v. Thacher, 55 id. 535. The «defendant urges that the real efforts of the people in placing in evidence the lists and returns of the first election district for the year 1893 was to show that the defendant had been guilty in former years of falsifying the vote and returns. As they

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were admissible for legitimate purposes, the most the defendant could do was to ask such directions as would limit their eflect to such purposes. Witness Mansfield testified that he went to the town hall, in company with witness Masterson, at request of Mr. Mayer, in interest of Mr. Graynor, October 22d, in order to take copy of the registry lists. These lists ought then to have been accessible in the hall. They found a man, ap-' parently a policeman, in charge. They told him they wanted to obtain a copy of the lists. The man told them they could not have it without an order from McKane. They saw no lists, and of course obtained no copies. They returned to Brooklyn and reported to Mr. Mayer what had occurred. The people then proved by Mr. Mayer that on Monday, the 30th, he met the defendant in Brooklyn, and said to him what Mansfield and Master-son had said, as above stated. The defendant then said, among other things: “I gave the man those orders.” And added: “If you want a copy of the list, why, certainly you can have it.” The statement made by the policeman to Mansfield and Masterson was objected to. The defendant insists that the policeman should have been called as a witness, but, when the defendant said, “I g’ave the man his orders,” it is plain he adopted as his own the acts and utterances of the policeman. The people had to show actual obstruction, that is, the facts constituting it; the acts of the policeman and his word constituted the obstruction, or part of it. They were inadmissible unless chargeable to the defendant. The defendant, by his own statement, acknowledged that he was chargeable. There was no need of calling the policeman. What he said and did in the act of obstruction was provable by anyone who saw and heard him. McKane made the acknowledgment of his responsibility of the policeman’s acts and words with full knowledge of what they were.

In the same conversation between Mr. Mayer and the defendant, Mayer testified the defendant said: “You can have a copy of this list. I will give you such an order. I will do more. I will see Murphy, and have him telephone down to tell the man to give you a copy of the list. Murphy saw the defendant, was

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then in the defendant’s employ, and was one of the inspectors of the first election district. Mayer testified that on the same afternoon he met Murphy in the defendant’s office in Brooklyn, and asked him: “Did McKane give you an order for me to get copies of the registry list of Gravesend?” Murphy answered: “Mo.” Mayer: “Did he tell you to telephone to the town hall to have, the man in charge there to copy this list?” Murphy: “Mo.” Mayer: “Please call his atteneion to it. He just promised me to do that on the street.” The defendant was absent. Objection to the conversation last quoted was upon that ground. The conversation was admissible. Mayer was now prosecuting his quest for the list through Murphy, the inspector who ought to help him, and whom McKane had promised to render serviceable. It was important for Mayer to find out whether Murphy would kelp him, and the direct way was to ask him. So far as Murphy was concerned, he was constituting his obstruction. Mayer incidentally obtained this information by asking him if McKane had given him orders. If the whole point of this testimony had been to prove that McKane did not give orders, an objection perhaps would be valid; but the whole conversation is pertinent to the question of Murphy’s guilt. It tends to show that he was persevering in the refusal to act without an order from McKane.

Mr. Mayer further testified that still later in the same afternoon, in his own office, Mr. Gaynor and the defendant Murphy being present, and McKane absent, Murphy said: “Mr. Mayer, you are mistaken. McKane did not say he would give you an order.” Mayer: “He certainly did say so.” Gaynor: “What do you mean by saying I cannot have a copy of those registry lists without an order from McKane? Anybody can copy these lists, and I am going to have a copy of them.” Murphy: “We aren’t going to let everybody that comes down there copy these lists. We do not know if everybody is a friend or foe, or a thief. McKane says he will have a copy of the lists made and given to you.” Gavnor: “I do not want such a copy. I am going to have my own copy. I am going to have a copy that can be sworn to in court.” These declarations of defendant Murphy were thus acts of obstrue

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tion. He has thus opposed Mayer and Gaynor in their efforts to get the lists, and tried to make it more difficult for them. They were as evasive acts in his part of the crime, intended to delay and baffle Mayer and Gaynor, and not as confession or recital of past criminality. At least the jury might so regard them, and might also infer that he was still submissive to the influence of McKane. McKane’s declaration to Mayer as to the orders he would give to Murphy, and Murphy’s declarations to Mayer and Gaynor, showed his persistence in his obstruction, and the absence of such order respectively afforded one item against McKane and another against Murphy, showing how each one stood as to a common purpose, and as to his own part in it.

Three orders were granted by Justice Oullen on ¡November 1 —one directed to the inspectors of the first election district, and the others to the inspectors of the fourth and fifth—to show cause, in the supreme court the following day, why a peremptory mandamus which required them to allow Mr. Gaynor and his agents to inspect and copy the registry list in each district was not regarded. The witness Shananan testified that he served the papers for the fourth district upon G. Morris and Tuttle, two of the inspectors for that district; that in making the service upon Morris, he told him what the papers were, and that he had just served Mr. Tuttle, and that “he told me that he was going to hand the papers to Mr. McKane.” This remark of the witness was made in response to the question, “What did you say to him? meaning when he served the papers upon him. Objected to as immaterial and incompetent. Court: “I think what he said may be taken to note what the inspector said to him.” This remark was made by the court plainly upon the correct theory that it was proper to receive evidence that the inspectors were at the time, and by the service of the papers, fully advised of the desire of Mr. Gaynor to obtain access to the registry lists. The witness, in answering the question, introduced, among other matters strictly within the warrant of the court, this statement of what inspector Tuttle had said. That statement, though materially within the warrant of the court, was not within the spirit of the

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warrant. It was for the counsel of the defendant to move to strike it out, if he was not contented with it. This he did not do. To urge as an error now this casual, incompetent statement of the witness, unexpectedly made, but which at the time was not deemed important enough to suggest the motion to strike it out, ought not to be tolerated unless justice plainly requires it. It appears from the evidence that McKane had assisted in resisting these applications for a mandamus, and it does not seem to be material whether he did so upon the papers served upon Mr. Tuttle or some other inspector. His assistance in defending the inspectors with their consent is shown. Mr. Tuttle’s remark that he would take one step in the transaction becomes unimportant in the presence of the evidence that the other steps he did take embrace this one and many more.

The admissibility of Mr. Grout’s testimony as to the conversation over the telephone with a person whom he supposed to be McKane depended upon the preliminary fact that such a person was shown to be McKane. Upon the evidence, there can be no reasonable doubt of it. The suggestion of an imperfect transmission of the telephone of the McKane part of the evidence seems to be founded upon Mr. Grout’s inability to remember the words of a single sentence of it; an obvious non sequitur.

Mr. Mayer, in the interest of Mr. Gaynor, went to the Graves-end town hall, October 31st, with twelve copyists, with the view of obtaining copies of the registry list. He described the manner in which his friends were obstructed and baffled. . He was corroborated by other witnesses. It is enough to say, without going into details, that the obstructive tactice seem to have been systematic and successful. The defendant was absent, bnt evidence certainly was admissible as tending to imply the existence of a conspiracy, and to show the acts and declarations of the conspirators and their agents in furtherance of it.

Mr. Mayer on the same day visited Mr. Johnson, one of the inspectors of the sixth district, at his house in Gravesend, and formally demanded of him the copy of the list which oubht to have been in his possession. It was not produced. Why not? Was

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it because he also was in the conspiracy? Mr. Mayer also went to the house of Mr. Cropsey, another inspector of the same district. He did not see Mr. Cropsey, but he inquired of a woman in charge of the house, stating his business, and asking permission to see list. The woman answered she knew Mr. Cropsey to be an inspector; further answered he was absent, and she knew nothing •about the matter. Mr. Mayer testified to an interview substantially similar at the house of Mr. Crandall, another inspector for the sixth district. Mr. Grout on October 30th could not find the inspector, and had similar interviews with the persons in charge of the house. Other witnesses testified to like visits, like interviews, and like results at'the houses of the other inspectors. The learned presiding judge said, in admitting this testimony: “There is sufficient evidence in it to base an inference that what was done, in regard to these inspectors, was part of a scheme which comprehended all; that the covert motive actuating the defendant with regard to them can be shown.”

We think the evidence was admissible. Obstacles to the pursuit of the registry lists could not be well instituted without the evidence of the details by them of the pursuit and of the obstacles. Standing alone, and apart from the defendant, any one of ■ the several pursuits might seem to be admissible, but the question for the jury was, did they severally stand alone and apart from the defendant, or did they stand each in its place as part of the obstruction and defense at that place against Mr. Gaynor’s search for the registry lists, and did they thus in fact stand together? Did McKane stand apart from the plan of obstruction, or was he its leader? This view applies to the details of the series of attacks by Mr. Gaynor and the resistance, evasive, defensive and repulsive apparently planned, operated, and maintained for his defeat. McKane"was not always in view, but the evidence shows that he was at the front at the opening of the controversy, at several of its intermediate stages, and politically so, under cover of his office as chief of police, when it assumed the gross features of brutal intimidation and outrage. The official powers of the magistrate, Hewton, were put in recognition to effect the imprison

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ment of some of Mr. Gaynor’s assistants. How far Ms official powers were lent to the support of the scheme of obstruction was the proper subject of inquiry, in view of the evidence tending to connect him with the conspiracy.

Michael Ryan was an inspector in the second district. He was also principal of the public school on Coney Island, a part of the town of Gravesend. When the quest for the copies of registry lists in the hands of the individual inspectors was being made, during the week preceding the election, search was unsuccessfully made for him. There were six teachers under him in the public school. One of them, Clara P. Daly, testified that he was absent from the school on Thursday, Friday and "Monday preceding election day, Saturday being a holiday; that such continued absence was unusual. She was also permitted to testify to the number of pupils in the school. The counsel for the defendant assumed that this was done for the purpose of showing the disproportion between scholars and voters. But its purpose seems to have been to show that the school was large enough to need the principal’s customary attendance on the days in question, and thus his absence might be referable to his co-operation in the scheme of suppressing the registry lists. The circumstance may have been slight, but we cannot say it should not have been considered, in connection with the other testimony.

Several witnesses were called by the defendant to testify to his good reputation. On cross-examination the people were permitted to ask them as to his reputation in connection with certain specified directions involving a questionable use of his power, and this was permissible. The defendant having introduced evidence of general estimation that his reputation whs good, the people certainly were at liberty to show, upon cross-examination, what it was in respect to important particulars; certainly so within a reasonable range of the subject introduced by the defendant. It may be that some of the particulars thus introduced strengthened the case of the people in respect to the peculiar power and influence of the defendant among his townsmen, and, in the absence of objections to the right of cross-examination, we cannot find error requir

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ing reversal from the fact that the testimony may have touched, not only the defendant’s character, but also the probability of the charge against him. To hold this to be error would be to invite a defendant whose case is desperate to spread a net in which to .ensnare the people.

Defendant presses some objection to the charge to the jury. It is doubtful whether there are any exceptions. Written requests to charge, when presented by counsel, were passed upon by the court before malting the main charge. Two exceptions were then'taken. At the close of the main charge, one of the defendant’s counsel said: “I desire to withdraw the exceptions I took.” Whether he did this because he was impressed with the fairness and correctness of the charge, or because he preferred to give the jury the idea that he regarded it as favorable to the defendant, certain it is that he thus waived his right to try and procure, by exception, any modification of it. If he, after examination, detects any errors, that will not justify a reversal, unless it is clear that they in effect prejudice the defendant, notwithstanding the reflections of counsel in attempting to nullify their influence. Objection is especially made to the following portion of the charge in respect to testimony of Mr. Mayer, already referred to, contracted by the telephone, to the effect that, in his interview with the defendant, the latter said, in effect, that he did give to the person in charge of the town hall orders not to allow any person to have a copy of the registry list without an order from himself. How, if the defendant did really acknowledge giving a direction of this kind, that admission, in connection with other circumstances, would tend to sustain the inference that at that time-he already possessed control over the registry lists, if not actual custody of them. It may be . said to be ample evidence that did thus tend to sustain affirmative or negative admission.

Each admission implies so much. It was not an error of the judge to say so of the testimony in question. He did not say how nearly it tended. If he had undertaken to say that, it would have been dangerously near encroaching on the province of the jury. Elsewhere the court brought out the distinction that, while it

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might he light to the evidence tending to establish some facts in the case, it was for the jury to determine whether they believed it, and, if so, whether it did establish it. We may safely assume, we think, that at the time this distinction was clearly understood.

Instructions given by the court as due to the defendant in regard to the posting and accessibility of the registry list and copies seemed to be favorable to the inspectors in the extreme limit of permissible liberality. The criticism of other portions of the charge does not seem to us to require special mention. Finally, the defendant contends that the verdict is against the evidence.

The foregoing opinion is mainly confined to such exceptions, taken upon the trial, which the defendant impresses upon our attention, as seemed to us worthy of written mention. The examination served to develop, to some extent, the nature of the cáse. We do not think it necessary to undertake the additional labor to quote and arrange in order the testimony given, to a clear presentation of the whole case. It will suffice to say that we have examined, and the examination satisfies us that the verdict, as offered, is justified by, the evidence.

Justice of the conviction confirmed.

All concur.

Cases cited

People v. Harris 49 St. Rep. 751 N.Y. 1893-01-17 p. 365
Farley v. McConnell 7 Lans. 428 N.Y. Gen. Term p. 369
Farley v. McConnell 52 N. Y. 630 N.Y. 1873-02-11 p. 369
People ex rel. Stone v. Minck 21 N. Y. 539 N.Y. p. 369