People v. Doody

The statutory definition of “perjury,” so far as it relates to this case, is:

“A person who swears * * * that he will truly testify * * * on any occasion in which an oath is required by law or is necessary for the prosecution or defense of a private right or for the ends of public justice or may lawfully be administered, and who in such action * * * willfully and knowingly testifies * * * falsely in any material matter or states in his testimony * * * any material matter to be true which he knows to be false, is guilty of perjury.”

On the Fielding trial, when it is claimed that Doody committed perjury, it was not only material, but necessary, for the people to show that Doody had furnished Fielding, who was then deputy commissioner of city works, the names of men who would bid on public work as his representatives, but also that out of the moneys collected by Doody on the contract for repaving over the water main on New Utrecht avenue he paid to Fielding io per cent, of the amount of such contract. So far as appears, Doody was the only person other than Fielding, the defendant then on trial, who had direct personal knowledge as to whether such names had or had not been given by Doody to Fielding, and as to whether the corrupt payment had or had not been made as charged in the indictment. If Doody then had a personal recollection in regard to the matters about which he was interrogated, a truthful statement of such recollection was material in determining whether Fielding was guilty or not guilty of the charge against him. If Doody then well knew and remembered that he did not furnish to Fielding the names of persons who would bid upon work as his representatives, and that he did not pay io per cent, of the amount of said contract to Fielding, it was necessary for the ends of public justice that he should so testify, to the end that the defendant so unjustly charged with crime might be relieved therefrom, and from the danger of conviction on a false charge. If Doody then well knew and remembered that he did furnish Fielding the names of persons who would bid upon work as his representatives, and that he did pay io per cent, of the amount of said contract to Fielding, it was neces

“I£ a witness swears that he thinks a certain fact took place, it may be difficult indeed to show that he committed willful perjury, but it is certainly possible, and the averment is as properly a subject of perjury as any other.”

Another member of the court said:

“The objection to the assignment of perjury in the first and second counts seems to me to amount to no more than this,—that, because it is difficult of proof, therefore it is bad. But there would be an easy mode by which witnesses might in many cases escape the consequences of perjury, if using the words T think’ made them not indictable.”

In People v. Robertson, 3 Wheeler, Cr. Cas. 183, it is said:

“In the present case the defendant swears also that he has cause to suspect and does suspect that the wool was stolen by Bishop. The indictment alleges that he had not cause to suspect and did not suspect that the wool was stolen by Bishop. The jury have pronounced the charge in the indictment to be true. Whatever doubts may have once existed, it is now clearly settled that a man may be convicted of perjury in swearing that he believes, a fact to be true which he knows to be false.”

An expert may be guilty of perjury in swearing to a false opinion. 2 Bish. Cr. Law, § 878; State v. Henderson, 90 Ind. 408 . A person who testifies that he believes a certain statement to be true, when he has no probable cause for such belief, is guilty of perjury. State v. Knox, 61 N. C. 312 . When a person swears positively to the value of goods of which he knows nothing, although his value is correct, he is guilty of perjury. 3 Greenl. Ev. § 200; People v. McKinney, 3 Parker, Cr. R. 510 . “Where a man swears that a thing is so, or that he believes it to be so, when in truth he does not believe it to be sor the oath is false, although the fact really be as stated.” State v. Cruikshank, 6 Blackf. 62 . An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. Pen. Code, § 101. The facts stated in the indictment of the defendant are sufficient to constitute a crime. Where oral1 evidence is relied upon to convict a person of perjury, it is necessary to produce at least two witnesses, or one witness supported by corroborating and independent circumstances. This rule arises by reason of the fact that, where oath is placed against oath, it remains doubtful

“The defendant was indicted for perjury in falsely taking and swearing '‘the owners’ oath in eases where goods have been actually purchased,’ as prescribed by the fourth section of the supplementary collection law of the 1st of March, 1823. The perjury was charged to have been committed in April, 1837, at the custom house in New York, on the importation of certain woolen goods in the ship Sheridan. The indictment charged the defendant with having intentionally suppressed the true cost of the goods, with intent to defraud the United States. (2) Charging the perjury in swearing to the truth of the invoice produced by him at the time of entry of the goods; the invoice being false, etc. It appeared by the evidence that the goods mentioned in the entry had been bought by the defendant from John Wood, his father, of Saddleworth, England. No witness was produced by the United-States to prove that the value or cost of the goods was greater than that for which they were entered at the custom house in New York. The evidence of this offered by the prosecution was the invoice book of John Wood, and thirty-five original letters from the defendant to John Wood, between 1834 and 1837, showing a combination between John Wood and the defendant to defraud the United States by invoicing and entering goods at less than their actual cost; that this combination comprehended the goods imported in the Sheridan; and that the goods received by that ship had been entered by the defendant, he knowing that they had cost more than the prices at which he had entered them. This evidence was objected to on the part of the defendant as not competent proof to convict the defendant of the crime of perjury, and that, if an inference of guilt could be derived from such proof, it was an inference from circumstances not sufficient as the best legal testimony to warrant a conviction. Held that, in order to a conviction, it was not necessary, on the part of the prosecution, to produce a living wit-mess, if the jury should believe from the written testimony that the defendant made a false and corrupt oath when he entered the goods.”

1 It follows, therefore, that whether defendant was guilty or innocent of the crime charged in the indictment was a question of fact for the jury to determine. That the evidence presented a question. of fact for determination by the jury seems to have been assumed by the defendant at the trial. The only answer of the defendant to the testimony presented against him was that his mind and memory had become so impaired by disease that he was not legally accountable for his lack of memory in regard to- the transactions with Fielding about which he was interrogated. Neither at the close of the evidence offered by the people, nor at the close of the evidence on the trial, did the defendant move for his discharge. The charge to the jury was fair, and, although the questions involved in the issue were fully stated by the court, no exception thereto was taken by the defendant, and no criticism of the charge has been made on the argument in this court. Our examination of the testimony leads us to the conclusion that the verdict should not be set aside, nor a new trial granted, on the facts.

The defendant asserts that the district attorney, in his opening to the trial jury, was erroneously allowed to call their attention to numerous

A casual statement may be innocently or thoughtlessly made, but

The defendant urges various other grounds of error, none of which, however, we think could possibly have prejudiced his interests on the trial.

The judgment should be affirmed.

PARKER, P. J., and KELLOGG and SMITH, JJ., concur.

(dissenting). One Fielding, who was deputy commissioner of a city department of Brooklyn, was indicted and tried for having knowingly approved a false claim against the city. On the trial the defendant was a witness for the people, and is charged with having then falsely testified that he did not remember having had any conversations with Fielding in reference to matters material to the

“He [defendant] had to give bribes. He had to give ten per cent, to a man named Milne. He had to pay ten per cent, to Knapp, who was the water purveyor. He had to pay five per cent, to Jensen. AH these men could hold up bills unless they got their tribute. He carried out his end of the contract, and they did their end of the work. * * * He had gone before the grand jury, and it had indicted his old friends and confederates, and after that he had gone on the witness stand and been denounced by counsel, and hammered and pounded on so it was burned into his memory so he would not forget it the next day or in a lifetime. What happened? The trials went on, and one man was sent out to the penitentiary. He pleaded guilty.” Again: “When tire time came to get certain work through in the sewer department he had to see a man named Goff, and Goff demanded fifty dollars a week; and he had to pay Goff and he did pay Goff fifty dollars a week, to overlook the work and let things go through.” Again: “In the investigation, when the various warrants turned up, this condition appeared: Thomas Fraser & Co. seemed to be the reposrtary of nearly all the warrants that came directly to Doody. Whether it will become necessary to show you this, I don’t know. But it will be revealed by Doody’s testimony that the warrants were signed Thomas Fraser & Go. * * * The question is, how far is the jury to be deceived, if he has attempted to deceive? Now, gentlemen of the jury, it will show to some extent the character of this man’s mind if you will follow it out. Why did he create Thomas Fraser & Co.? Why not take the warrants himself? AH the warrants given to Finkle, Heyward, and Crzzens all went to him. He will tell you that he got every cent of the $200,000, except the thirty-five per cent, he had to pay out under his agreement. Every dollar of it came to himself. Why run it down into this rat hole,—Thomas Fraser & Co.? Who was Thomas Fraser? In his testimony he attempts to say that Thomas Fraser is a brother of some banker in New York. He is asked: 'Did Thomas Fraser get any part of this? No, sir. Was the senior member of this firm anything to you? Yes,

sir; a partner. Did he get any part of this? He, perhaps, did get two hundred dollars.’ It means that is a cover. Every warrant, when they came down to Eraser & Go., they will be up against a stone wall. Who is Tom Eraser & Co? He can’t be found.” Again: “Contracts made and money expended without any authority in law. What is the cause of it? They sent over to the district attorney’s office for an investigation, and the investigation proceeds to a certain stage, and immediately we are up against a stone wall. Who is Eraser & Co.? Who is Cozzens? Who is Einkle? And who is Heyward? But a little probing soon revealed in all this filth and rubbish' this man Doody. What was to be done? It was soon discovered he was the real criminal. He was the hub, and without him the spokes of the wagon could not remain on. We sent for his son, as his name appeared on some of the vouchers. It will appear by his father’s testimony that the son came before the grand jury, and he refused to answer. I show motive for the responsibility he was assuming, to show that, under that pressure of his son before the grand jury, he came before the grand jury himself. His son came before the grand jury, as Doody will tell you. The son refused to answer any questions, and was brought into court with the grand jury, and told to answer the questions, and sent back. An adjournment was had, and an arrangement was made whereby Doody was to tell his story of his criminality, and all his connection with the frauds, and the connection of everybody else. * * * He had purchased his safety at the expense of his old friends and confederates. He turned informer upon them, and thus saved himself from punishment for these crimes. Again: “That was his position in March, 1898, and on his testimony these indictments were all secured against these people. A short while after that, Milne, who had been his friend, came into court and pleaded guilty. He was the young inspector out on the works, to whom he had paid one hundred dollars. Milne pleaded guilty, and was sent to the penitentiary.”

These remarks, and others which I have not quoted, were highly improper, and well calculated to excite prejudice and harmful bias against the defendant in the minds of the jury. They were unrebulced by the court, and objections to them were overruled. The jury must have supposed that they were approved by the presiding justice especially as wholly incompetent evidence was afterwards admitted, against objection and exception, in proof of these statements. Statements of this character by the public prosecutor in criminal cases have been repeatedly condemned by appellate courts, and new trials granted because of them. People v. Smith, 162 N. Y. 520 , 56 N. E. 1001 ; People v. Mull, 167 N. Y. 247 , 60 N. E. 629 ; People v. Fielding, 158 N. Y. 542 , 53 N. E. 497 , 46 L. R. A. 641 , 70 Am. St. Rep. 495 . See page 547, 158 N. Y., and page 498, 53 N. E., 46 L. R. A. 641, 70 Am. St. Rep. 495 , and cases cited; People v. Milks, 55 App. Div. 372 , 66 N. Y. Supp. 889 .

The only crime charged in the indictment being perjury alleged to have been committed in falsely testifying that he did not remember certain conversations with Fielding, the prosecution was allowed to prove, by reading from the testimony of the defendant before the grand jury, a number of other distinct and separate crimes, having no connection whatever with that under investigation. Among these are the following: That he paid one Phillips money to induce the commissioner of city works to aid him in defrauding the city; that he entered into corrupt agreement with one Willis, commissioner of city works, to defraud the city; that such agreement had been carried out, and the city actually defrauded of large sums; that he entered into a corrupt agreement with -one Knapp, who was water purveyor

Assuming that this evidence was pertinent to some inquiry then pending before the grand jury, it was clearly incompetent on this trial, and necessarily harmful to the defendant, by holding him up to the jury as one habitually guilty of defrauding the city of Brooklyn, and bribing its officials. Assuming, again, that the testimony of defendant before the grand jury as to his conversations with Fielding was competent upon this trial upon the question whether he did or did not remember them upon Fielding’s trial, the evidence should have been limited to that. His statements before that body concerning his connection with other crimes were inadmissible for any proper purpose. This evidence did not tend to prove a motive for committing the alleged perjury, nor the intent of defendant in committing it, nor identity; nor did it tend to¡ prove that the perjury was not accidental, nor that the several distinct offenses thereby proved were part of a scheme of which the perjury was also a part. In order to render proof of other crimes competent, it must fall within one of these requisites. People v. Molineux, 168 N. Y. 264 , 61 N. E. 286 . It was not rendered competent by showing it to have been testified to by defendant himself before the grand jury. It was simply proof of other and independent crimes, and does not differ, in respect to admissibility, from evidence of such crimes derived from other sources. To emphasize this evidence, indictments against these various parties were put in evidence, and proof was allowed, against defendant’s objection and exception, that one of the persons indicted (Milne) had pleaded guilty, and had thereupon been sent to the penitentiary. This, also, was error. The inquiry was whether the testimony of the defendant on the Fielding trial that he did not remember certain conversations with Fielding was false. The indictment against Milne was for conniving at the audit and allowance of a fraudulent claim against the city. What that claim was, does not appear. Neither Milne’s admission of guilt, nor the character of his punishment, were pertinent to the question of defendant’s perjury. Taken in connection

The admission in evidence of the several indictments against Willis and Phillips for conspiracy, against Willis for bribery, against Knapp for conniving at the audit of a fraudulent claim, against Milne for the same offense, against Clark and Eeaycraft severally for accepting money to influence their acts as aldermen, and against Goff and' Jensen for accepting bribes, was improper. An indictment is a mere-accusation. It neither proves nor tends to prove anything, even, against the defendant named in it. Even a witness cannot properly-be asked whether he has been indicted, because an indictment furnishes no proof of guilt, and to permit an affirmative answer might improperly influence the jury against his credibility. Kober v. Miller, 38 Hun, 184 , and cases cited. These indictments bore no relation to-any question involved in this trial. It was made to appear that they were found upon the evidence of the defendant above referred to, and’ which connected him with each of the offenses named in them. It is-obvious that this evidence could have had no other effect than to* improperly influence the minds of the jury against the defendant.

It was error, also, to permit to be read in evidence the remark oh the presiding justice on the first trial of Eielding concerning this defendant, to the effect that he was an unwilling witness. The opiniom of the judge, thus proved, that the defendant was reluctant to tell the truth on that trial, may well have influenced the jury to believe that he testified falsely on the second trial. People v. Hill, 37 App. Div. 327 , 56 N. Y. Supp. 282 ; People v. Brow, 90 Hun, 509 , 35 N. Y. Supp. 1009 ; People v. Corey, 157 N. Y. 332 , 51 N. E. 1024 ..

Other errors are alleged, which it is unnecessary now to consider, inasmuch as those already mentioned require a reversal of the conviction.