People ex rel. Willett v. Quinn

On November 21, 1911, Mr. Justice Scudder, sitting as a committing magistrate, issued his warrant for the arrest of William Willett, Jr., upon a criminal charge of fraudulently and wrongfully committing certain acts therein specified, tending to affect the result of the judiciary convention held in and for the Second Judicial Department on the 6th day of October, 1911. On the same day warrants were also issued for the arrest of Joseph Cassidy and Louis T, Walter, Jr., upon similar charges. Prior thereto, and on various dates, between November 2, 1911, and the date of issuing said warrants, various persons had appeared before Mr. Justice Scudder, either voluntarily or in response to the requirements of a subpoena signed by him, and had been examined, their testimony had been reduced to writing and signed, the depositions had then been sworn to before him and filed with him. On November 27, 1911, the relators voluntarily appeared before said magistrate, waived the reading of the depositions taken before him prior to the issuing of the warrants, and demanded an examination. On December 5, 1911, the date fixed by consent for such examination, they again appeared in person or by counsel, and thereupon stipulated that the depositions of the several persons which had been taken prior to the issuing of said warrants, stand as their testimony, with the same force and effect as if such witnesses had been sworn, and had thus testified upon such examination. Counsel for the accused then cross-examined three of the persons who had been previously examined .and had made depositions, and stated that he did not desire that either of the other persons whose depositions had been taken should be produced for examination. Thereupon each of the accused made a statement to the magistrate, as permitted by section 196 of the Code of Criminal Procedure. The proceedings were thereupon adjourned by consent to December 11, 1911, upon which date the magistrate decided that a crime had been committed, and that there was sufficient caus.e to believe that the accused were guilty thereof, and thereupon issued to the sheriff of Queens county a commitment directing him to receive and retain in his custody the said William Willett, Jr., to answer to the grand jury of Queens county upon a charge of “fraudulently and wrongfully offering, tendering, and paying a cash consideration to one Louis. T. Walter, Jr., for the purpose of affecting the Democratic Judicial Convention of the Second Department, held on October 6, 1911, paying money to Louis T. Walter, Jr., delegate to said convention, for the purpose of inducing said Walter to vote at said convention for the said Willett, and conspiring together with Louis T. Walter, Jr.,, and Joseph Cassidy to promote the nomination and election of him,

The validity of the commitments is challenged upon three grounds:

(1) That the magistrate was without jurisdiction to issue the same •(a) because the deposition presented to him on or about November 2d, whether properly termed an information or by whatever name described, designated no crime and charged no person with the commission thereof, and therefore the subpoenas issued by him were void; (b) because at that time a grand) jury was in session in the county of Queens, and the district attorney of the county might have presented to such grand jury the same evidence which was submitted to Mr. Justice Scudder as a magistrate.

(2) That the examination of the witnesses whose testimony was reduced to the form of depositions and sworn to, and which constitute the basis of the several commitments, was taken in public, and not in private.

“When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant and prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.” Code Crim. Proc. § 148. “A magistrate, before whom an information is laid, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant.” Code Crim. Proc. § 608.

[1] In such information facts enough must be stated to show that the informant is acting in good faith, and that he has reasonable grounds to believe that a crime has been committed by some person named or described. People ex rel. Livingston v. Wyatt, 186 N. Y. 383 , 79 N. E. 330 , 10 L. R. A. (N. S.) 159 , 9 Ann. Cas. 972. If such is not the case, then the subpoenas issued are void, and the witnesses summoned are under no obligations to obey the same.

[2] If under such circumstances an attempt should be made to punish them for disobedience, an adequate remedy may be obtained by them through the writ of habeas corpus. People ex rel. Livingston v. Wyatt, supra. Whether at the instance of the persons affected thereby a writ of prohibition would issue to prevent the issue of such subpoenas and the examination of witnesses thereunder we need not determine. See People ex rel. Fleming v. Mayer, 41 Misc. Rep. 289 , 84 N. Y. Supp. 71 . No application was made for such relief. 'The objection now under consideration has ceased to be of any importance for reasons hereinafter stated. So, if at the time when the warrant of arrest was issued the evidence contained in the depositions was insufficient, relators were not obliged to wait for an examination, but could immediately apply for a writ of habeas corpus for their protection. People ex rel. Perkins v. Moss, 187 N. Y. 410 , 80 N. E. 383 , 11 L. R. A. (N. S.) 528 , 10 Ann. Cas. 309. No application was made for such relief. On the contrary, relators appeared, participated in cross-examining the people’s witnesses, and made a statement. If, when the examination was finally completed, and after hearing the statement of the defendants, it then appeared that the crime mentioned in the depositions or any other crime or crimes had been committed, and that there was sufficient cause to believe the defendants guilty thereof, the magistrate had jurisdiction to hold them to answer for the action of the grand jury. Code of Crim. Proc. § 208.

[3] The commitments cannot thereafter be successfully attacked because at some prior stage of the proceeding the magistrate may have exceeded his jurisdiction or the proofs were insufficient.

[4] So, too, the fact that a grand jury was in session at the time that the proceedings were had did not oust the magistrate- from jurisdiction to consider the information, examine witnesses, take their depositions, proceed with the examination, listen to the statements of the accused, and issue his commitment. In the larger counties of

Npr is there anything in the suggestion that the district attorney may again present the evidence to a future grand jury, and if an indictment is found, followed by conviction, the sufficiency of the evidence to show a crime may be reviewed on appeal from the judgment. It is not the district attorney, but the relators, who are “seeking a preliminary review by appeal of the question whether a crime has been committed.”

[5] Nor are the commitments void because the examination of the witnesses for the people was conducted in public rather than in private. It is true that the statute provides that:

“The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the Attorney General, the. district attorney of the county, the defendant and his counsel and the complainant and his counsel.” Code Grim. Proc. § 205.

Literally construed, this prohibition relates to the depositions, when complete, and the statement made by the accused, and not to the examinations which resulted in such depositions, or the information itself. People ex rel. Fleming v. Mayer, supra. Whether the examination shall be conducted secretly or in public would seem to be -within the discretion of the magistrate, except that certain persons may not be excluded therefrom. Code Crim. Proc. §§ 202, 203. Counsel for the relators, with great earnestness and eloquence, has sought to impress upon the court the indirect injury that might result by reason of an unfounded charge made against a candidate for a public office, in the heat of a political campaign, and the public examination of witnesses in an attempt to support the same; and he has asserted that these proceedings were not taken in good faith, and that the informant was actuated by ulterior motives, and, when he laid the information before the magistrate, had no reasonable ground to' believe that a crime had been committed. If the accused were seeking by a writ of prohibition to restrain the magistrate from proceeding without jurisdiction, or in excess of his ■ jurisdiction, in conducting public examinations of witnesses after an insufficient information;-motive and good faith might be questions of importance.

[6] But upon a habeas corpus to .-review a commitment issued after an' examination completed and depositions filed, and a voluntary statement by the accused, the fact that the informant may have been actuated, by motives of malice, hatred,. or revenge, rather than those

[7] The acts and conduct of the relators Willett and Walter are so connected and interwoven that these may be considered together. The relator Cassidy occupies a different position. A careful examination of all the evidence taken before the magistrate fails to disclose any connection upon his part with any criminal acts or conduct. Giving to such evidence the fullest possible effect, nothing further appears than that, occupying the position of a powerful political leader in the county of Queens, after one or more consultations with the relator Walter, he concluded to exercise his influence over the delegates to the Democratic Judiciary Convention favorably to the nomination of the relator Willett. Whether he was led so to do from motives of friendship to either Walter or Willett, or out of gratitude for supposed support from one or both of them at the preceding

It is impossible within the limits of an opinion to review exhaustively all of the evidence in these cases, contained in nearly 800 printed pages. These salient facts appear: On September 26, 1911, primaries were held in Queens county for the election of delegates to the Democratic Judiciary Convention to be held on October 6th. Three persons were to be nominated at such convention. Prior thereto it was agreed by the political leaders of the various counties in the judicial district that two of such nominations should be accorded to Kings county, and the remaining one to Queens county. The combined votes of the delegates from Kings and Queens counties constituted a majority of all of the delegates to such convention. Louis T. Walter, Jr., a prominent and influential politician, was one óf the delegates elected from Queens county, and at the convention he presented the name of William Willett as a candidate for the office of Supreme Court Justice, and he was nominated. Although the names of several prominent members of the bar in Queens county had been mentioned in connection with the nomination for that office for several weeks prior to the date of the convention, it affirmatively appears that Willett’s name had never been discussed by many of those who would presumably be of influence in connection with such nomination until just before the convention, when Walter became his active advocate .with Cassidy and others, who were supposed to exercise great influence over the members thereof. On the 22d of September, four days before the primaries were held, Willett borrowed $5,000 on his note, indorsed by Frank R. Merrill, payable one month from date. This note was discounted at the Fifth National Bank in New York, which was the bank where Merrill kept his account. The proceeds of this discount were given to Willett in bills of large denomination, either $500 or $1,000 in amount. On September 30th, four days after the primaries and six days before the convention, Willett presented for discount to the Far Rockaway National Bank, where he kept an account, two notes made by Marinus Willett, his brother, to his order and indorsed by him. One of the notes was for $2,500 and the other for $7,500. These notes were discounted, andl the proceeds carried to William Willett’s account. He asked to have the proceeds given to him in cash. The president of the bank testified that he found upon examination that he did not have that amount of cash at the banking house, but that

In this same connection it is important to notice that on October 16th, when the loan made on October 6th became due, Willett stated to the president of the Far Rockaway Bank that he desired an extension of that loan for the reason “that he could not pay the loan at the time because he did not want to sell anything or put it on record at the present time, because that would be confirmation of the story” that the newspapers were “going to publish about his buying the nomination.” Just how he knew that such publication was to be made does not appear, for up to that time it had not been made, but it is the fact that two days later, and on October 18th, an article did ap

But still further evidence tending to show the character and purpose of Willett’s transactions is found in the contradictory statements which he made at the time that he obtained these loans and subsequently thereto. When he obtained the first loan of $5,000 from the Eiftli National Bank, through the accommodation of Merrill, he told him that “he wanted to make a contribution to the primaries” in the hope that he might be named as a candidate for Justice of the Supreme Court. Whether he actually made that contribution does not appear, but it does appear that when that note came due on October 23d, although it was nominally paid by the check of Marinus Willett, his brother/ on the same day he borrowed from Merrill collateral

If the evidence is sufficient to establish Willett’s guilty purpose within this rule, is there any evidence which under the same rule indicates that such purpose was carried into effect, and that he paid directly or indirectly any money or • valuable thing to any person with a view to influence that person’s vote in his behalf at the judiciary convention? On the morning of the day when the convention was held, when Willett obtained $10,000 in cash from the Long Island Bank, Walter accompanied him to the bank in an automobile, waited while he went in and got the money, and they rode away together. He had previously accompanied him to the Seaboard Bank when the sum of $10,000 was Obtained, also in bills. Walter was then driven to the railroad station, shortly thereafter met Cassidy on the train, and half an hour before the convention met announced that Willett would be the candidate. Any inference that might be drawn from these circumstances of a corrupt payment of money is strengthened by the further fact that on October 2d, after the primary election at which Walter was elected a delegate, and four days before the convention met, Willett did pay to him upon the porch of his house out of the proceeds of the loan obtained by him from the bank at Far Rockaway the sum of $5,000 in bills, which payment was kept secret at the time, and a considerable portion of which money Walter retained in cash until after the convention had acted, and also by statements made by the latter at various times as to his purpose in so doing. On one occasion Walter stated that he was keeping it to play the races at Baltimore, and at another that he wanted to pay small amounts on various debts which he owed. Both Walter and Willett in various statements, made at different times to several people, attempted to explain the consideration for that payment. Statements made under such circumstances may be of such a character that the impression of guilt derived from the facts unexplained may be removed, or the statements may be so highly improbable and incredible as to result in ripening the impression into a conviction. Briefly, these statements were to the effect that this money was paid in consideration of the transfer by Walter to Willett of 63 shares of stock in a company known as the Automobile Building Company,

Of course, it is possible that the stock of each of these companies may have some prospective value, or may even be worth the sum which Willett asserts that he paid for the same. The question before the magistrate was this: Is there reasonable ground) to believe that this alleged sale of stock in these two companies was an honest, bona fide transaction, or a mere cloak to cover the payment by Willett to Walter, corruptly made, with a view of securing Walter’s influence and services in connection with Willett’s nomination? Wte think that the latter conclusion was justified.

It may be possible that upon a trial before a petit jury many of these facts may be controverted, or, if not, that a jury may accept the story in its entirety as consistent with innocence, but the duty of the magistrate was clear to hold these defendants on such evidence for the action of the grand jury.

. The order in the case of the People ex rel. Cassidy v. Quinn should be reversed, the writ sustained, and the relator discharged without costs. The orders in each of the other cases, dismissing the writs and remanding the relators, should be affirmed without costs.

JENICS, P. J., and RICH, J., concur. WOODWARD, J., concurs in separate opinion, with whom HIRSCHBERG, J., concurs.

I concur in the result reached by the opinion of Mr. Justice BURR, but I do not wish even by silence to appear to assent to the view that the depositions of witnesses in a preliminary examination before a warrant is issued may be taken in public any more than they can be displayed to the public after they have -been reduced to writing and signed.

Section 205 of the Code of Criminal Procedure provides that:

“The magistrate^ or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the Attorney General, the district attorney of the county, the defendant and his counsel and the complainant and his counsel.”

It seems to me that this provision could have had no possible purpose other than to secure secrecy for the preliminary proceedings on an information. When it is considered that at such stage of the proceedings no one has been charged with the commission of a crime and that it may be that as a result of the inquiry no one will be so charged, the importance of secrecy is just as manifest as in the case of proceedings before a grand) jury. The relators in this case were subjected to the humiliation of a public exploitation of their private affairs just upon the eve of an election, in which the ambitions, perhaps, of a lifetime' for one of them were involved, be

That there was no evidence on which to hold Cassidy is manifest. I think, however, that a prima facie case was made against Willett .and Walter, and that the evidence against them should be submitted to a grand jury, andl, as said in Commonwealth v. Ridgway, 2 Ashm. (Pa.) 259, "that respectable body are entirely independent of us; they can form their own views of the prosecutor’s case, and may, if their judgment so indicates, place the defendant on his trial,” or they may refuse to indict. That is all for the grand jury.

HIRSCHBERG, J., concurs.