People v. Bushnell

The appellant contends that the court erred in denying his motion to direct an acquittal, and his counsel argues that the evidence was insufficient to warrant a conviction. The evidence has been examined in the light of the criticism of the counsel for appellant, and we are of opinion that it was not only sufficient to require the submission of the case to the jury, but that any other verdict than one of guilty would have been a miscarriage of justice. It is claimed that the people relied on the testimony of the individual who willingly submitted to the unnatural acts, and who, therefore, was an accomplice, and that his testimony was not sufficiently corroborated. We are of opinion that it was sufficiently corroborated by the testimony of appellant’s wife, and of the wife of the janitor of the building in which he had an apartment, and by his own admissions to Anthony Comstock. Although the appellant’s failure to testify did not permit any inference of guilt, yet the testimony of the people, being uncontradicted, sufficiently showed and fairly warranted the inference of guilt.

The only question in the case worthy of consideration relates to the conversation between Anthony Comstock and the appellant, received in evidence, and containing an important admission with reference to the crime of which appellant has been convicted, and also embracing admissions of'prior similar practices. The crime of which the appellant has been convicted was committed on the night of the 17th day of March, 1900. Two interviews between the appellant and Mr. Comstock were received in evidence. The first was upon the

It is not entirely clear that it was essential to a proper presentation of the admission concerning this crime that the entire conversation, embracing the admission of other similar crimes, should have been received; but we deem it unnecessary to decide that question, for it was not properly presented by objection and exception. The only objection to the conversation in the first instance was that it did not appear that Mr. Comstock informed the appellant of the purpose of the interview which took place at Mr. Comstock’s office, the appellant having appeared there at his request, or that appellant was apprised of his rights, or informed that any statement made might be used against him; and on the further ground that it was immaterial, irrelevant, and-too remote. The objections were overruled, and appellant’s counsel excepted. It is manifest that these objections were without merit. The witness then proceeded with the conversation, in answer to a question calling upon him to give the conversation which he said he had with the appellant concerning the commission of the crime. Mr. Comstock said that he informed the appellant that a matter had been referred to the New York Society for the Suppression of Vice, of which he was the 'secretary and chief special agent, in reference to appellant’s conduct with young men, and assaults that he had been making upon them. At this point cotmsel for appellant objected, and moved to strike out this testimony as not responsive to the question. The objection was overruled, and exception taken. The witness then proceeded to narrate the conversation as follows: “1 have made a very careful examination to get at the facts, and I have examined one of your victims.” Counsel for appellant then inquired of the court whether this was relevant and material. The court replied that, it being a conversation between appellant and the witness, it was admissible, and counsel for appellant excepted.

These statements were preliminary, and essential to show the full effect of appellant’s admission in part, and of his silence with reference to the remaining part, of the charge concerning the particular crime in question. It clearly appears from Mr. Comstock’s evidence, subsequently given, that the victim referred to was the complainant in

Even though some of this evidence may not have been competent, we think the court did not err in overruling the objections. The question, as has been observed, called for the conversation concerning the crime charged in the indictment. If the witness, in answer to that proper question, in narrating the conversation, stated facts that were incompetent and inadmissible against the defendant on account of their showing the commission of other similar crimes, the appellant should have requested the court to instruct the witness to state only that part of the conversation which related to the commission of the crime in question, or, as the evidence of other similar crimes was received, should have moved to strike it out and have the jury instructed to disregard it. This would have presented the question whether it was essential to a proper understanding of the evidence relating to the defendant’s express and implied admissions of the crime for which he was on trial that the entire conversation should be received.

There is no doubt as to the defendant’s guilt, and we find no exception presenting reversible error. It follows, therefore, that the judgment and order should be affirmed. All concur; PATTERSON, J., in result.