People v. Duffy

The indictment, in four counts with slight variations, charged defendant, who was a sergeant of police, with having received a bribe of $30 on the 3d day of September, 1912, amended on the trial to read 10th, to permit one Julius Roth to run a gambling house at 79 West 118th street, borough of Manhattan, N. Y., for one month from that date. The jury rendered a general verdict of guilty. Counsel for appellant urge 18 points for reversal; but most of them are fully and clearly met by the evidence and by authoritative precedents, and we deem further discussion unnecessary.

[ 1 ] The only points which any member of the court deems debatable are with respect to evidence received and rulings made on questions relating to accomplices, and their corroboration, and evidence tending to show that the defendant was guilty of other crimes. The steps resulting in the commission of crimes by the mutual consent and voluntary acts of the parties thereto are so concealed that it is impossible to predicate a conviction on what actually transpires when the crime is consummated, even if that were capable of direct proof, without or in addition to the testimony of accomplices. It is therefore necessarily competent to show the origin of the plan or scheme for the commission of the crime, and every movement toward its consummation, for it is the history leading up to the final act that affords the convincing proof.with respect to the purpose for which the bribe was exacted and the criminal intent which is an essential element of the crime.

The theory of the people is: That in the month of March, 1908, one Fox, a patrolman assigned to duty in plain clothes in the Sixth inspection district and Forty-Third precinct .under Captain Walsh, demanded of said Roth, who was then conducting a gambling house at the place specified in the indictment, which was in said inspection district and precinct, under the name of the Academic Club, $30 per month for protection from interference by the police, and that from that time on until the 1st day of July, 1912, Fox collected that amount from Roth regularly between the 8th and 12th days of each month according to Roth’s testimony, and the 7th and 11th according to Fox’s testimony. That on June 22, 1910, Fox was assigned to patrol duty in the Fortieth precinct, and, although Roth’s place remained in the Forty-Third precinct, Fox continued to collect of Roth as before, and Roth received such protection. That on said 1st day of July, 1912, a new precinct, known as No. 37, was created, embracing part of old precinct No. 43, including Roth’s place, but Fox remained attached to-the Fortieth precinct. That the defendant was then a sergeant of police and assigned to duty in the Thirty-Sixth precinct. That said three precincts remained in the Sixth inspection district, and that Fox and the defendant were both, through their respective captains, under the direction of the inspector of that inspection district. That when Fox collected from Roth in June, 1912, it was remarked between them

“79 West 118th street, Julius Roth, $30, about the 9th or the 11th of the month; 62 West 125th street, the man’s name from whom I collected was unknown to me, $50 a month, the 1st of the month; 20 West 125th street, $50 a month, Mr. Quackenbush, about the 15th of the month; 308 Lenox avenue, Mr, Lennon, $50, about the 7th of the month; 48 and 50 West 135th street, Bully Hawes, $150 a month, the 15th of the month; 135th street and Fifth avenue, Le Roy, $50 a month, the 1st of the month.”

That thereafter defendant called on Roth, saying “I am Duffy; I have come to take the place of Fox,” or “I have come to succeed Fox,” whereupon Roth then put $30 in an envelope and handed it to defendant. According to the testimony of Fox, his last collection of Roth was made in June, 1912; but Roth’s testimony tends to show that Fox also collected in July and August, and that defendant’s first collection was on September 10, 1912, the date charged in the indictment as amended, and that the defendant called regularly monthly thereafter and received the same amount in like manner until December. It is not very material whether the collection which the defendant made from Roth on the evening of September 10, 1912, was the first, second, or third collection so made by him. The important point is that he collected money of Roth that night under circumstances plainly indicating an agreement and understanding that Roth’s gambling house was not to be interfered with by the police, as concededly it was not, for a month thereafter.

The principal evidence in behalf of the people was given by Fox and Roth, both of whom the people conceded and the trial court ruled were accomplices. Fox further testified that on the 18th or 19th of July, 1912, he accidentally met the defendant at 125th street and Eighth avenue and asked if defendant had collected from all on the list he had given to him on July 3d, and defendant admitted that he had, with the exception of Quackenbush, from whom he said he had received only $25; and that on that occasion Lennon, the proprietor of one of the six places he had enumerated to defendant, was with the latter, but walked away before Fox joined him. Lennon corroborated Fox as to this meeting, but did not hear the conversation. The defendant admitted that he knew Roth, and knew that he was conducting a gambling house, but he denied that he ever called there or col

[2] At the time the crime is charged in the indictment, the defendant had no duty to perform in the precinct in which Roth’s place was located, and was assigned to patrol duty in another precinct. Concededly he was off duty at the time when it is charged he called at Roth’s place and made the collection. That he did call at Roth’s place in citizen’s clothes in the evening between the 1st and 10th of August, and again about a month later and between the 1st and 10th of September, and on each occasion asked for Roth, and waited at the basement gate for him to be summoned, was shown by the testimony of a disinterested witness named Harris, who was in Roth’s employ as a waiter, and who answered the basement door bell, and knew mid identified defendant, and at his request notified Roth that defendant wanted to see him, and in response thereto saw Roth start in the direction of the basement street door. This, in view of defendant’s denial that he called there at all, is most convincing evidence corroborative of Roth’s testimony that defendant called there and collected the $30 as stated. Fox, on or shortly before -February 6, 1912, had been charged with, and had pleaded guilty to, bribery, and on the day last mentioned the defendant was transferred to a precinct in Brooklyn. According to the testimony of one Shea, who was a personal friend of the defendant, the latter that night asked him to deliver a message to Roth, to the effect that if anybody should ask Roth whether he knew defendant “to stand pat and say that he didn’t know him,” and Shea personally delivered the message to Roth the next evening. The defendant also denied the conversation to which Shea testified. Lennon and Quackenbush, whose names were given by Fox to defendant as the proprietors of gambling houses from whom .collections were being made, and Quackenbush, whose name was unknown to Fox, but who was the proprietor of the place at 62 West 125th street given to defendant by Fox, were permitted to testify, over objections and exceptions duly interposed and taken that it tended to show the commission of other crime, that after July 1, 1912, defendant called on them, representing that Fox was not coming around any more and that he was coming around in place of Fox. Lennon said that he paid the defendant the same amount in like manner, and at the same period of each month. Wilkins said he paid $10 per month more, because it was demanded by defendant, who, after having asked and been informed that the amount paid to Fox was $50, said, “It will cost you $60.” Quackenbush said he put defendant off at first on the plea that “business was bad,” but that defendant called later and received $15 or $25 the first time, and $25 one or two times later. All of them were likewise permitted to testify that there was no police interference.

[3-7] The learned counsel for the appellant contend that the corroboration of Fox and Roth was not sufficient. The prosecution could not be sustained by merely showing the payment of the money to the defendant. It was necessary to show some agreement or understanding by which the defendant was to refrain from performing his duty as a police officer. It is extremely doubtful whether that could be in

[8-10] Lennon, Quackenbush, and Wilkins were not accomplices to the bribery charge in question. There is no evidence of a joint agreement between them and Roth and the defendant. They had no part in the commission of this crime. Manifestly if they had been passing along the street in front of Roth’s place, or had been in Roth’s place, they would have been competent witnesses to show that the defendant called there and had an interview with Roth, and to the conversation if they overheard it, notwithstanding the fact that they were paying for like protection. Likewise it would have been entirely competent for them to testify to any admission made by the defendant with respect to his intention to collect from Roth, or his having done so, even though in the same connection he demanded money of them. The evidence was not received to show the commission of other crimes by the defendant, but to show the intent with which he called upon and received the money from Roth and to identify him as the man who probably called on Roth, which was controverted, in carrying out the scheme or plan which he announced and undertook when he succeeded Fox as collector of tribute for police protection in that territory. If he had told Fox that he would call on the proprietors of the six gambling houses at a time definitely specified, dressed in a particular manner, or making a particular announcement as signalizing the purpose of his visit, and it were shown by the other five that he called on them in pursuance of this plan and in conformity therewith, and Roth testified to the same thing with respect to the call on him, I am of opinion that the testimony of the other five would be strongly corroborative of the testimony of Roth, for it would be highly probable that, if he carried out his preconceived plan with respect to five of the gambling houses, he would do so with respect to the other. This evidence did not involve the drawing of one inference from another, which was condemned in People v. Razezicz, 206 N. Y. 249 , 99 N. E. 557 . It involved legitimate inference from facts proved.

[11-13] Moreover, I am of opinion that Fox was not an accomplice with the defendant in the commission of the crime charged in the indictment (People v. Zucker, supra; People v. Bright, 203 N. Y. 73 , 96 N. E. 362 , Ann. Cas. 1913A, 771; People v. Yannicola, 133 App. Div. 885 , 117 N. Y. Supp. 381 ); and, if not, his testimony needed no corroboration. In the particular circumstances of this case, I think that the fact that the court ruled otherwise is not important, for the verdict plainly shows that the jury believed the testimony of Fox.