People v. Sharp

The charge contained in the indictment arose out of transactions alleged to have taken place to obtain the consent of the common council of the city of Hew York to the construction and operation of a surface street railroad on Broadway, between the Battery and Fifteenth street. The Broadway Surface Bailroad Company was organized and incorporated under chapter 252 of the Laws of 1884. This law was enacted and went into effect on the 6th of May, 1884, and the Broadway Surface Bail-road Company was incorporated under it. The act was passed by the legislature under the amendments made to

The indictment charged the defendant and five other persons with the commission of the crime of bribery by offering and giving, and causing to be given, to one Rudolph A. Fullgraff, then an alderman and member of the board of aldermen of the city of New York, the sum of $20,000 in money, and a promise and agreement therefor with intent to influence him in his acts, votes and proceedings in the exercise of his powers and functions as a member of the common council, upon and concerning the petition of the railroad company for the consent and permission of the common council to lay down and operate its railroad through Broadway.

Objections seem to have been taken to the sufficiency of the indictment, but its charges are clearly and explicitly made and disclose a violation by this alderman and the defendants named in the indictment of the statute of the state defining the crime of bribery. Concerning its sufficiency no serious grounds of complaint were urged upon the argument of the appeals, but the objections pressed upon the court and which have been presented and answered with signal clearness • and ability, relate, to the sufficiency of the evidence given to prove the allegations of the indictment, the admissibility of important parts of such evidence, and the disposition which was made by the court of legal propositions presented to it in the charge given to the jury. These are the important subjects requiring consideration for the decision of the appeals, and the first in order, and equally if not more important than either of the others, is the objection so earnestly made that the case, under the evidence, should' not have been submitted to the consideration of the jury.

To prove this part of the case,' so far as to render it the subject of consideration by the jury, Rudolph A. Fullgraff, the alderman named in the indictment, was placed on the stand as a witness for the prosecution, and he testified to a combination, or association, having been formed by thirteen of the twenty-four aldermen of the city to exact money from the parties or company which it was anticipated

To meet this evidence and to overthrow the credit of the witness giving it, it was proved, upon his cross-examination, that he was sworn as a witness in an investigation made in the early part of the year 1886, by a senatorial committee, for the purpose of discovering the facts involved in general charges of bribery made concerning the permission and consent obtained for the construction of this railroad.

In his examination on that occasion, he denied the existence of this agreement between himself and his associates, and denied having received any sum of money whatever, either to influence or induce him to vote as a member of the board of aldermen for this permission and consent; and as the facts were all at that time as well known to him as they were stated to be upon the trial of the defendant, he then swore wilfully false if his evidence upon this trial was truthfully given; and upon that circumstance, as well as other contradictions which were explained by the witness

This subject was considered by the court in Dunn v. People ( 29 N. Y., 522 ), and each of the judges who delivered opinions in that case arrived at the conclusion that the jury were still at liberty to consider the evidence of‘such a witness, notwithstanding the fact of his having sworn falsely concerning the same subject upon a preceding examination.

In referring-to this subject, Denio, C. J., stated that “the true question is, whether, when it appears that the witness has sworn differently upon the same point on a former occasion, he is to be pronounced by the judge to be incompetent, and his testimony stricken out and wholly excluded from consideration, as though he had been convicted of crime rendering him incompetent to testify as a witness, or whether the testimony remains in the case to be considered by the jury, in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence. In my opinion the latter is the correct principle of law.” Id., 529 . And as this was assented to by Ingraham, J. who delivered the other opinion, and by all the other judges of the court, it seems to be sufficient to establish it as the principle which should be followed under this state of facts on the trial of an indictment. The same point was further examined in Deering v. Metcalf ( 74 N. Y., 501 ), where the cases were fully considered and the disposition of the court appeared to be to follow the principle which has just been stated, and not that in general terms announced in Dunlop v. Patterson ( 5 Cow., 243 ). Further consideration was given to this subject in People v. Reavey ( 38 Hun, 418 ), where the same rule was followed. And as that case has been affirmed by the court of appeals, it is in the nature of a conclusive authority against the defendant on the proposition urged in his behalf.

Previous to the' enactment of the Code of Civil Procedure, it was provided by statute that if a person should be convicted of the crime of perjury, he should not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him should be reversed. 2 R. S. (2d ed.) 567, § 1, subd. 3.

This legislation proceeded upon the understanding that

In the testimony given by him before the senatorial com mittee he had a strong motive for his own protection inducing him to make this false statement. 3No disclosure had then been made by either of his associates concerning the combination stated to have been made between them, or of the money which had been received, inducing and rewarding their action. At that time they stood together affirming their innocence of the charges made against them and ; other members of the board of aldermen. And it was not until a disclosure by one of their number had taken place, of their misconduct, that he concluded to retract the evidence he had given, and to give the testimony which he did upon this trial, and, with some discrepancies, upon two preceding trials. This state of facts presents a probability, at least, in favor of the truth of his evidence, for the motive

In the course of his examination he stated the fact to be that the sum of $5,000 dollars which were paid to him, were paid in large bills; that they were of the denomination of thousands, five hundreds, and he thought some hundreds and fifties. The last of the meetings the witness testified, took place in October and the first payment of $5,000 received by him shortly after that time; and in January or February he received the other sum of $5,000. ■

Early in February of the same year he loaned the sum of $8,000 to a friend of his, engaged in and carrying on business on Fulton street in the city of New York, and in making that loan testified that he paid out these large bills. The business was stated by him to have been transacted on behalf of the firm of Reed & Garnrick, by Thomas B. Brown, who was in their employment.

And the testimony of Brown, as a witness, was that the bills which were received were large bills, mostly of the denomination of a $1,000. This evidence did have a tendency to corroborate the testimony of Fullgraff, and so did the proceedings of the board of aldermen after the information was given that the money had been put up and awaited for its distribution, the action to be taken on the petition of the railroad company. Those proceedings characterized the conduct of the witness and his associates, and at lease some others acting with them, as that of men who had been unlawfully influenced. The hearing preceding the passage of the resolution on the sixth of August was formal and without effect in the way of delaying the consummation of the proceeding, and so was the action of these members of the board in what was done after the resolution was vetoed, as it was by the mayor on the eighteenth of the same month.

That veto prevented the resolution from taking effect and deprived the railroad company of the consent it for the time had secured of constructing and operating its railroad in Broadway.

And a suit was then brought in behalf of John H. Lydy against the president and other members of the board of aldermen restraining them from granting the desired per

In November, the resolution was again adopted conceding to the company the right to construct and maintain the railroad. This resolution went again before the mayor, and was vetoed by him the same as it had originally been. His vetoes were communicated to the board by messages, accompanied by letters and newspaper articles strongly condemnatory of the action of these aldermen. And the statement was made to them that the franchise for the street could be sold for the sum of $1,000,000, in addition to the percentages required to be paid to the city by the act of 1884. But, notwithstanding all the information given and the arguments made use of, the resolution was finally adopted, over the veto of the mayor, on the 5th day of December, 1884, by a vote of twenty-two to two of the board. These proceedings, as they were disclosed by the evidence upon the trial, were reckless and shameless, and the natural inference from them is that they would not have taken place in the manner in which they did had it not been for the fact that the testimony of this witness Fullgraff was substantially true as he gave it upon the trial. Certainly, the tendency of these facts, as well as the evidence given by the witness Brown, was sufficient to justify the court in Bolding that the evidence of Fullgraff was proper to be

And if they found it to be truthful, as under these circumstances they very well might, that would support the first important fact required to make out the charge contained in the indictment.

The other and more important fact for the defendant is whether the evidence sufficiently established his concurrence or confederation in this unlawful proceeding to allow the jury to find the fact against him. To so far prove this fact as to permit the jury to consider the evidence, it was shown that for at least thirty years this defendant had been anxious to acquire the right to construct and operate a railroad through Broadway. He was also interested in two companies, one of which, at least, would be vitally benefited by this right and very greatly injured if it should be conceded to some other railroad company. For the object of securing this right he was in Albany during a portion of the session of the legislature in the year 1883, A general surface railroad bill was at that time before the legislature, but in its provisions it excluded from the streets of the city of New York, upon which such a railroad could be constructed, Broadway and Fifth avenue. In case of its passage in this form that would have defeated the hopes and desires of this defendant. He accordingly employed counsel to aid and assist him in obtaining such- a change in the bill as would exclude Broadway from the exception, and the efforts of the counsel were strenuously directed to that end. They, however, failed of success and the bill was passed by the senate and the assembly, containing the exception of these streets. The defendant is then stated, by the witness Pottle, who was an engrossing clerk of the legislature, to have sent for him and upon the occasion of the interview afterwards taking place, he desired the witness to change the bill in such a manner as was indicated by him, the witness stating the defendant’s request to be that Broadway and Seventh avenue should be inserted in the act. The witness declined, substantially, to make the change, and he was then, it is stated, desired by the defendant to produce the bill and hand it to him, which was also declined, although an offer of a pecuniary reward was at the time made to accomplish either of these results. This evidence tended to establish the intense eagerness of the defendant to secure the passage of the law, or a fabricated change in it that would enable him to avail himself of the right to "construct a railroad in Broadway. And, after he failed in obtaining either result in this manner, counsel was employed by him to appear before the govern- or and resist the approval of the law by the executive.

During the next session,- the act of 1884 was introduced, containing no exception of these streets as was contained in the bill of 1883, and the defendant interested himself to promote the passage of that act, and for that purpose also employed to aid and assist him the witness, Edward B. Phelps, who had contributed to his defeat during the session of 1883. The employment was made under an agreement with Phelps that he should be one of the incorporators in the company afterwards to be formed to construct and operate a railroad in Broadway. And by their joint efforts and the efforts of their counsel, the bill was enacted and received the sanction of the governor. But in the organization of the corporation, the witness Phelps was not included as a corporator and was greatly dissatisfied with the proceeding of the defendant resulting in his omission. This, however, was afterwards settled by the defendant with Phelps by paying him the sum of $50,-000. These facts, together with others disclosed by the evidence, to which further allusion is not considered necessary, sufficiently sustain the conclusion that the defendant was willing to resort to extreme, as well as unlawful measures, to obtain the consent secured by him for the construction of the railroad, and render it probable at least that himself and his associates co-operated with the aldermen favorable to his enterprise, in an unlawful manner, to bring about the result which was finally secured.

It appeared by the evidence of Eullgraff that it was at one time proposed in the meeting of himself and his associates that the money to be divided between the aldermen voting for the measure, should be placed in the hands of Maloney, who was a reading clerk of the board, and is one of the defendant’s charged with crime by the indictment. That-disposition was not made of the money, but the proposal was evidence of the fact that he was considered to be accessible for carrying out the designs and purposes of the combination. And it was made to appear by the evidence that Maloney, before the vote taken upon the resolution or report of the committee on the 6th of August, 1884, was in the habit of meeting with the defendant and others named in the indictment, at the office where the business of the Broadway Surface Bailroad Company was made the subject of attention and consideration. No reason appears explaining the fact of his attendance there other than the "probability that he was acting as the representative of the associated aldermen and conferring with the defendant and

This presumption is further extended and matured by the fact proved by the witness, Robert E. Dowling, who on the 5th of August, 1884, received a paper from the defendant, to be táken to the place of meeting of the board of aldermen and there delivered to the defendant Richmond, who was the president of the Broadway Surface Railroad Company, with the injunction, “Don’t let anyone see you giving it to him. Give it to Mr. Richmond and tell him to give it to Mr. Maloney.” The witness looked at the paper while it was in his possession and gave such a description of it as left ground for believing that it was the document the aldermen were expected to adopt, giving permission for the construction of this railroad. And such seems to have been the understanding at the time of Mr. Richmond, for he declined to receive it and expressed himself as disapproving the action of the defendant in sending it personally to him, and directed Dowling himself to hand it to Maloney, who was in another room, and that was then done by the witness. These facts are not reconcilable with any other view than that the defendant was engaged in endeavoring to influence these aldermen and to promote and complete his object by the intervention of Maloney.

It further appeared that in the month of July, 1884, the Broadway and Seventh Avenue Railroad Company, which was vitally interested in securing this privilege from the board of aldermen for the Broadway Surface Company, issued a series of bonds secured by a mortgage for the sum of $500,000. The object of that was stated to be that it would be necessary for this company in consequence of a contract made with the Broadway Surface Railroad Company, to purchase lands, enlarge its depots and extend its facilities.

An application was made to an engraving firm on the nineteenth day of July to engrave these bonds, and more time was asked by the engravers than the defendant Foshay, who was the president of the Broadway and Seventh Avenue Railroad Company, was willing to allow, and the time was so far reduced at his solicitation as to secure the preparation of the bonds in seven days. These bonds after , they were engraved were executed by the proper officers of

This inference is also strongly maintained by the fact that no part of the money raised upon the bonds appeared to have been used in the purchase of lands, or in enlarging the depots, or extending the facilities of the Seventh Avenue Railroad Company. And the fact that the defendant himself gave no account of about $400,000 dollars that went into his hands when he was examined before the senatorial committee has a very decided tendency, to say the'least, in the same direction. For if he had used the money in any lawful enterprise it is incredible to suppose that he would not at that time have been willing to give a substantial account at least of what he had done with it. A further fact, confirmatory of the same view, was the circumstance that the defendant himself proposed to a meeting of the board of directors of the Broadway Surface Railroad Company, to construct and equip the railroad and pay all the expenses incurred or to be incurred, in consideration of all the bonds and all the stock of the company. That was accepted by a vote of the directors who acted "without further inquiry or discussion, as the board of directors of the Seventh Avenue Railroad did in resolving upon the issue of the series of $500,000 in bonds on which that amount of money was raised. The stock of the Broadway Surface Railroad Company consisted of 10,000 shares of $100 each share, and under this resolution 9,520 shares were passed over to the defendant. And so were two series of mortgage bonds upon the railroad and property of the company, the first amounting to the sum of $1,500,000. and the second to the sum of $1,000,000. These shares and bonds were received by him in consideration of his proposal to construct the railroad for a distance of probably

This witness states that the fact of the mayor having vetoed the favorable resolution which had already been passed by; the board, was mentioned in their conversation, and that in that conversation it was in substance stated by the defendant that the resolution would be passed over the mayor’s veto, for the reason that the defendant had the aldermen fixed. There was some, but not very great, discrepancy between this statement of this witness and the evidence given by him before the senatorial committee, consisting, as it was stated in the omission, to use the word “fixed” his statement there, being that the defendant informed him that it made no difference, it would be passed over his (the mayor’s) veto. Upon further examination of the witness, however, he testified that he recollected that this word “fixed” was used by the defendant, but he was in doubt as to the manner in which that use was made. It was also shown that, the defendant personally interested himself in securing tho special meeting of the aldermen on the morning of the thirtieth of August; that in the preceding evening he called upon Pierson, one of the aldermen, - and notified.him that-the board was to meet the next morning at nine o’clock, and requested him to meet Maloney, who had charge of the call at half-past eight o’clock on tho comer of Fifth avenue and Twenty-third street, and sign the call, which Pierson states that he did. The case is not without further evidence, but not .so direct and important

In the course of the cross-examination of the latter, he testified that he voted for the resolution from a sense of duty and believing that the interests of the public would be promoted by the construction of this railroad. And upon that evidence it has been insisted by the counsel, who have so ably represented the defendant, that the case was not one of bribery, but rather of extortion on the part of the aldermen themselves. But the further testimony of the witness, in which he stated that he was influenced in his vote by the promise and expectation of the money which was to be paid, sufficiently meets this point to justify its submission to the jury.

Upon the whole _ case there was evidence as to each material branch of it, which the court could not withhold from the consideration of the jury, and its decision to submit the case as it was to them was fully supported by the law as well as the testimony. The offense charged is one in which the parties concerned in it always seek conceal ■ ment of their acts and endeavor to avoid discovery and detection, and when it may be made out upon a trial in a court of justice, it must be mainly dependent upon circumstances as it was in this instance, These circumstances were such as to point directly to the strong probability that the charge was correctly made, and together with the circumstance that the amount required by the aldermen was precisely the same as that raised by the sale of the bonds, warranted the jury in arriving at the conclusion which they did by their verdict.

In the examination of the witness Fullgraff he was asked whether in June, 1884, he made any agreement or promise to vote for the Broadway Surface Railroad Company’s petition for a road on Broadway, for money. To that the counsel for the defendant objected, on the ground that it was asking the witness whether in fact an offense had or had not been committed, and that the question should be directed to a specific conversation or transaction, and that it should be first shown whether the conversation or transaction was had with the defendant or some other person. The court overruled these objections and allowed the evidence to be given, to which an exception was taken, and the witness answered, “ I did.”

While this objection was dwelt upon by the counsel in the argument as an erroneous ruling of the court, it is not necessary to consider whether that was so or not, for the wit

It was also objected that the statements made in the meetings of these aldermen should not have been received as evidence upon the trial. But these were not mere conversations between the aldermen who were gathered together on these different occasions, but they were negotiations and arrangements by which a definite understanding and agreement was reached as to what the vote should be on the petition of the railroad company, and what consideration they could expect in the way of money to secure such vote. What was proved was evidence to establish the agreement through and under which the witness Fullgraff was to receive the money mentioned in the indictment, and which, according to his testimony, was carried out in the future proceedings of the board of aldermen. It has been urged in this connection that the testimony was received, in part at least, if not wholly, under the announcement made by the' judge presiding at the trial that any evidence would be admissible against the defendant, that could be received against Fullgraff if be was on trial. And to a certain extent, and perhaps as far as the learned justice intended to go, this was a correct ruling. For direct evidence sustaining, the charge that Fullgraff had entered into the agreement which is stated to have been made with his associates to vote in the manner which he did, was so far evidence against the defendant indirectly, for it tended to make out one of the grounds upon which the indictment rested. To that extent the ruling seems to have been free from objection, and no evidence appears to have been received upon the trial under this ruling, beyond that which was appropriate to this object

It was, also, objected that the. statment made by DeLacy that the money was up, should not have been received. But this objection, certainly, cannot be sustained, for it was important information communicated to Fullgraff by one of their number, having a material relation to and explanatory of the subsequent action. They had agreed to vote in favor of the concession of the right to lay the railroad through Broadway for this sum of money, and it was important evidence indicating the indictment to the action of Fullgraff, at least, to prove the fact that he understood, or was informed that the money had been put in such a position as to be accessible to him after his vote had been

No more need be added as to the admissibility of the evidence of Brown concerning the loan by Fullgraff to Garnrick & Reed. For as that was evidence tending to corroborate the testimony of Fullgraff it was legally received upon the trial. There was a co-incidence between the character of the bills which were received by Fullgraff from DeLacy, who appears finally to have acted in the distribution of the money and those used to make the loan, which entitled this evidence to be admitted for the considation of the jury. It is true that it was in no manner conclusive, but it was a circumstance connected with the others having a bearing upon the probabilities, a part of the charge contained in the indictment.

An exception was also taken to the allowance of the evidence given by the witness Phelps concerning the fact that he resisted the passage of the bill for surface street railroads in 1883, and upon an agreement with the defendant that he should become an incorporator in the Broadway Surface Railroad Company, aided and assisted him in obtaining the passage of the act in 1884. But this evidence had a plain tendency to prove the great eagerness of the defendant for the passage of a law which would enable him through the means of a corporate organization, to acquire the right to build and operate a railroad in Broadway.

Little time is required to be devoted to the consideration of the objections made to the introduction of communications sent to the board of aldermen after the 30th of August, 1884. That evidence has already been considered. It clearly had a bearing in the way of maintaining the probability that the confederated aldermen were actuated by the motive, expectation and design mentioned by Fullgraff in his evidence as a witness. They had a tendency to sustain such evidence, and for that reason, having been brought to the attention of the board of aldermen as they were, were properly received upon the trial of the indictment. Indeed, any fact or circumstance tending to maintain the probability of the truth of Fullgraff’s statement was legal evidence which the court was bound to receive, and this was of that description.

The admission of the testimony of the witness Pottle, a reading clerk of the assembly, was very strenuously objected to, and it has been likewise resisted upon the argument of the appeals. His evidence has in part already been mentioned in considering the question whether the case should have been submitted as it was to the jury. The proposal was to prove that the defendant offered Pottle the sum of $5,000 to add the words “ Broadway and Fifth Avenue” to the bill, thereby permitting a horse railroad to be constructed upon such streets, when it otherwise could not be done. And that when the witness declined that proposition, the defendant offered him the same amount if he would gave him the original bill, which had then been passed.

This offer of proof was objected to upon several distinct grounds, but the one now relied upon is that it tended to establish the commission of another crime by the defendant. And such, no doubt, was the effect of the evidence,

People v. Shulman ( 80 N. Y., 373 , note), where Judge Earl, delivering the opinion of the court, used this language: “But it is said that the transactions proved here were too remote and not sufficiently related to and connected with the principal transaction to be competent evidence. It is obviously impossible to lay down any general rule Hmiting the time within which such transactions must have taken place in order to render proof of them competent. It is generally said in the cases that they must have occurred about the same time as the commission of the alleged crime, but that is quite indefinite, and in some of the reported cases proof of them has been received although they occurred months before and after the time of the crime. Each case as to the application of this rule must depend largely upon its own circumstances, and not unfrequently the limit of them must rest entirely in the discretion of the judge presiding at the trial.” Id., 376 . The criterion ordinarily followed is whether the defendant, in the different transactions, appears to have been actuated by the same motive or intent, and if he does, one may be proved to exemplify and sustain the existence of the alleged intention leading to the other. In People v. O'Sullivan ( 104 N. Y., 481 ), it was held to be competent, upon an indictment for a rape, to prove a preceding assault by the defendant on the prosecutrix for the same purpose. And in Weed v. People ( 56 N. Y., 628 ), the general rule was followed that evidence tending to prove any fact constituting an element of a crime charged in an indictment, is competent, although it may tend to prove the person guilty of some other crime. This evidence had a tendency directly to sustain a distinct element in the case set forth by the indictment. And Com. v. Tuckerman ( 10 Gray, 173 , 200); Com. v. Jackson ( 132 Mass., 16 ); State v. Lapage ( 57 N. H., 245 ); Com. v. Abbot ( 130 Mass., 472 ), and Com. v. Merriam ( 14 Pick., 518 ), support the same view. What is required, and all that is-required to entitle the court to receive and act upon it, is that it shall have a direct bearing upon the development of the case presented by the indictment. And Shaffner v. Com. ( 72 Penn., 60 ), is not in conflict with, but concedes the correctness of this principle. And so does the case of Com. v. Bradford ( 126 Mass., 42 ), and also the case of Com. v. McCarthg (119 id., 354). It is subject, however, to the-qualification that the evidence tending to establish the commission of another offense shall be so far limited and restricted by the court as to leave the jury only at liberty to use it to discover the motive of intent actuating the

And the same qualification was attached to the rule in this state in Mayer v. People, 80 N. Y., 372 . And the principle permitting the admission of this character of evidence receives the additional support of People v. Wood, 3 Parker, 681; People v. Stout, 4 id., 71, 129, and Pierson v. People, 79 N. Y., 424 .

And at the close of the trial the bearing, weight and effect of the evidence were carefully guarded by the court, for the jury were directed .by the justice presiding at the trial, only to consider it as showing the extent of the defendant’s feeling, interest and desire. And the statement was then made to them that, “ It is here because it was part of a conversation tending, like other evidence in the case, to show motive, interest and desire. So far as it tends to throw any dark shadow upon the character of the defendant, I desire you to eliminate it from your consideration, and treat it merely as evidence tending to establish depth of interest, motive and desire.” And that was aE that was required by either of these authorities, to guard the jury against any improper use being made of this testimony. It has been said in answer to this position that jurors hearing such testimony would be affected by it, no matter what might be said to them in the way of guarding against such a result. But while such intimations have sometimes been given concerning the trial of criminal cases, they were much better adapted to periods when intelligence and judgment were not so general as they now are. Jurors are now reading, thinking and intelligent men, having control of their inclinations and judgments. And when, they are directed under the solemnity of their oaths to restrict a particular species of evidence exclusively to one considertion or aspect of the case, it may not unreasonably be supposed that they will have the ability as weH as the disposition to comply with the direction. That there has been progress made in this branch of the law is evident from the form of the present statute defining the competency of jurors, and allowing them to hear and determine a criminal charge even where they may have forged or expressed an opinion, provided they can lay that opinion out of sight and receive the evidence and dispose of the case without being affected by it. The law assumes the existence of this ability to control the action of the mind, and so do the authorities to which reference has been made. The ruling has been further assailed because the offer was regarded by the defense as specious and insecure, and made for the purpose of laying before the jury the fact of an attempt by the defendant to commit another offense. If

But there is no evidence in the case which would warrant the conclusion being adopted that this proof was offered for any other purpose then that disclosed during the trial, which was to establish the fact of the defendant’s inclination, interest and desire to obtain this franchise. The case of People v. Gibbs ( 93 N. Y., 470 ), has really no application to this appeal, for there the assault which was allowed to be proved was upon a different person, and it had no relation, whatever, to the one for which the defendant was then upon trial. The objections are considered, therefore, to have been properly overruled and the evidence legally received, as it was limited in this manner by the charge of the court.

Proof of the answers made by the defendant in his examination before the senatorial committee in the year 1886 was in like manner objected to on the part of the defendant. The objections were overruled and the defendant’s counsel excepted to the decision, and these answers were in part read by the counsel for the prosecution, and the residue afterwards by the counsel for the defense. As the answers were given before the senatorial committee they tended to establish the fact that he had untruthfully answered questions propounded to him. And that instead of disclosing, as it was reasonable to assume he had the ability of doing, what had been done with a large amount of money, which had passed through his hands during the period referred to in the indictment, he denied having any recollection of their disposition. This evidence afforded ground for argument, that the defendant had used these moneys in a manner which he was unwilling to admit; that instead of being applied and appropriated to some lawful purpose or business, it had been used to bring about an illegal result, and probably the one charged to have been secured by him in the indictment. This evidence is urged by the counsel for the defendant to have been improperly received upon the trial, for the reason that by section 6 of article 1 of the constitution of the state, it has been declared that, no person shall be compelled in any criminal case to be a witness against himself. And this provision of the constitution having been liberally construed in favor of the accused has been held to include all cases where he may be compelled to furnish or supply evidence, which may be used to his injury afterwards upon any criminal trial or proceeding brought against himself. Boyd v. United States, 116 U. S., 616 ; State v. Froiseth, 16 Minn.,

The question accordingly arises whether these answers given before the senatorial committee were compulsorily extorted from the defendant. As a matter of fact they were not; for the proceedings • before the committee show that these answers were all voluntarily given by the defendant.

There was no objection on his part that he could not answer the questions without his answers having a tendency to criminate himself, and no ruling by the committee that he must give such answers. But he was simply brought before them by their summons, and the examination proceeded without any objection whatever interposing any privilege of the defendant by which he was entitled to be shielded or protected from making any answers which in any other trial or proceeding would have a tendency to establish the existence of a criminal charge against him. It is not necessary, however, that the defendant should have invoked this protection from the committee before he made his answers to entitle him to the exclusion of the evidence, if in fact he was by that statute compelled to answer the questions propounded to him, for that compulsion may as well be created by statutory authority requiring the witness to answer as it would be by a direct ruling on the particular occasion compelling him to answer. So that while his evidence before the committee appears to have been voluntarily given, so far as a failure to object or claim his privilege would render it voluntary, still if ho was acting under a mandate of a compulsory statute, the same principle of protection would apply as would exist if he had actually objected to answering the questions put to him. And it is on the ground of the existence of such a statutory enactment that the endeavor has been made to sustain the objection to the admissibility of the answers of the defendant given before the senatorial committee. The statute, and the only statute relied upon as compulsorily requiring the defendant to answer the questions which were put to him, is that of section 79 of the Penal Code of the state, which has declared that: A person offending against any provision of any foregoing sections of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person. • But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe whicli has been accepted, shall not thereafter be liable to indictment,

And an effort has been made to bring the evidence given by the defendant before the committee, within this section of the Penal Code, for the reason that its members were engaged at the time in making an investigation under a resolution of the senate, and that such investigation was directed to the charge of the bribery of the board of aider-men in granting this concession to the Broadway Surface Railroad Company.

To give this word “investigation,” as it has been used in the section, point and effect in this case, reference has been made to the preceding law contained in section 8 of chapter 742 of the Laws of 1869. But that does not aid in the construction of this section contained in the Penal Code, for the investigation mentioned in this preceding law was clearly expressed and differently described. It was an investigation “by any committee of the legislature, or either house thereof, into the conduct of any member thereof,” and that is all that was provided for in this respect by section 8 of the preceding law. The investigation was there particularly limited to an inquiry into the conduct of any member of the legislature by either house, or a committee thereof, while in this section of the Penal Code it has not been so applied and has in no manner been controlled in its signification otherwise than by the context and language of the section itself. It was evidently not intended as a continuation of the preceding law, but it was a new and distinct provision from that embodied in that law. And instead of being designed to perpetuate that legislation, it was probably more expressly intended to carry into effect article 15 of the constitution of the state, as that was adopted in 1874, and went into effect on the 1st of January, 1875. By that section it was declared that “Any person who shall offer or promise a bribe to. an officer, if it should be received, shall be deemed guilty of a felony and liable to punishment, except as herein provided. No person offering a bribe shall upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto. And he shall not be liable to civil or criminal prosecution therefor, if he shall testify to the giving or offering of such bribe. Any person who shall offer or promise a bribe, if it be rejected by the officer to whom it is tendered, shall be deemed guilty of an attempt to bribe, which is hereby declared to be a felony.” The case of the defendant is manifestly not within the language of this section of the Constition. For while the jury were supported in the conclusion adopted by them that he had both promised and given a

The connection in which the word investigation has been used in this section, leads directly to the conclusion that it was designed to relate exclusively to proceedings in court, or before a committing officer, for it has required the offending witness to attend and testify only “upon any trial, hearing, proceeding or investigation” in this connection subjecting it to substantially the same signification as the preceding words are entitled to receive. And they clearly include no other than such proceedings as have just been mentioned. It is simply a continuation or a repetition of what has before been declared for more abundant caution, and to include only all legal proceedings carried on in courts of justice or before judicial officers. It is a general rule of construction, applicable to statutes enacted in this manner, that the words repeated and continued, as these have been, shall be held to relate to ‘the same subject-matter or course of proceeding. Corning v. McCullough, 1 Com., 47, 68-9; Sands v. Hill, 55 N. Y., 18 , 23; Gleadell v. Thomson, 56 id., 194, 197; McGaffin v. Cohoes, 74 id., 387, 389.

The subject evidently within the legislative mind was a trial, hearing or proceeding upon a particular charge. And that was the subject which it was intended to include in this additional word investigation, for it was not used independently to include a different or distinct class of cases or proceedings as the words were in the act of 1869, but in connection with the preceding language which it was intended to some extent to characterize and enlarge. _ And it may be very well so limited, and full effect still be given to the pre

To derive the legislative meaning from the section, it is essential to examine and consider together all of its provisions. Neither can be rejected as not entitled to consideration. And by considering the entire section together it is manifest, although perhaps somewhat obscurely expressed, that the proceeding in which the witness is compelled to attend and testify, is to be not only a legal proceeding, but it is to be a proceeding against another person charged with having offended against one of the preceding provisions of the law, by way of a trial, hearing, proceeding or investigation of that specific charge, and no other, and no less than that. And this construction conforms to the section of the constitution already quoted, and section 4 of the same article which have been clearly limited by their language to a legal prosecution.

Beyond these considerations is the additional circumstance that the legislature provided by sections 68 and 69 of the same Code for the precise cases of investigations before either house of the legislature, or any committee thereof. And, having so expressly provided for that proceeding, it cannot be reasonably supposed that it was intended to include it again in the provisions made by section 19. For if that had been the intention, and the word “investigation,” as used in this latter section, was intended to include proceedings before the legislature, or a committe of either house, there clearly would have been no occasion whatever

That case has also determined that on such an investigation before a legislative committee the person examined as a witness is not entitled to counsel, as he manifestly would be if it was a legal proceeding or investigation against him self. For by section 6 of article 1 of the constitution, a person proceeded against on a criminal accusation is entitled to be allowed counsel to appear and defend for him. And this provision, although in its language applicable only to a trial, has been liberally enlarged by construction so far as to include proceedings before a court-martial. People v. Van Allen, 55 N. Y., 31 . And may, in the same spirit, be properly extended to all proceedings where a criminal charge against a person as an accused individual may be made and heard. The fact, therefore, that counsel is not entitled to appear on behalf of any witness in investigations of this description supports the construction already mentioned, that it was intended to confine the provisions of section 79 to proceedings against a distinct person and not to legislative investigations, which are not proceedings of that description.

Section 69, applying to and including these investigations, although enacted in broad language, has not required a appearing before a legislative committee to answer

This section contains no such provision, and it accordingly is not to be construed as requiring the witness to be compulsorily deprived of his privilege by giving answers tending to his own crimination. He is to answer every material and proper question which under the constitution includes only such questions as have no tendency afterwards to criminate him, or subject him to any criminal legal proceeding. The section is to be construed with reference to the fact that the constitution deprives it of any greater effect.

This subject was considered very much at large in Emery’s Case, 107 Mass., 172 . He was a witness brought before a legislative committee, for examination, under a somewhat similar statute. He declined to answer for the reason that his answers might have a tendency to subject him to a criminal proceeding, and he was committed for a contempt in not answering the questions. After his commitment he was brought before the court upon a writ of habeas corpus, and it was held by the court that he was entitled to his discharge, for the reason that the law could not oblige him to answer such questions, in view of the constitutional provision of the state, without at the same time specially providing for his protection in such a manner that his answers should not afterwards be used against him.

That it should be so construed appears to follow from other and more general statutory provisions uniformly so understood. By subd. 6 of § 143 of the Penal Code, it has been declared in the same unqualified manner that a person shall be guilty of a misdemeanor who contumaciously and unlawfully refuses to be sworn as a witness, or after being sworn, to answer any legal and proper interrogatory. The same provision was contained in 2 R. 8 . (2d. ed.j, 207, § 10, subd. 5, making it as the present Code, as well as the Code of Criminal Procedure have, a contempt to refuse to answer any legal or proper interrogatory. Sections 635 and 619 of the Code of Criminal Procedure. These provisions, as well as that contained in section 69 of the Code, by their general language ostensibly include every material or pertinent question that may be propounded to the witness. But they never have been construed to have that effect. The construction placed upon them on the contrary has been, that while the language has been employed in this general manner, the witness is not deprived of his privilege by it or compelled to answer, but may insist upon that privilege as a protection against answering any question which he deems to be criminatory in its effects. And if after availing himself of that privilege he is then compulsorily required to answer by any tribunal or committee before which he has been sworn, that compulsion will entitle him to the protection of the constitution, and prevent his testimony from being used afterwards against him. These laws have always been so administered and carried into effect.

And for that reason, as they do not compel the answers where the witness may appear, and without invoking the protection of his privilege, voluntarily gives his evidence, that evidence may be afterwards read against him although it may have a tendency to subject him to a criminal charge.

The rule upon this subject was stated in the leading opinion of the court in Hendrickson v. People ( 10 N. Y., 13 ), and its correctness was, also, agreed to in the opinion of Gardner, G. J. It was there held as the law that: “It is now regarded as a well-settled rule and recognized in the elementary books, that where a witness answers questions upon examination on a trial, tending to criminate himself, and to which he might have demurred, his answers may

Such answers are deemed voluntary, because the witness, may refuse to answer any question tending to criminate him. 1 G-reenl. Evi., § 225. If, however, he should be compelled to answer after claiming his privilege, his answer will be deemed compulsory and cannot be given in evidence against him. Id., 27 . This states the law of the case applicable to this appeal. The witness was not obliged by any statutory provision to make or give the answers which he did before the committee. And not being so obliged, if it was his purpose to protect himself against the use of such answers afterwards in a criminal proceeding, which might be instituted against himself, it was necessary that he should claim and insist upon his privilege, protecting him against the obligation to answer if such answers would criminate him. He did not do so, but voluntarily answered the questions propounded to him by the committee. And having given those answers voluntarily and without any compulsion of law, or of the committee, they were admissible in evidence upon his present trial under these general rules of law, and particularly under their enunciation and explanation contained in the case just referred to, where it is, also, added, that “ Independent of any supposed auhority, I do not see, how, upon principle, the evidence of a witness not in custody, and not charged with crime, taken either on a coroner’s inquest, or before a committing magistrate, or grand jury, could be rejected. It ought not to be excluded on the ground that it was taken on oath. That reason would exclude, also, the statements-of witnesses on the trials of issues. The evidence is certainly none the less reliable because taken under the solemnity of an oath. No injustice is done to the witness, for he was not bound to criminate himself, nor to answer in regard to any circumstances tending to do so. * *

Nor can the exclusion of the evidence depend on the question whether there was any suspicion of the guilt of the witness lurking in the heart of any person at the time the testimony was taken. That would be the most dangerous of all tests, as well because of the readiness with which proof of such suspicion might be procured, as of the importance of repudiating it. Besides, the witness might have no knowledge of the existence of any suspicion, so that his mind could not be affected or his testimony influenced by it. It is only when crime is imputed to him, and he is examined as to such charge that there is good reason for treating him as a party to the proceeding. The common law has been as tender of the rights of witnesses as of parties. It is the policy of the common law never to

The possession by Aldermen Farley and Hiller of large Mils, after the action had'been taken by the common council, and by Maloney of two gold certificates, one for 01,000 and the

The law as to cases of this description where there is probable confederacy of action between different individuals in the commission of a crime, some performing one act, others another, to carry into effect that which may appear to be a concert of action resulting in the crime, is that what each person in the promotion of the common enterprise may say or do, is admissible against the others. They are circumstances tending to establish the commission of the offense alleged in the indictment, and they are so considered and mentioned in a standard work upon the administration of the criminal law. Wharton’s Americans’ Crim. Law (4th ed.), §§ 2351, 2355.

There is ordinarily no other mode in which the commission of the crime of bribery can be established as a matter of fact. Very large liberty is justly allowed in making the proof by means of circumstances having either a direct or even a remote bearing upon the probability of the truth of the charge. And whether it be alleged in the form of a conspiracy between the persons charged, or a mere confederation or concert of action is not important. The test is whether the parties charged were probably co-operating together to bring about a particular criminal result. And when that probability has been reasonably well-established, evidence may be received of their acts and statements contributing to that end. And it has been so considered in Kelley v. People ( 55 N. Y., 565 ), Place v. Minster ( 65 N. Y., 89 ), State v. Winner (17 Kansas, 298). And the cases referred to by the counsel for the people of Cox v. State (8 Texas Appeals, 302), Avery v. State (10 Texas Appeals, 210), and Heard v. State (9 Texas Appeals, 1), support the same principle of law. All these acts tended to shed light on the conduct of these parties and they were connected with the charge in the case by the evidence of Fullgraff and that of the individuals who purchased the bonds and paid for them in large bills of the description mentioned in this evidence.

A further objection was taken to what took place between Miller and DeLaey, when the latter handed the

In the case of a long and intricate trial, as this was, it may not be unexpected that slight and formal errors will intervene. And if the judgment should be reversed because of the correctness of more technical objections of this character, the administration of the criminal law in cases of this description must necessarily fail. To prevent that has been one of the objects of the present codifications of the law relating to criminal proceedings. And to secure that end it has been declared by section 542 of the Code of Criminal Procedure, that “after hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” This was an exception, even if the answer was within it, of that description. And as mere supposition of the witness, in no respect tended to prove any fact to the prejudice of the defendant; for that reason, under this authority, it is required to be disregarded.

In the course of the trial the prosecution were allowed to prove that Maloney, Keenan, DeLacy, Dempsey and Sayles were in Canada. The defense excepted to the ruling allowing this proof, but it was given under the announcement of the district attorney that the object was no more than to show their absence from the state, and the consequent inability to produce them as witnesses upon the trial. The object of this proof, which was given as it was proposed, was to avoid any anticipated or expected argument on the part of the defense that the prosecution should produce and swear these witnesses who would be able to give positive evidence of the facts if a crime has been committed, instead of relying upon the circumstances which the testimony in the case tended to prove. It was not given to establish the fact of flight on the part of either of these persons. And the case, therefore, is not within People v. Stanley ( 47 Cal., 113 ), but it was solely and only to prove their absence beyond the jurisdiction of the court. And that proof was received by the court, and properly so too. Pease v. Smith, 61 N. Y., 477 .

And beyond this, is the further fact, to which weight and effect should be here given, that the defendant’s counsel previously proved by the cross-examination of Fullgraff" that DeLacy, one of these persons, was in Canada. And having in this manner opened the door to such proof, could not very well prevent the district attorney from following it up by additional evidence on the same subject, and including these four other persons. People v. Buddensieck, 4 N. Y. Crim. Rep., 230 ; 103 N. Y., 487 , 496.

No good reason appears in favor of sustaining the objec

No possible injury was occasioned to the defendant by allowing the mayor to state in his testimony the considerations influencing him in writing his veto message, for that, clearly appeared from that document and those accompanying-it, which were sent in to the board of aldermen. What he said was entirely harmless upon this subject, and gave no other point or influence to the documents themselves than was entirely apparent from their face. It has already been held that the court was right in receiving them as .part of the proof bearing upon and indicating the probable motives, of the members of the board of aldermen, who, after they were received, still voted for the granting of this franchise-to the defendant’s company.

These latter objections have neither of them been argued with any degree of earnestness, but have been suggested by way of memoranda in the points upon which errors are affirmed to have intervened in the progress and disposition of the trial. They have been examined the same as though they were more fully impressed upon the attention of the-court, but their examination fails to sustain either position. And for that reason neither of these exceptions is found to-be of any substantial benefit or advantage to the defendant.

The other objections arise upon exceptions taken to the charge of the judge presiding at the trial. It is not requisite that they should be examined fully in detail as they have been noted upon the brief, for the reason that the charge is not liable to the objections contained in the notation. And as to some of them, the points have already been considered and disposed of adversely to the defendant. The more prominent exceptions, and those deserving some consideration, relate to particular suggestions or remarks made in the submission of the case to the jury.

Exception was taken to the reference made by the judge

Exception was also taken to the division of the charge into two parts, but that was formally done to bring the leading attributes of the accusation, as they were required to be proved, before the minds of the jurors. There was no error in what was said upon this subject, and not the least ground for supposing that the jury could have misunderstood the case in any of its aspects, by this suggestion. A further exception was taken to what was said to the jury concerning the record of Fullgraff, as bearing upon the probability of the truth of his testimony. That, according to the explanation which was given, included his acts and votes as a member of the board of aldermen, from the time when the unlawful confederation was entered into until it was finally completed, and it was so explained by the court. This record of this series of acts was admissible and justly to be considered by the jury, as tending to indicate that Fullgraff and the others acting with him, in conceding this franchise by their votes, were actuated by a corrupt agreement and understanding made upon the expectation that they were to be paid for it, as he states they were, by persons acting in the interest and for the Broadway Railroad Company. The Lydy injunction was not referred to as a corroborating circumstance in the case, but as one included in its history, explanatory to some extent of, and affecting the conduct of the aldermen, whose influence was favorable to sustaining the application of the company. Indeed, there seems to be no substantial point presented by either of the exceptions to the charge of the court from which the defendant can derive any practical advantage. The case was very clearly submitted to them; and although general remarks were made in the course of the charge that were simply suggestive from the evidence, the jurors were finally confined in their action to the disposition of the case upon the testimony. They were required to exclude all other considerations than the evidence from their minds and to dispose of it under their obliga

In this view the court was requested to charge again that the attempt to bribe Pottle in the year 1883, if they believed his evidence, was not to be considered by them in any aspect of the case. And the court responded, it is only to be considered as tending to show the defendant’s interest in the Broadway enterprise, and motive. It is not to prejudice the defendant as tending to show an independent crime. And upon the effect of the evidence of the witness Fullgraff it was in like manner added that it was not safe for the jury to convict the defendant upon his testimony unless he was fully corroborated, and that the jury, in their discretion, might entirely reject his evidence. In all these respects great care was taken to protect the defendant from an unjustifiable result in the consideration and disposition of the case. All that he could ask was conceded to him.

No statement was finally left to go to the jury which could improperly prejudice him, and no legal ground has been found upon which either of the exceptions generally referred to in the argument of the defendant’s counsel can be maintained.

The court was asked upon the argument to set aside the verdict of the jury, because of the general observations made to them concerning the character and enormity and the disastrous effects of the crime of bribery mentioned in the course of the charge. This argument was further impressed upon the consideration of the court by the fact that eleven of the twelve jurors who sat in the case had formed an opinion as to the guilt or innocence of the defendant. But, for the reasons already advanced, this verdict should not be set aside, for the jury were not left at liberty to dispose of the case upon any influence which might be produced in their minds by the circumstances alluded to, but they were confined to the evidence itself and the convictions which such evidence should impress upon their minds. The jurors cannot, because of their opinions, be regarded as hable to have been improperly influenced by such observations, for they all testified, certainly with ap

An appeal was taken from an order denying a motion to quash the indictment. But it was held by three members of the court, in which decision the presiding justice did not participate, that this appeal had not been authorized, and that the order then made, which preceded the trial of the indictment, being no part of the judgment roll, as that has been provided for by section 485 of the Code of Criminal Procedure, by an amendment taking effect on the 1st of June, 1887, was not before the court for its consideration. The appeal which the Code has provided for is to be from the judgment, including any actual decision of the court in an intermediate order or proceeding forming a part of the judgment.

This order being no part of the judgment, as that is now provided for, was not to be considered to be before the court in the form in which the appeal was presented (Com v. Eastman, 1 Cush., 189 ), but the entire subject matter of the case has been considered in the appeal from the judgment, the order denying a new trial and denying the motion in arrest of judgment.

As the case appears, no sufficient reason has been found for interfering with the result attained by the judgment. The charge, while among the gravest which can be made and most difficult to establish, was proved in such a man-, ner as to render the subject of the defendant’s guilt within' the province and decision of the jury. Their conclusion was adverse to his innocence. And as no legal errors intervened to his prejudice during the progress of the trial, the case as it is presented is one for the affirmance of the conviction and the orders included in the appeal, and which, by the practice, are regularly before the court.

As the evidence has been given with all its great details, it leaves the conviction upon the mind after a full examination of it, that it was not only sufficient, but that the jury were right in drawing and acting upon the conclusion which they did from it.

Both the judgment and the intermediate orders included in the appeal should, therefore, be affirmed.

In concurring in the able and exhaustive opinion of Mr. Justice Daniels, it may not be amiss to add a few suggestions in reference to some of the

It was claimed by the defendant that he had not been afforded the fair and impartial jury which was guaranteed him by the laws. An examination of the record shows, however, that this point is by no means well founded. The defendant had no right to claim that any particular juror should be impaneled in the jury which was to try him for this offense. All that he was entitled to was that the jury impaneled, and each and every one of them should be fair and impartial.

Upon an examination of the record presented upon these appeals, it will appear that to nine of the jurors no challenge was interposed, or, if such challenge had been interposed, it was withdrawn; that, as to two of the jurors, although the appellant’s challenge was overruled, no exception was taken to such ruling; and that as to one juror only was an exception taken to the overruling of the challenge. Upon reading the examination of this juror, it will be seen that he was entirely competent, and that the decision of the court in overruling the challenge was not erroneous.

It is also to be observed that at the time of the impaneling of this juror, and at the time of the evidence of the jury, the appellant had, through the courtesy of the district attorney, a peremptory challenge which he never availed himself of. It is apparent, therefore, that in the opinion of the defendant’s counsel this juror was one who was entirely competent to sit upon the trial of the issues raised ,tiy .the indictment and plea. This being the state of the record it is apparent that no just complaint can be urged in respect to the fairness and impartiality of the jury.

! The record contains many exceptions to the admission of. evidence as to the doings and sayings of many of the persons concerned in the transactions testified to upon this trial, which rulings were claimed to be justified upon the ground that if the jury found a conspiracy between these parties to bring about a given result by unlawful means, the evidence of the doings and sayings of each one of the conspirators was competent against each and all of them.

It was contended, upon the part of the defendant, that as he had not been charged in the indictment with a conspiracy, but with a felony, that he was being tried for a misdemeanor and convicted of a felony. It will be seen that this objection has no weight because the defendant was not being tried for a conspiracy. He was being tried for the felony charged in the indictment. And if another or different expression had been used to characterize the combination, confederation or association of these individuals

If the evidence showed a combination confederation or association of these various parties, to effect by unlawful means the object after which they were seeking, this fact rendered the evidence of the doings and sayings of each in the effectuating of that object, competent against everyone of them. It is a familiar rule of law that where two or more parties associate themselves together for a given object, the doings and sayings of each, in the pursuit of that object, are competent evidence against all; and that is the simple rule which was applied in admitting the evidence in the case at bar, of the doings and saying of these various parties, who were charged with having entered into the combination to procure, by unlawful means, the assent of the board of aldermen to the building of the Broadway Surface Railroad.

Confederations of this kind rarely can be proved by direct evidence, but it is necessary to introduce circumstantial evidence from which their existence may be inferred. The books are full of cases in which from the subsequent action of parties, juries are allowed to infer the existence of previous agreements or contracts between them.

In the opinion of Mr. Justice Daniels it is demonstrated, as had already been decided by this court in the case of People v. O’’Neill, that the jury had a right to believe from the testimony of Fullgraff that there had been no agreement to bribe certain members of the board of aldermen in the interests of the Broadway Surface Railroad Company. It is claimed that the evidence of Fullgraff shows that the combination or confederation of the aldermen was for the purpose of extortion, and that, therefore, the force charged in the indictment could not have been used against them by the defendant and his associates. The evidence of Fullgraff shows undoubtedly that the aldermen entering into the combination were anxious for a due consideration, to be ravished of their official virtue, and that no force beyond a money consideration was necessary to accomplish that object. But the offer of the money which was made to the board was a violent assault upon the virtue of those officials which they were not prepared to withstand, and the evidence of which furnished the proof of the force charged in the indictment. There is no evidence that the offer to vote for the Broadway Surface road for a consideration came from the combining aldermen; but the proof showed that the offer was made to them and accepted by them.

The testimony of Fullgraff and the corroborating cir

Upon an examination of the record it will be seen that the persons most deeply interested in the success of the Broadway Surface road, were the defendant and the Broadway and Seventh Avenue Railroad Company. It appears that the executive officers of that company feared a rival upon Broadway, and that the defendant evidently expected to realize large sums out of the success of the undertaking. The Broadway and Seventh Avenue Company not only preserved its existing lines from a dangerous rival, but it would appear that they actually realized from the enterprise additional gains, as upon the completion of the work the defendant transferred to the president of such railroad, in trust for the company, almost all the stock of the Broadway Surface Railroad Company. The defendant also secured large sums out of the undertaking, because it appears that he received all the bonds issued by the Broadway Surface Railroad Company amounting to two and a half millions, and no expenditure appears which exceeds much more than a million.

Having our attention, therefore, necessarily directed to those most largely interested as being the probable guilty parties in this arrangement, the evidence adduced tends strongly to confirm the suspicions thus aroused.

The defendant was a director, Mr. Foshay the president and Mr. Kerr the treasurer of the Broadway and Seventh Avenue Railroad Company, and such president and treasurer seem to have been the executive officers of the company, and to have attended almost exclusively to the management of its affairs.

Immediately after the passage of the railroad act of 1884, we find the defendant, Mr. Foshay and Mr. Kerr engaged in the organization of the Broadway Surface Railroad Company, of which company four of the directors of the Broadway and Seventh Avenue Company were incorporated, and of which company the directors were the friends, relations, attorneys and counsel of the defendant, and the Broadway and Seventh Avenue Company, none of whom (except, perhaps, Mr. Richmond) appear to have made any payment upon the stock subscribed for by them.

Traffic arrangements were at once entered into between these companies, although it was apparent that a long period of time must elapse before the right to build the

The broker to whom the negotiation was confided told them that if he had a little time, he would undoubtedly be able to sell those bonds at par, but their impatience was so great that the securities were sold at a discount of about fifteen per cent, although the stock of the company was selling in the market at 160, and although there was no pressing need for any money to be used in the manner contemplated in the resolution authorizing the issuance of these bonds, as appears from the fact that no money was actually used for any of those purposes until a year after-wards, and then all of the money so used was derived from other sources. When the purchasers of the bonds came to pay for the same, the extraordinary requirement was made that they should be paid for in large bills, or if checks were received, they were immediately turned into bills of a similar denomination and not deposited. In this way, on the fourth of August, all the bonds had been disposed of and $500,000 in bills realized upon the sale of securities amounting at par to $575,000. No entries of this cash on hand.

On the eighteenth of August the resolution of the board of aldermen, giving its consent to the construction of the road, was vetoed by the mayor. On the evening of this day, according to the testimony of Mr. Powell, he met the defendant at the Fifth Avenue Hotel, and in response to an inquiry as to what he was going to do, the defendant told him that he had the. board of aldermen fixed, or words to that effect. It is true, that upon previous examinations Mr. Powell made use of different expressions, but the purport of the whole of his testimony has always been that the defendant told him that it had been arranged to pass the resolution over the veto of the mayor. Before the time arrived at which the aldermen could act upon this veto, an injunction against the board of aldermen was procured. The counsel for the Broadway Surface Railroad Company intervened actively in the settlement of this litigation and

In June, 1885, the rignt to construct the road having been fully acquired, the road was built. About the same time the Broadway Surface Railroad Company authorized the issuance of $1,000,000 of bonds in addition to those already issued, to be secured by a second mortgage on the property of the company, $450,000 to be applied to the purchase of the stage lines, with their stages, horses, harnesses, etc., and the balance of the bonds, $550,000, to be used and applied in furtherance of the construction, completion, finishing, equipment and operation of the road.

At a subsequent meeting of the board of directors these bonds, together with the first mortgage bonds and stock mentioned in the contract with the defendant, were directed to be delivered to him, he to complete in his own name the purchase of the said stage fines.

In this month an attempt was made to account on the books of the Broadway ana Seventh Avenue Company for the $500,000 raised upon the sale of their bonds. For this purpose vouchers were handed by Mr. Foshay to the bookkeeper to make the entries, two of which were signed by the defendant, amounting to $302,633.32, $230,000 of which being apparently for money paid to the defendant for horses, harness and other equipments; $7,633.32 for the construction of additional sidings, etc., and $75,000 for seventy-five cars, to be delivered. The sum of $148,866.68 was also charged as having been paid for legal expenses, and $2,500 for the servicés of a civil engineer. By his contract with the Broadway Surface Company, the defendant was to pay these legal expenses out of the proceeds of the bonds of that company, and there was no legal obligation

From these circumstances, the conclusion is inevitably forced upon us that the whole of those entries were made for the purpose of covering up the disposition that was made of the $500,000 realized upon the sale of the bonds of the Broadway and Seventh Avenue Company, and that the necessity for the making of such fictitious entries arose from the fact that the defendant had made some unlawful disposition of the money which he admits having received.

The story told by the defendant before the senate investigating committee is evidently entirely without foundation. It is incredible that a man should within two or three days receive in payment of moneys claimed to have been disbursed by him about $400,000, and so soon lose all memory as to its disposition, and we find it impossible to believe that Mr. Foshay, having on hand in cash a large, sum of money belonging to the Broadway and Seventh Avenue Railroad Company, if this evidence is true, ever requested the defendant to make these disbursements on behalf of that Company out of his own money, repaying the amounts almost immediately in bills.

That there was an unlawful use of money in connection with this enterprise was established to the satisfaction of the jury by the evidence of Mr. Fullgraff and the circumstances corroborating such testimony and as we have seen that in view of the suspicious circumstances attending the raising of the $500,000 upon the bonds of the Broadway

This review of the prominent facts shows conclusively that the proposition urged by the defendant’s counsel that there was no evidence connecting the defendant with the criminal combination of certain members of the board of aldermen, is unfounded, There is to be found in the record a large amount of evidence which confirms the conclusions above-stated, but which it has been impossible to state within the limits of this concurring opinion as we have been necessarily confined therein to the more salient features of the evidence.

The objection to the admissibility of the testimony of Mr. Pottle as to the interview between the defendant and himself at the Delavan House, in 1883, was strongly urged upon the court. That this testimony was properly received for the purpose of showing the intense interest which the defendant had in the enterprise of building a Broadway surface railroad has been demonstrated by Mr. Justice Daniels in his learned opinion.

There seems, however, to be another ground upon which the admission of this testimony may be defended. The defense throughout the trial of this cause, insisted that even if the jury should find that money was paid to Fullgraff by those interested in the enterprise, there was no evidence from which a corrupt purpose might be inferred. That as the money was paid after the services had been rendered, and as Fullgraff had publicly declared his intention to vote for the measure, the jury could not find that it had been paid in pursuance of any previous agreement made for the purpose of influencing the action of the aldermen, but was given as a gratuity. To rebut this proposition and to establish the intent with which the defendant acted in his payments of money to public officials, the prosecution had the right to show other acts of the defendant done by him in furtherance of this same general scheme, which were inconsistent with an innocent intent.

It is true that it would not have been competent to prove corrupt attempts upon the part of the defendant in furtherance of other enterprises, but the evidence offered related exclusively to a measure necessary to the success of this

In his opinion Mr. Justice Daniels has conclusively shown that the objection to the admission of the evidence of the defendant taken before the senate committee is entirely without foundation, but there are one or two additional considerations to which it may be proper to call attention.

By article 15, section 2, of the constitution, it is provided that any person who shall offer or promise a bribe to an officer, if it shall be received, shall be deemed guilty of a felony and liable to punishment, except as herein provided.

Then follows a provision that no person offering a bribe shall, upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto, and that he shall not be hable to civil or criminal prosecution therefor if he shall testify to the giving or offering of such bribe.

By this provision the privilege of, refusing to answer is taken from a witness only when called upon to testify in relation to the offering and acceptance of a bribe upon the prosecution of the official bribed, and then only if he has testified to the giving or offering such bribe. A witness is, therefore, privileged from answering any question which may tend to criminate himself in any proceeding of any nature, unless he is called upon to testify in a proceeding relating to the prosecution of an officer for receiving a bribe, and he has testified to the giving or offering such bribe, and unless he so testifies upon such a prosecution, he is hable to punishment if he has been guilty of the offense of offering a bribe.

This being a constitutional provision, even if the legislature attempted to extend the exemption by making it apply to other or different proceedings, such legislation would be null and void as in contravention of the organic law of the land.

It is apparent, however, that the legislature in framing the seventy-ninth section of the Penal Code was simply attempting to carry out these provisions of the constitution, and that the exceptions inserted in that section were not

The words trial, hearing, proceeding or investigation, evidently were all intended to refer to judicial proceedings.

A trial of a person indicted, a hearing before a committing magistrate, a proceeding or investigation before a grand jury preparatory to an indictment are ah proceedings judicial in their character and directed against some particular person or persons. If there were any doubt as to this being the proper construction to be put upon this word “investigation,” it seems to be entirely removed when we consider the sense in which it has been employed in section 4 of the article of the constitution above referred to.

Section 4 provides that “any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to his knowledge shall be removed from office by the governor after due notice and an opportunity of being heard in his defense. The expenses which shall be incurred by the county in investigating and prosecuting any charge of bribery, or attempting to bribe any person holding office under the laws of this state within such county shall be a charge upon the state,” etc.

This last clause is used in direct connection with that relating to the dereliction in duty of district attorneys, and evidently relates to investigations and prosecutions conducted by the district attorney who is the only person authorized by law to represent the county in investigations and prosecutions carried on on behalf of the county, and which can only be conducted by means of proceedings before grand juries or committing magistrates. It was this class of investigations, recognized and designated by the constitution, which the legislature had in mind in framing the provisions of the Penal Code, and which were enacted to carry into effect the requirements of the constitution, and the exemptions contained in section 79 of the Penal Code were not intended to, and do not apply to any other or different proceedings.

Whatever doubts may have existed at the time of the argument as to some of the points raised upon these appeals, they have been entirely dissipated by an examination of the record, and the jury having before them the strong chain of circumstantial evidence presented by this record were justified if they gave any credence to the testimony of Fullgraff that the aldermen had been actually bribed, in coming to the conclusion at which they arrived.

The judgment and orders appealed from should be affirmed.

The prosecution, in order to make manifest the charge that the implicated aldermen had combined to vote for the consent given to the Broadway Surface Road, for a compensation in money, which was furnished by the defendant, or through his instrumentality, with guilty knowledge, proved numerous facts and circumstances after the examination of one of the combination, some of which were also designed to corroborate his statement, weakened as it was by his confession, that he had on the same subject ■committed willful and deliberate perjury. The defendant complains of this mode of procedure, and save the assertion that his privileges and the protection afforded by the constitution were invaded and violated, it forms the chief feature of his appeal.

Justice Daniels has discussed these points, as well as others, and disposed of them on principle and authority adversely to the defendant, and the other members of the court concur in the views expressed by him. It may not be improper to add that the various acts, circumstances, incidents and events arrayed by the people in relation to the combination and the defendant’s participation in the scheme it embraced, were clearly admissible as indicated by the text books and authorities illustrative of the different elements which may be employed to establish the commission of such offenses. In all accusations, therefore, of persons who must act in concert to accomplish the- object in view, whatever is done by either in furtherance of it, and indeed whatever is done by either after the illegal act is performed tending to prove the criminal compact, its consummation, is admissible. And as such unions are secretly formed, for obvious reasons it follows that they may not be shown to have existed except by proof of facts and circumstances, which isolated, would seem of little value— indeed insignificant—but which when grouped, present an imposing demonstration'.

The rules of evidence as a consequence necessarily expand to receive such proof, and therefore even remote acts and incidents, whether directly or collaterally affecting the question, but which tend to establish the imputed crime, are admissible, and the consideration of the subject by numerous tribunals has led to the adoption of rules in accordance with the views thus expressed.

The prosecution have resorted herein to such evidence, not only to show the unlawful combination, hut to establish the guilt of the defendant and hence a multitude of facts and circumstances which, though when separately considered, are seemingly unimportant become momentous, when connected with others, the whole forming a compact mass—a legal mosaic, impressive, commanding, convincing.

I agree with the other members of the court in their concurrence in the opinion of Mr. Justice Daniels. I think the evidence for the prosecution required the submission of the case to the jury, and that the trial was conducted without any error detrimental to the rights of the defendant.