People v. Sharp

The indictment was found October 19, 1886. In substance it accuses Jacob Sharp and six other persons of giving and offering and causing to' be given and offered to one Fullgraff, a member of the common council of the city of New York, twenty thousand dollars, with intent to influence him in respect to the exercise of his powers and functions as such member of the common council upon the application of The Broadway Surface Railway Company for the consent of the common council to the construction -of a street railway. Sharp was tried separately. Direct evidence was given from which a jury might find that Fullgraff had in fact been bribed, and other evidence altogether of a circumstantial character and by no means conclusive, but sufficient, as the jury had said by their verdict, to warrant a finding that Sharp was concerned in the commission of the crime, and therefore guilty of the offense charged. Exceptions were taken in behalf of the defendant to several decisions of the trial court in admitting against his objection certain items of testimony which it is conceded were material, and without which it is claimed by the appellant a conviction, could not. or might not have been obtained.

First. Among others, the counsel for the prosecution pi’oved that the defendant was examined as a witness before a committee of the senate of this state, appointed to investigate among other things, the methods of the Broadway Railway Company iu obtaining such consent, and also the action in respect thereto of the board of aldermen of said city, which granted, or of any member thereof, who voted for the same and that he upon that occasion gave testimony which the learned counsel for the prosecution claimed to be “ irrefutable evidence of his participation and complicity in the commission of the crime.” This testimony the prosecutor offered in evidence. It was conceded by the prosecution that at the time he testified the defendant was before that committee under the operation and compulsion of a subpoena duly issued by the committee and that the testimony he gave was in response to questions propounded in their behalf. Its admission on the trial was objected to on the ground that it was given under privileged circumstances; that the defendant was compelled to attend

The question before the jury was whether the defendant had committed the crime of bribery as alleged in the indictment, and as that offiense is declared by section 78 of the Penal Code, under which the indictment was found. This section forms part of title 8, which relates to crimes against public justice, and of chapter 1 of that title concerning bribery and corruption. It is preceded by other provisions concerning bribery as (sec. 44) of an executive officer (sec. 66), of members of the legislature (sec. 71), of a judicial officer (sec. 72), of such an officer accepting a bribe (sec. 74), of a juror, and embracing all these as well as the provisions of section 78, section 79 declares that, (1) a person offending against any provision of any foregoing section 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. (2) “But,” it declares, “the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.” (3) A person so testifying to the giving of a bribe which has been accepted shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and may plead or prove the giving of the testimony accordingly in bar of such an indictment or prosecution.”

By a subsequent section (section 712 of the Penal Code) these provisions are so modified as not to permit such evidence being proved against the witness upon any charge of perjury committed on such examination.

The first question upon this appeal is as to the meaning and spirit of the statute contained in this section (sec. 79). The appellant contends that by it the disclosures made by him before the senate committee were privileged and could not be used against him on the trial now under review, and one of the learned counsel for the people concedes that this force might be attributed to the statute if it were wholly valid enactment (as he contends it was not), and if the evidence given before the committee had not been entirely free and voluntary (as he contends it was). These propositions lie at the bottom of the controversy.

First. Is the indictment va?V / The learned counsel for the people contrasts the constitutional provision: “ That no person shall be compelled in any criminal case to be a witness against himself” (article 1, § 6), with the compulsory words of section 79, already quoted, and pronounces one to be “the direct opposite of the other,” and as we under

It should be borne in mind that the sole object of the introduction of the defendant’s testimony was to prove from it that he was guilty of giving the bribe which, as the evidence tended to show, Fullgraff accepted, and the giving of which was the sole accusation against the defendant. If then the case is within the terms of the section, as upon this point, it is assumed to be, the immunity offered by it distinguishes the statutory provision from the constitutional inhibition, inasmuch as it indemnifies or protects the witness against the consequences of his testimony. To that effect is the decision of the court of appeals in the case of People ex rel. Hackley v. Kelly ( 24 N. Y., 74 .) The court there had under review an order adjudging the relator Hackley guilty of contempt in refusing to answer, before the grand jury, questions quite similar in substance to those propounded to Sharp by the senate committee. The complaint under examination was against certain aldermen and members of the common council of the city of New York for receiving a gift of money under the agreement, that their votes should be influenced thereby in a matter pending before them in their official capacity, and Hackley, as a witness, was asked as to the disposition made by him of a certain pile of bills received from one H., and said to amount to $50,000. Hackley asserted his privilege at common law and under the constitution, and demurred to the question. The court of sessions adjudged him guilty of contempt for refusing to answer and ordered him to be imprisoned. The supreme court affirmed the order, and the court of appeals affirmed the decision.

The principal question discussed by this court was whether the relator could lawfully refuse to answer the' interrogatory, and in reaching its conclusion, the court examined the provisions of chapter 539, of the Laws of 1853, entitled“ An act to amend the existing law relating to bribery, ” and also chapter 446 of the Laws of 1857, amending the charter of the city of New York. Both acts relate to bribery. We shall again refer to them, and it is suffi

The learned counsel for the people also argues that the statutory protection afforded by section 79 does not go far enough; that the indemnity it offers to the accused witness is partial and not complete; that while it may save him from the penitentiary by excluding his evidence, it does not prevent the infamy and disgrace of its exposure.

This argument is also met by the opinion in the Hackley Case (supra). It was there argued for the relator that he was not wholly protected; that his testimony might disclose facts and circumstances which, being thus ascertained, might be proved against him by other testimony than his sworn evidence. But the answer of the court covered not only that supposed case, but the objection that the disgrace of exposure would still remain, although the evidence was' not used “that,” said the court, “is the misfortune of his condition, and not any want of humanity in the law.” “ If a witness,” said Judge Denio ( 24 N. Y., 83 ), “if a witness object to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission on his own trial would tend to prove him guilty of a criminal offense,” adding, “if the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged.” The conclusion of the court was that the relator was not exempt from testifying, and it follows from the decision then rendered that the provision of the Code which embodies the same conditions as those then under consideration, is is no sense repugnant to the constitution.

Second. Was the testimony of Sharp given of his own will, or by compulsion ? He would, as the prosecution concedes, have testified against himself if as a witness on his trial he had sworn as he did before the committee; but he was not sworn upon his trial, and this fact they say left him to the operation of the common law rule, where his admis

“To say,” continues the counsel, “to say that Mr. • Sharp was a witness, implies a court or magistrate authorized to administer the oath and take the evidence,” and his claim is that Sharp was “under no compulsion of law to. be present at this inquisition to take an oath or to testify.” In the view of the learned counsel for the prosecution, and as characterized by him, “the sittings of the committee were merely meetings of private persons, among whom was-Mr. Sharp.” “There were,” he says, “conversational questions and answers in which he (Sharp) took a part by answering interrogations .addressed to him,” and the-contention of the learned counsel follows, “that” (Sharp’s) “ statements on that occasion may be used in any proceeding to which he is a party.” If the premises were true, this, construction might, in ordinary cases, follow. But if they are correct, the courts below seem to have misconceived the situation in which Sharp was placed, for we cannot find in the voluminous record before us any suggestion that the senate had not full power to take cognizance of and to inc quire through its committee into the alleged abuses of public power and the corruption of public officers, nor that such proceedings in the present case, having in view the possible-necessity of an alteration in the existing law, were not in every respect valid and legal. Nor are we left to this negative evidence that such question was not raised upon the trial. It appears by the concession there made and already quoted, that upon objection being made to the introduction of Sharp’s testimony on the ground that his statements before the committee were privileged—made under compulsion of a subpoena—and the constraint of an oath duly administered by the committee, who confined his evidence to such questions as the committee chose to ask, the prosecution made the admission already set out, but required the resolution under which the committee assumed to act to be put in evidence and be connected with, the admission. That being done, the prosecution went into evidence of the acts of Sharp, to show that he waived his privilege before the committee by not asserting it in no manner questioning the due appointment of the committee nor it powers.

In view of these facts, it is too late to raise the question, here. Mqreover the decision in the case of the People ex

The case on which the learned counsel for the people now places his argument (Kilbourn v. Thompson, 103 U. S., 176 ) was cited in favor of the prisoner, fully commented upon by the court, and shown to have no application. The action of congress reviewed in that case was in substance a creditor’s bill, or effort to impeach a transaction already closed between the United States and one of its debtors. The supreme court of the United States held that as to it congress had no judicial power, and exceeded its authority in the attempted investigation. The McDonald Case, on the contrary, reviewed a proceeding which was necessary or appropriate to enable the legislature to perform its functions, and it was held to be no objection that it partook in some degree of a judicial character. That case brought up proceedings on all substantial points, like the resolutions which were at the bottom of the inquiry before the senate committee in this case, and its decision makes any further discussion of their validity quite unnecessary. It follows that the investigation before the committee was not beyond its powers nor were the resolutions under which they acted void, or without legal significance or force. As therefore it cannot be said that the committee was without power to compel the witness and require his testimony, the respondents must find elsewhere reasons, if there are any, in support of the proposition that the evidence was by a willing witness. To that end it is further said in behalf of the people that Sharp by not asserting his privilege before the committee waived it. But if the case comes within the purview of section 19 (supra) of that act, the senate subpoena and the resolution of the senate were compulsory, and it was not necessary for the protection of the witness that he should either by .deed or word. set. either at defiance or

In the Hackley Case (supra), the witness did not plead •his privilege, but it was of no avail because he was obliged by law to answer the inquiries, and the law was held imperative and sufficient, although the case was one within the very terms of the constitution, because by the same law he was protected against the consequences of his admissions. Whether he asserted his privilege or whether he was silent -and submissive to the laws could make no difference. The Legislature, for reasons of public interest, required a discovery of the whole truth as to matters involved in their inquiry, and one answering in compliance with their command cannot be deemed a willing or consenting person within the meaning of the maxim “ volenti non fit injuria,” on which respondent relies. A person who yields from the necessity of obedience cannot be said to have the power of acting by his own choice. And where the law says he shall be compelled to attend and shall be compelled to testify, acquiescence is not election and he is not one of whom it can be said, he receives no injury from that to which he willingly and knowingly agrees and consents. There can be no violation where there is neither power to refuse or opportunity to elect. Under such circumstances the witness must be deemed to speak for the safety of his person and in view of the indemnity which the law promises. A man is none the less robbed, because yielding to irresistible power, he makes no resistence, and a witness who gives up his secret at the command of the law is as much under compulsion as if he ventured on the punishment that would follow on his refusing to disclose it. In the Hackley Case there was the plea of privilege, but it availed nothing because the law required an answer. The position of the witness was in no respect changed by the pleas. In the Keeler Case (supra), there was refusal to answer under the advice of counsel but it availed nothing. It seems to us that the evidence of Sharp before the committee was given under the penalty of commitment and imprisonment for contempt, and consequently that it was obtained from him by compulsion. To refuse to attend the committee or testify, would, moreover, have rendered the witness guilty of a misdemeanor (sections 63, 69 of the Penal Code.) So far, we have assumed the case to be within the provisions of section 79 of the Penal Code (supra),

It was held in People v. Keeler (supra), that the senate-might proceed in its own way in the collection of such information as might seem important in the proper discharge-of its functions; and whenever it was deemed necessary to examine witnesses, the power and authority to do so might, properly be referred to a committee with such powers as might appear to be necessary or expedient in the case, and. that notwithstanding the vesting of a ¡judicial power in the-courts, certain powers in their nature judicial belong to the-legislature and might be delegated to a committee authorized to take testimony and summon witnesses, and that a refusal to appear and testify before such committee, or tofiroduce books-or papers, would be a contempt of the house, t was also held, that when institutions or public officers-were ordered to be investigated, it is to be presumed that such an investigation is with a view to some legislative action in regard to them, and moreover, that the terms of the resolution directing, it may be looked, at to ascertain, the legislative intent. The resolutions which led to the-examination of Sharp were passed January 26, 1886. They were preceded by a reference to the provisions of the constitution and statutes relating to street railroads and the-prohibition against such road without “the consent thereto-of the local authorities having control of the street upon, which it was proposed to ” construct the road, and a reference to the charges, that consent to the railroad upon. Broadway, “was obtained through fraud and by an A through corrupt influence and bribery of such5authorities,” viz., the aldermen of the city of New York, and a recital that a strong and reputable sentiment in that city demands-at the hands of the senate “ an investigation of the methods-in obtaining such consent.” It was for these reasons resolved by the senate that its railroad committee be authorized “to investigate fully all matters relating to the-methods of the Broadway Surface Railroad Company, or of any other person or corporation relating to, or in obtaining such consent, and also to investigate fully the action of the board of aldermen of said city, which granted or gave the. same in respect thereto, or of any member thereof who-voted for the same in respect thereto.”

The committee were given full power to prosecute, such, investigation in such directions as it thought necessary, as.

A report was required, with recommendations, and particularly as to the policy of an amendment to the constitution vesting the power to grant such consent in some other authority than as at present provided.”

It is apparent from their terms that the resolutions which permitted the examination of Sharp involved an inquiry which the legislature had a right to make and' which in view of the recitals in the resolution it was its duty to make, in order that the abuses, which were disclosed, might be cured by further action by the legislature or by the people. The inquiry was judicial in its nature, was to be pursued for a lawful end and by means as comprehensive and sufficient as could be provided. The occasion and the action of the legislature meet every suggestion of the court in the case last cited as to the expression of legislative intent and the imposition of the duty of obedience upon all _ persons who should be summoned to make by their testimony the investigation serve the ends of public justice. We have seen that there is no conflict between the will of the legislature as expressed in section 79 and "the constitution, and we are not to construe that section in accordance with the legislative intent. In its exposition full effect is to be given to that intention and if possible full force and validity to every word, so that no part be annulled or rendered nugatory. It cannot be doubted that the case is brought literally within the language of the section 79 (supra). Sharp was a person offending against the specific provisions of the Code in relation to .bribery. He was accused and has been convicted of giving a bribe. He was, therefore, qualified under that section (79), as a “competent witness.” Against whom ? Why against another person “so offending,” that is, another person offending against any of those provisions of the Code, “relating to bribery.” Efe was in fact a witness before the committee in relation to bribery. Was he a witness against another person ? The resolution recites as the immediate cause of the action of the senate, the alleged bribery of certain “ local authorities consenting to the railway,” and then to make the accusation specific as to the person, says: “The local authority” referred to, as the authority which consented, “was the aldermen of said city.” There was then another person offending. Sharp was by the statute-made com-etent as .a witness as to the subject-mat

It follows that if we adhere to the ordinary and natural meaning of these words and apply them to the case in hand, we shall find neither inconsistency nor incongruity, but complete adaption. The senate was dealing with the charge made against the aldermen of the city, that their consent was obtained by and through certain methods, and, among others, bribery; it admitted that an investigation of those methods was demanded; therefore, the senate, authorized its committee “ to fully investigate” all matters relating to those methods, and also to investigate fully not only the action of the board of aldermen which granted or gave such consent, but also that of any member of the board,. with full power and authority, “ to prosecute its investiga-' tians in any and all directions in its judgment necessary to a full and complete report to the senate as to all matters relating to the granting of such consent and the influences and inducements which led thereto,” and gave to the committee full power and authority to send for persons and papers to hold its sessions in New York and conduct its “ investigations ” there. Clearly there is to be an investigation in the language of section 79 of a charge of bribery of a public officer, with an intent to influence him in the exercise of his powers. The committee were to ascertain through testifying persons and papers whether the charge was well or ill founded. Whoever gave evidence before them attended upon an investigation and testified, and unless we greatly confine and limit the meaning which the word used by the legislature usually expresses, it is impossible to say that the case is not within the statute.

.. It is claimed, however, by the learned counsel for the people that the “investigation” in the mind of the legislature did not include an investigation directed by itself and conducted through its committee, but only an “investigation ” in the course of a criminal prosecution, and upon that construction the judgment of the court below was put. It

Therefore, it must include, if taken literally, the action of a legislative committee according to the direction given it, and acting with authority to subpoena witnesses and enforce their attendance and examine them upon oath. Nor is it any answer to this conclusion to say that only a judicial investigation was intended. If we are right in the views above expressed, the legislature possessed and might delegate to its committee any power short of final judicial action which they thought necessary in any particular case, and although the investigation was only for the collection of information required for the proper performance by the legislature of its own functions, it might, nevertheless, be a proceeding requiring witnesses and power to compel their attendance. It is, moreover, assumed and claimed by the prosecution that the privilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct, is the same in such an examination as when sworn in court. If that be so, it affords a sufficient reason for including a legislative investigation among the proceedings in which persons otherwise privileged should be compelled to testify. Public policy might often require the fullest disclosure, and the very case before the legislature was an instance in which that policy might be defeated if the utmost latitude was not permitted, and the greatest freedom of examination to ascertain the truth of the public charge that a great and valuable franchise had been obtained through corruption and bribery of public officials. In re. Falvey ( 7 Wis., 630 ), it appeared that in pursuance of a resolution of the legislature of Wisconsin, not unlike that before us, having for its object the investigation of frauds, bribery and corrupt acts charged to have been perpetrated by inducing the legislature to grant certain lands, and the investigation of cases of alleged bribery on the part of railroad officials and others in procuring the grant, a committee was appointed with powers similar to those conferred by the resolution before us. One Falvey was subpoenaed before the committe, but-

In 1853 (Laws 1853, chap. 217, § 14), by the act amending the charter of the city of New York, and above cited, a penalty was imposed for bribing any member of the common council, or other officers of that corporation, and it was provided that every person offending in that respect should be a competent witness against any other person offending in the same transaction, and might be compelled to appear and give evidence before any grand jury, or in any court, in the same manner as other persons, but declared that “the testimony so given should not be used in any prosecution, civil or criminal, against the person so testifying ” In the same year (Laws of 1853, chap. 539) the provisions of the Revised Statutes (ante) were amended and added to; other officials were enumerated as the subjects of bribery, and among them “any member of the common council or corporation of any city,” and any person offending against either of the provisions of the preceding sections, was declared to be a competent witness against any other person so offending, and might be compelled to appear and give evidence before any magistrate or grand jury, or in any court in the same manner as other persons, but it is provided that testimony so given should not .be used in any prosecution or proceeding, civil or criminal, against the person so testifying.”

The act of 1857 (sec. 52, supra) is confined to the city of New York, and relates only to • bribes offered or given to members of its common council or officers of the corporation, makes every person offending against any of the provisions of

In 1869 (Laws of 1869, chap. 742) an act was framed for “the more effectual suppression and punishment of bribery.” It authorized certain actions in favor of parties injured, and by section 8 provides as follows: “No person shall be excused from testifying on any examination or trial for any offense specified in this act, or the trial of any •action authorized by this act, or any investigation by any •committee of the legislature, or either house thereof, into the conduct of any member thereof, or on the trial of any •civil action for slander or libel, or any criminal action for libel, where such alleged slander or libel imputes bribery, or any offense mentioned in this act or on the trial or examination of any charge of perjury, committed in evidence .given upon any such trial or investigation on the ground that his testimony will tend to disgrace him or render him infamous, or will tend to convict him of a criminal offense, •or render him liable to be proceeded against therefor. But the testimony given by such witness on such trial or investigation shall not be used against him on the trial of any action, civil or criminal, against him, and nothing herein shall be construed as compelling any person to testify in any proceeding or trial in which such person is charged with crime.”

Keeping in mind the compulsory and the protecting parts of the foregoing statutes, we. come to the statute of 1881 (chap. 676), which establishes a Penal Code, and which, so far at least as the crime and proof of bribery is ■concerned, is in part a codification of preceding enactments. So far as the various provisions of these acts ■make the offender a competent witness and relieve him from prosecution, they are formulated in section 79, already ■quoted. Penal Code, § 79. It is apparent from this history of progressive legislation that the word “investigation” cannot be treated as a word of mere amplification to broaden the sense of preceding words, but must be déemed the deliberate expression of an intent on the part of the legislature to bring in a distinct class of cases. Can there •be any doubt as to the meaning of the legislature in the •corresponding clause of preceding statutes? In that of 1853 (chap. 217) requiring the party to give evidence before “any grand jury in any court,” or in chapter 539 of the ¡same year, “before any magistrate, grand jury, or in any court,” or in the act of 1869 (supra), “on any examination -or trial, or any investigation by any committee of the legist lature, or either house thereof, into the conduct of any member thereof.” Each successive statute goes further

But other investigations than those relating to the conduct of its members were frequently entered upon or ordered by the legislature to be made through its committee, in pursuing which testimony from witnesses was required, and we see no reason to doubt that the legislature intended by the provisions of section 79 to cover all such cases, as well as those formerly provided for, when they involve an inquiry into matters relating to bribery as defined by the various sections of the Penal Code, above referred to. The plain object of that statute was to enable these various tribunals, whether magistrates, grand juries, courts or legislature to make their investigations into alleged abuses, effectual, and enable them to prosecute their inquiries successfully, and to that end protedt witnesses whose testimony might otherwise be withheld, but without which the investigation would fail. No reason has been suggested for confining that protection to witnesses other than those who appear upon legislative investigations, and we are not permitted by any rule applicable to the construction . of statutes to give the section in question such limitation as will exclude them. It could only be done by inference and by importing into the statute-words which the legislature did not choose to employ, and which express a meaning very different from the words, actually used.

This we are not at liberty to do. “What else,” asks a learned judge, “is restraining by inference or varying by interpretation, but to a certain extent recasting and remodelling the statute, or in other words, invading the provine» of the legislature itself.” Williams, J., in Garland v. Carlisle, 4 Clark & Fin., 726. It certainly should not b» permitted where the object of the act under examination was to extend the policy of existing statutes to new cases and enlarge, and not restrain its application, nor where the-intention of the legislature is clearly expressed in words,, deliberately chosen, and where a literal construction does; not take them beyond the mischief at which they were-aimed. The case before us is not only within the words,, but within the spirit of the statute and we are unable to-find any doubt or ambiguity in its language which should deprive the defendant of a construction according to the-manifest import of the words actually used.

We have not overlooked the contention of the respond

Second. Another exception brings up the ruling of the-court as to evidence from one Pottle, proving a corrupt proposal by the defendant in 1883. The witness was at the-time engrossing clerk of the assembly, and the defendant desired an alteration of a certain bill then pending before that body, so that its terms might authorize the construction of á railroad on Broadway. For this alteration he proposed to pay the witness $5,000. We are unable to find any ground on which the evidence was admissible. It was-introduced as part of the affirmative case which the prosecution were bound to carry to the jury. Its admission is justified upon this appeal by various propositions presented, by the people.

First. “We suppose,” say the learned counsel, “we suppose that every criminal trial begins with a presumption of innocence in favor of the accused. This presumption musk be founded on the moral rectitude or fear of the law, or both, whichever the person is supposed to possess. The presumption must be overcome before conviction can be had.

The person charged might as well seek to repel the imputation by proof of particular acts performed by him at other periods of his life, and a cause submitted to a jury be made to turn upon the preponderance of proof, on one side of antecedent bad conduct, and proof on the other of virtuous acts. Legally speaking, it would be unsafe to draw a conclusion from either. We are referred to no case holding that upon the trial of an indictment charging a specific crime committed in a specific way, evidence that the accused was of a particular character would be relevant.

These remarks not only answered the respondent’s argument, but point to the danger which might follow from the ■evidence. They were obviously inadequate to prevent it. JSTor does the discrimination between crime proven and a ■conversation, make the evidence less objectionable. As presented to the jury;, it was distinctly a crime committed. The point of inquiry was that, and it was plainly so avowed by the counsel for the people. He brought the witness Pottle and Sharp together; proved by him that he then had the “ General Surface Railroad Act ” in his possession as engrossing clerk; that he had a conversation with Sharp “in relation to the bill;” thát he had a conversation with him “on the subject of the bill including or not including Broadway as one of the streets in the bill.” Then asked, “ Had you any conversation with him as to whether he did or did not desire to have Broadway included as one ■of the streets in the bill.”

The defendant’s counsel objected, but the objection was ■overruled and an exception taken, and the witness replied. “ I did.” He was then asked to state “ all he (Sharp) said on the subject,” and the counsel for the defendant asked ■“to be informed to what point the 'evidence is to be

A careful examination of the evidence given by Pottle authorizes the comment of the appellant’s counsel that “it was not part of the conversation, but that it was the whole.” Unless admissible as proving an attempt to commit a crime, it was wholly immaterial, and as proof of a crime, it was irrelevant and must have been very prejudicial to the defendant. It showed a capacity or willingness to commit bribery in 1883, to induce an act from which Sharp might be benefited as one desiring the construction of the road; but which in fact gave him no advantage over other citizens. It gave him no franchise; but it could not fairly be inferred from such premises that in 1884 he did also bribe a different person for a different purpose. The inference would be purely conjectural. The mental ability and disposition of the defendant to commit a crime of this sort; while it might persuade a jury, raises no legal presumption. It is not moral evidence even. The fact under investigation, in its circumstances, was entirely unlike the fact disclosed by the witness. There is no analogy between them. Yet the inference drawn by the prosecuting officer and per-: mitted by the court, left it for the jury to say that the desire of Sharp, manifested by the offer of a bribe in one instance, was the same desire which led to the actual giving of a bribe in the other, hence that the two crimes had the same origin.

•Evidence of moral character is admitted to disprove the existence of a criminal motive, or to rebut evidence of it, but evidence of a prior crime can have no legitimate place in an investigation as to whether a subsequent crime was committed by the same person.

If it had been proven that Sharp had in fact given the money to Fullgraff, and the question was as to its being an innocent or criminal act, a gift which he had a right to make or which he made corruptly, the fact, if it were a.fact, that

Third. We are also of opinion that there was error in the examination of the witness Miller. He was an alderman at the time of the passage of the resolution, but we do not find he was a party to any agreement concerning its passage. Against the objection of the defendant he was allowed to testify that after the “ consent ” was given, he received from DeLacy $5,000. The district attorney then asked, “you understood, did you not, that you received that money from DeLacy on account of the Broadway Surface Railroad ? ”

A. “No, sir; nothing of the kind.”

A further examination as to the circumstances and time of its receipt followed, and the witness said DeLacy gave me a roll of bills, “ and said there is something to buy election tickets with.”

Asked by the district attorney, “ did you not understand at the time, it was paid on account of the Broadway Railroad Company ? ”

A. “ No, sir: I had no understanding of that kind with him.”

Q. “ What was your understanding at the time 1 ”

A. “There was no particular understanding about it so far as I was concerned; there was nothing said about it.”

Q. “What did you think at the time DeLacy gave it to-you for? ”

The court held this competent.

Witness. “ What did I think?”

District attorney. “ That is the question asked you.”

A. ‘ ‘ About what? ”

District attorney. “As to what DeLacy gave it to you for?”

A. “Well, I had my misgivings.”

District attorney.'“ Tell us what you did think at the-time what he gave it to you for? ”

Witness. “I suppose it was for the Broadway road.”

. It is quite impossible to find any ground on which the-exception taken can be overcome. The transaction was not with Sharp. The question called for no fact, but with frequent iteration for an opinion, a supposition. Its importance in the estimation of the people is manifest from the repeated and persistent attempts to obtain it.

The court below were of opinion that the ruling was erroneous, but that the jury could not have given any effect-whatever to the mere expression of opinion or supposition of a witness, because the whole transaction between DeLacy and the witness was afterwards given. It was, but the narration, also received under an objection, and was excepted to. It certainly did not cure the difficulty. The-question to be settled was whether the money was part of the fruits of a corrupt agreement, whether the transaction was an incident of the scheme with the formation of which the. defendant was charged, whether the alleged fact of' bribery was true, and this, like any other question of fact, was to be settled by evidence.

■ The opinion, the thought, the understanding of the "witness was not evidence. The jury might, however, naturally reason that the conclusion of the witness, drawn from all the facts within his own knowledge, fairly represented the-nature and the extent of the connection between the circumstances to which he testified, and the fraudulent-practices which had preceded it. It was admitted because-thought relevant and material by the prosecuting officer and the court, and whether in any, or in what degree it djd affect the jury cannot be known..- The payment of a. large sum, of money to the witness was a palpable fact. •« Whether jit was paid to him in,.his:.capaeity of" alderman,..

The learned counsel did not stop his examination after proving the receipt of the money, but sought the mental conclusion of the witness as to the consideration of or inducement to the gift, and the answer was accepted by him.

Fourth. ■ The public prosecutor, to make out the case and as part of his evidence in chief, offered to show by a detective officer that he had been employed by the district-attarney to serve subposnas upon Maloney, Keenan and DeLacv, all of whom the district attorney claimed to be material and competent witnesses, and to show further that the detective was unable to find them in this state, but did find Maloney in Canada, and there served him with a subpoena, and learned that the others were in Canada, although he did not see them. These persons were named in the indictment as co-defendants with - Sharp, and the evidence-already in tended to show that some of them, and especially Moloney, were intermediaries between the persons offending against -the provisions of the statutes, relating to bribery, or instruments of whoever committed the act charged.

The evidence was objected to by the defendant’s counsel, but admitted. It was not claimed by the prosecution that-the defendant was privy to their absence or that the object of the proof was to furnish a basis for evidence otherwise-inadmissible. The learned district-attorney disclaimed any intention “of proving the flight of these persons as co-conspirators,” and so make use of their absence as evidence of guilt, or an admission by their conduct that the accusation against them and the defendant was true, but said he offered it only for the purpose of showing that after diligent effort he was unable to procure their attendance as witnesses, and thus enable him to account for their absence. His claim is that they were depositories of the direct proof of the conspiracy which the prosecution were engaged in establishing and accomplices of the defendant

The evidence already in was, so far-as Sharp was concerned, altogether circumstantial, but tended to show that the persons named, .or some of them, were qualified from actual knowledge to ..give .evidence bearing more or less-

It is also said by the district attorney that the defendant upon cross-examination of one of the prosecutor’s witnesses, had shown the absence of one of these persons, and that he was in Canada. The same fact as to all of them seems to have been assumed as if already before the jury. Why then was the evidence insisted upon? In answer to a question from the learned trial judge, whether the defendant would not “have a right to argue to the jury in summing up, that, in view of all the testimony, the people should have called Maloney,” the defendant’s counsel said, “No, sir.” How could we argue that, when we know already from the opening of the district-attorney that Maloney is not accessible to a subpoena, and disclaimed any intention of so doing, or that it “could be done in common fairness,” with such earnestness that it is very difficult to see why the introduction of the evidence was pressed, if no other purpose existed than to escape the imputation of keeping back testimony. Proof even of the absence of these persons was inadmissible. But that was not all; the proof was not only of their absence, but unavailing search by a detective, the service of a subpoena •upon some of' them and the failure to obey its mandate. Under the circumstances of the case, the ruling of the court, in this instance, may not have been of much importance, and upon it alone we should not grant a new trial. But the legal principle which requires relevant and material evidence and admits no other, is important, and however serious the charge against an accused person may be, and however great the evil it uncovers, he cannot properly be made the subject of a judicial sentence, unless the crime is substantiated according to the established rules of evidence. The other exceptions referred to point to violations of those rules, to the manifest prejudice of the defendant and to the benefit of those exceptions he is entitled.

They require a new trial, and that it may be had, the judgment of the court below and the conviction should be reversed and a new trial granted.

All concur.

seems to me that the admission of the evidence given by the witness Pottle was error.

Whether the evidence in any particular case comes writhin the well known exceptions to the general rule is often the difficult question to solve, and not as to what the rule itself really is. Thus there is a class of cases in which evidence is admitted where it is material to show guilty knowledge of the chai’acter of the act committed by the prisoner. A good illustration of this class of cases is in the trial of an indictment for passing counterfeit money. Evidence of the passage of like money within a reasonable time before or after the commission of the offense for which the prisoner is on trial is admitted for the purpose of showing that when he passed the money in question it was not through ignorance of its character. A man might think the money he passed was good and he might be mistaken once or even twice, but the presumption of mistake lessens with every repetition of the act of passing money really counterfeit. Hence evidence of such repetition bears directly and materially upon the issue before the jury. To this same class would belong the case of an indictment for shooting an individual.

For the purpose of proving that the shooting was not accidental where such a fact is claimed, evidence may be given of efforts or even threats made by the defendant to shoot the same individual on prior occasions. Thus the' probability of the shooting being accidental is lessened by showing prior efforts or threats to accomplish the same act for which the prisoner is on trial. Cases of embezzlement and of obtaining money or other property by false pretenses come under the same general rule. A man indicted for the embezzlement of funds by false entries might claim, with some degree of plausibility, perhaps, that the-

Then there is another class of cases in which the facts' show the commission of two crimes and that the individual who committed the other crime, also, committed the one' for which the prisoner is on trial. Evidence is then permitted to show that the person was the person who com-' mitted the other crime, because in so doing under the circumstances and from the connection of the prisoner with the other crime, the evidence of his guilt of such other' crime is direct evidence of his guilt of the crime for which he is on trial.

Another class in which evidence of this nature is admis-' sible is w here it is proper for the purpose of showing a motive for the commission of the main crime.

It is claimed in this case that the evidence was admissible on the ground that it showed or tended to show the' intent on the part of the prisoner in paying the money to; Fullgraff after proof had been received that money was' given him, and also upon the ground that it tended to show the motive of the prisoner for the commission of the crime. If this evidence did materially and directly tend to show either such intent or motive, and if it were not too remote' in point of time, and if it logically connected the fact to be proved with the main transaction, then it may well be¡ that it was admissible, even though it tended to prove the' prisoner guilty of another and separate offense.

The admission of the evidence of Pottle seems to me, however, to carry the principle further and to a much more dangerous extent than any other case that has come under my observation.

Upon the question of the intent with which the money was paid to Fullgraff, the evidence I think falls far short of such logical and close connection therewith, as is necessary to render it admissible. The fact being established that such payment was made and that the prisoner was connected with its payment, the intent could not be a mat-' ter of any real doubt. That it was paid to obtain the vote of Fullgraff as an alderman for granting the franchise to" the Broadway Surface Railroad, could not be made a subject of honest discussion. All the evidence was to that' effect and there was absolutely no evidence to the contrary, and to offer evidence of the commission of another crime for the avowed purpose of thereby showing the intent with which this money was paid to Fulgraff would have made to my mind a clear case of offering it on a colorable issue and using it for another and wholly inadmissible, purpose.

As is very well said by Mr. Justice Agnew in the State v. Lapage ( 57 N. H., 245 at 295), “it should also be remarked that this being a matter of judgment it is quite likely that courts would not all agree, and that some courts might see a logical connection where others could not. But however extreme the case may be, I think it will be found that the courts have always professed to put the admissibility of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other.”

Judge Earl in the case of the People v. Shulman, reported in a note to Mayer v. The People ( 80 N. Y., 364 ), at 375), states as follows: “But there is one general rule which must apply to all such cases. There must be in the transaction thus sought to be proven some relation to or connection with the main transaction. That is, they must show a common motive or intent running through all the transactions, or they must be such as in their nature to show guilty knowledge at the time of the main transaction.” And in the case of Mayer v. The People (supra), which was the case of an indictment for obtaining goods by false pretenses, Rapallo, J., in speaking of the admissibility of testimony of this nature, upon the question of intent said, “that when the representations, their falsity and the knowledge of the accused that they were false is established by competent testimony, the allegations that they wTere made with the intent to defraud may be supported by proof of dealings by the accused with parties other than the complainant which tend to show a fraudulent scheme to obtain property by devices similar to those practiced upon him, provided the dealings are sufficiently connected in point of time and character, to authorize an inference that the purchase* from the complainant was made in pursuance of the same general transaction.”

Under such conditions and guided by such rules it does not seem to me this evidence by Pottle was so connected legitimately with the main transaction, that of the alleged bribery of Fullgraff, as in any way to characterize the intent with which the money was alleged to have been paid Fullgraff, in any other sense than the evidence tends to show capacity on the part of the prisoner to commit the crime because he had months before attempted to commit one of a similar nature with another person, for the purpose of accomplishing another act.

It is a very general and extremely broad, and, I think, a dangerous ground upon which to claim the admissibility of. evidence of this character, to say that it tends to show that

Upon the question of motive, using that word in the sense of a reason why the prisoner should commit the crime, I do not see that it has the least materially or bearing. It shows and tends to show no such reason. It only tends to show that the prisoner took an interest in the inclusion of Broadway in the bill permitting railroad tracks to be laid in the streets of cities. It might be argued, therefore, that he took an interest in or had a desire for a railroad in that street. As a reason or motive for such desire, the evidence in no aspect tends to enlighten us. By the passage of the act of 1883, the prisoner would have no greater right than anyone else to obtain the road. Others could compete for it as well as a corporation in which he was interested. No reason for any interest in this question is shown by this evidence.

It is the simple, bald and naked proposition which the evidence is claimed to prove, viz., the interest of the prisoner, and this interest is to be established by proof of the commission of a crime under the circumstances detailed, and months before the commission of the one charged in the indictment. This cannot, be said to prove or tend to prove a motive for tho commission of the crime in question

One of the cases cited upon this branch of the argument was that of Pierson v. The People ( 79 N. Y., 424 ). There the prisoner was charged with murdering one Withey, who was a married man. The prisoner was also a married man. Evidence had been given of intimate relations, though not necessarily criminal, between the prisoner and Withey’s wife before the death of the deceased. After the murder the prisoner took the widow and sister to the house-of a friend in the evening and came away with the widow late that night alone. A few days after the murder the prisoner disappeared from the neighborhood. It was then proved by a witness from. Michigan, who was a clergyman, that the prisoner and the widow of Withey appeared before him and were married, and that the prisoner declared on oath before him that he knew of no legal obstacle to his marriage with the woman and thereupon he married them. This evidence was objected to on the ground that it had no direct or material bearing upon the main question in the case, and that it simply tended to prejudice the prisoner by proving him guilty of another and separate felony. The" evidence as to the murder was circumstantial, and this court held that the evidence in controversy was proper for the purpose of proving a motive for the murder. In that case the evidence showed a direct and logical connection between the murder of the deceased and its perpetration by the -prisoner. It showed -that the prisoner had a passion for the possession of the wife of the deceased, and that for the purpose of obtaining possession of her person he did commit the crimes of perjury and bigamy, and to accomplish this possession of the woman the taking off of the woman’s husband was an obvious necessity. The motive of the prisoner was the desire for the woman, and the strength of that desire, in other words, the strength of the motive which impelled the murder was shown in this way.

The case of the People v. Wood ( 3 Parker’s Crim. Rep., 681 ), was also cited. That was a special term case, which arose upon an application to the learned justice, who delivered the opinion for a stay of proceedings upon the conviction of the defendant for murder. Evidence had been given of separate and distinct felonies committed by the prisoner for the purpose of showing motive on his part in the killing of the deceased. The learned court held that the evidence was admissible, because it tended to show, with other evidence that the felonies were parts of a single transaction, influenced by a single motive and designed to

Now, the evidence in the case at bar was of no such character. At the time of its alleged occurrence no law had been passed. It did not appear, and could not appear, that at that time any law ever would be passed. It was an act remote in point of time, different in purpose, and of an entirely separate and distinct matter, forming no part of one main transaction, and, to my mind, coming nowhere near the standard for the admissibility of such evideuce pronounced by all the cases which I have been able to find.

The case of Stout v. The People ( 4 Parker’s Crim. Rep., 132 ), contains the same general principles. There evidence was admitted to the effect that the prisoner was seen in bed with the wife of the man he was charged with murdering, although such wife was also the prisoner’s sister, and it was admitted as furnishing a motive for the prisoner to get the husband out of the way.

I have looked at the other cases referred to by the learned counsel for the prosecution, and find that they come under the designation of one or the other of the classes already referred to.

Commonwealth v. Tuckerman ( 10 Gray, 173 , 199), was a case of embezzlement, and evidence of other embezzlements from the same party during a series of years, and contained in a statement made by the prisoner was admitted.

Commonwealth v. McCarthy ( 119 Mass,, 354 ), was an indictment for arson. To prove the intent of the prisoner, evidence was received that on two prior occasions the prisoner had set fire to a shed ten feet distant from the building destroyed and connected therewith with a flight of stairs. This had a direct tendency to prove that the firing was not accidental, but intentional and felonious.

Commonwealth v. Bradford ( 126 Mass., 42 ), was an indictment for arson, and the same class of evidence was received, and for the same purpose. Commonwealth v. Merriam ( 14 Pick., 548 ), was an indictment for adultery. Evidence of improper familiarity between the defendant and the same woman shortly before the act in question was admitted. The evidence was admitted.

The case of the People v. O’Sullivan ( 104 N. Y., 481 ; 5 N. Y. State Rep., 702), forms no precedent for the admission of the evidence in this case. We simply held that upon the trial of the defendant for the crime of rape, it was competent to prove that he had attempted to commit the same crime upon the same woman a short time prior thereto. It was put upon the ground that upon the trial of a person for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too remote, to commit the same offense. It was said further that it would be incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. And it was stated that upon the trial of a prisoner for murder, it is competent to show that he had made previous attempts or threats to kill his victim, and hence upon the same principle it was held that when charged with rape it was competent to show that the defendant had previously declared his intention to commit the offense or.made an unsuccessful attempt to do so.

In the case of Commonwealth v. Abbott ( 130 Mass., 472 ), upon an indictment for murder, proof was offered on the part of the prisoner of former ill-feeling of the husband of the deceased toward the deceased. It was rejected as too remote and disconnected with the crime charged. Particularly as there was evidence of the parties living together on good terms long subsequent to this alleged ill-feeling. This is certainly no precedent for the admission of the evidence in question in the case at bar.

In Commonwealth v. Jackson ( 132 Mass., 16 ) the prisoner was indicted for selling property by false representations under the Massachusetts statute. Evidence of sales of other property of a like nature to other persons under representations proved false was admitted for the purpose of showing the intent with which the representations in question were made. The supreme court of Massachusetts held that the evidence was inadmissible, and that for the error of its admission a new trial should be granted. The case is cited only for the purpose of quoting the opinion of the court upon the danger of this kind of evidence.

writing the opinion, said that “the other statements made by the defendant at other times as to the other animals which he sold might have been false, while those made in the case for which he was tried were not. The transactions form no part of a single scheme or plan any more than the various robberies of a thief. They were entered upon as from time to time he might succeed in entrapping credulous or unwary persons. Even if they were transactions of the same general character, they differed in all their details, and the defendant was compelled to defend himself against three distinct charges in addition to the one for which alone he was indicted. Evidence of the commission of other crimes by a defendant may deeply prejudice him with the jury, while it does not legally bear upon his case. It certainly would not be competent in order to show the intent with which one entered a house or took an article of personal property to prove that he had committed a burglary or larceny at another time.”

He further said in the same case, “the objections to the admission of evidence as to other transactions, whether amounting to indictable crimes or not, are very apparent. Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions creates a prejudice which may cause injustice to be done him.”

I think the remarks are very pertinent in this case. The reasoning herein leads to the exclusion of evidence as to past offenses such as Pottle’s evidence tends to prove, whether it is directed towards proving the bribery of clerks to committees or members of the legislature of 1883 or 1884.

Upon the same basis it is difficult to see the materiality or admissibility of the evidence that the prisoner, after the passage of the act of 1884, paid to Phelps the $50,000, as testified to by Phelps. The evidence it can be seen had a tendency to greatly prejudice the prisoner upon the issue of his guilt of bribing Eullgraff, while wholly inadmissible for any purpose, and it would seem to be quite questionable to admit it for the purpose of proving an interest in a Broadway railroad about which there could be and was no dispute or contradiction. We call attention to the question without absolutely deciding it.

We are quite clear that errors have been committed by the admission of evidence in this case at war with the well-settled law on this subject. That law must protect all who

For the reasons above given, as well as upon the grounds so well stated in the learned opinion by Brother Dan-forth, I am in favor of reversing this conviction and granting a new trial.

All concur.