People v. O'Neil — 14 N.Y. St. Rep. 829

Majority

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The People of the State of New York, Resp’t, v. John O’Neil, App’lt.^[1]

(Court of Appeals,

Filed April 10, 1888.)

Headnote

1. Criminal law—Bribery—Penal code § 72 repealed. § 100 of the. charter of New York city of 1873.

Section 100 of the charter of New York city of 1873. in force prior to December 1,1882, being the bribery section of the charter was repealed by the taking effect on that day of the Penal Code, so far as it was in conflict with any of the provisions of section 72 of Penal Code.

2. Same—Penal code § 72 not an ex post facto law.

Section 72 of the Penal Code was in no sense an ex post facto law. It-was a law governing future cases only.

3. Same—Selection of jury—Examination of juror—Code Grim. Pro. § 376.

In selecting the jury in this case, the district-attorney challenged each juror in general terms, without the assignment of special grounds of challenge. The juror was thereafter questioned by the district-attorney and the defendant. In the examination by the district-attorney, each juror was informed in substance, that the people proposed to examine, as witnesses. two members of the board of aldermen of 1884, who had turned state’s evidence, and who, it was supposed, would testify that they were engaged with the defendant in the transaction out of which the indictment arose and was then asked in substance, whether he had such a prejudice against persons so testifying, as would prevent his giving their testimony such weight as it might be entitled to in law. Held, that the range of examination on such a challenge must largely rest in the discretion of the court. That it was competent to permit the district-attorney to make the assumption stated in his question to the juror, and to follow it by the direct inquiry as to his state of mind in respect to witnesses in the situation of accomplices, with a view to ascertaining whether he would he a fair and unprejudiced juror for the people. That this was fairly an examination, bearing upon the impartiality of the juror in reference to the case within Code Criminal Procedure, § 376. People v. Carpenter, 1 N. Y. State Rep., 648, distinguished.

4. Same—Evidence—Testimony of witness who has committed perjury ON A PRIOR OCCASION—COMPETENT—PENAL CODE § 714.

The testimony of a witness who has committed perjury in the same matter on a prior occasion, whether the perjury is established by a conviction or by his confession, or is found by the jury must 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 jurisdiction to grant new trials in cases of verdicts against evidence. Following People v. Pun, 29 N. Y., 629 .

5. Statutes—Part of statute being unconstitutional—Effect of.

It is not the rule that the whole statute fails because one part is unconstitutional and void, unless the void part is so interwoven with the valid part that the parts cannot be separated and the valid part sustained by itself, without defeating the intention of the legislature, leaving the statute in a form which, as an independent enactment, it can be inferred the legislature would not have passed.

6. Same—Laws 1882, chap. 410, § 2143 constitutional.

Section 2143, of chapter 410, Laws of 1882, which declared in substance that the Penal Code, for the purpose of construing the eflect of the two

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acts, should he deemed the later enactment, is germain to the title of the act, and does not introduce a new subject not within the purview of the act. It is constitutional within article 3, section 16, of the constitution.

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the court of oyer and terminer convicting the defendant of the crime of bribery.

Roger M. Sherman, Peter Mitchell and Charles W. Brooke, for app’lt; McKenzie Semple, assistant district-attorney, for resp’ts.

In the case of The People v. Jaehne ( 103 N. Y., 182 ; 3 N. Y. State Rep., 11), it was held that the crime of bribery committed by a member of the-common council of the city of New York, subsequent to December 1, 1882, was punishable under section 72 of the Penal Code. This construction necessarily involved the conclusion that section 100 of the charter of 1873, in force prior to December 1, 1882, being the bribery section of the charter, was repealed by the taking effect on that day of the Penal Code, so far as it was in conflict with any of the provisions of section 72. That section increased the punishment for bribery beyond that prescribed by the charter of 1873, and could therefore only operate upon the crime of bribery committed by a member of the common council after the Penal Code took effect. Section 72 is not retrospective in its terms, and according to settled principles, is to be construed as prospective only. If á case should arise wffiere the bribery charged was committed while section 100 of the charter of 1873 was in force, it would be necessary to consider whether such cases were reserved from the operation of the Penal Code. The alternative conclusion would be that the legislature in repealing section 100 of the charter, by the enactment of the Penal Code, had inadvertently omitted to except from the operation of the repealing statute, cases of bribery committed by municipal officers in New Y ark prior to its enactment.

It will be time enough to consider the application and effect of the Penal Code upon such cases when occasion arises. Whatever conclusion might .be reached' on this point, section 72 of the Penal Code was in no sense an ex post facto law. It was a law governing future cases only, and even if it purported to enact a rule applicable to past as well as future transactions, it would be void as to the former only. The cases are distinctly separable, and it is not the rule that the whole statute falls because one part is unconstitutional and void, unless the void part is so interwoven with the valid part that the parts cannot be separated and the valid part sustained by itself, without defeat

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ing the intention of the legislature, leaving the statute in a form which as an independent enactment it can be inferred the legislature would not have passed.

The difficult question in the Jaehne Case was as to the effect of the consolidation act, which took effect March 1, 1883, after the enactment of the Penal Code. The Penal Code, as was held, repealed section 100 of the charter of 1873, and section 72, became the law for the punishment, of bribery as well in the city of New York as elsewhere in the state.

But section 100 was re-enacted as section 58 of the consolidation act._ The question was whether the section of the consolidation act, a later enactment than the Penal Code, did not restore the definition and punishment of bribery, as declared originally in section 100 of the charter of 1873, and in turn repeal section 72 of the Penal Code, as applied to the city of New York, as the Penal Code had repealed the provision in the charter of 1873. The court decided that this result was prevented by section 2143 of the consolidation act, which declared in substance that the Penal Code, for the purpose of construing the effect of the two acts, should be deemed the later enactment.

The supposed incongruity of inserting in .the consolidation act section 58, and then at the same moment making it subject to the Penal Code, thereby superseding it, is more apparent than real. The consolidation act was primarily designed to bring together the local laws relating to the city of New York, the crimes provisions as well as others, but to avoid conflict with the Penal Code, the crimes provisions in the consolidation act were in effect subordinated to the provisions of the Penal Code. It was a precautionary policy, and relieved the authors of the consolidation act and the legislature from the necessity of a careful comparison of the provisions of the two statutes, to ascertain whether they were in any respect in conflict.

The suggestion that section 2143 is in violation of section. 16, article 3, of the constitution, is without force. The section is germain to the title of the act, and is not the introduction of a new subject, not within the purview of the act.

We perceive no reason in the new suggestions of counsel for changing our conclusion in the Jaehne Case on the principal point there considered.

There are many questions which, have been presented on the argument here in" behalf of the appellant, arising on exceptions on the trial. They have been very fully considered in the able opinion of Judge Vast Brunt (10 N. Y. State Rep., 1).

We concur in the conclusions of the general term, and

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shall confine ourselves to a brief reference to some of the questions pressed on our attention. The practice followed in selecting the jury seems to have been that each juror, when called, was challenged by the district attorney in general terms, without the .assignment of special grounds of challenge, and the juror was thereupon questioned by the district attorney and afterwards by the counsel for the defendant. In the case of the examination by the district attorney each juror was informed, in substance, that the people proposed to examine as witnesses two • members of the board of aldermen of 1884, who had turned state’s evidence, and who it was supposed would testify that they engaged with the defendant in the transaction out of which the indictment arose, and was then asked, in substance, whether he had such a prejudice against persons so testifying as would prevent his giving their testimony such weight as it might be entitled to in law. The defendant’s counsel objected to the question as improper, irrelevant and-immaterial. The court overruled the objection, and the defendant’s counsel excepted, and the juror was permitted to answer.

Section 376 of the Code of Criminal Procedure defines as one ground of challenge to a juror, “the existence of a state of mind on the part of the juror in reference to the case or to either party, as satisfies the court in the exercise of a sound discretion that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

The range of examination on such a challenge must largely rest in the discretion of the court, and we think it was competent to permit the district attorney to make the assumption stated in his question to the juror and to follow it by the direct inquiry as to his state of mind in respect to witnesses in the situation of accomplices, with a view of ascertaining whether he would be a fair and unprejudiced juror for the people. This was fairly an examination bearing upon the impartiality of the juror “in reference to the case,” within section 376.

A somewhat similar question was considered by this court in People v. Carpenter ( 102 N. Y., 239 , 1 N. Y. State Rep., 648). But we think the record shows that the defendant accepted the jurors to whom the question was put, who participated in the verdict, and consented to their sitting. The court was not called upon to decide the chai-, lenge in any case except one, and in that case the defendant’s counsel at the conclusion of the examination said, “ we leave the decision of the challenge with your honor.” The court thereupon overruled the challenge. No exception was taken, and the juror took his seat. In all the

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other cases, at the conclusion of the examination, the juror took his seat without objection and apparently with the acquiescence of both sides. Moreover, when the panel was full, the defendant’s counsel objected to the district attorney being permitted to exercise the right of peremptory challenge, on the ground that the jurors[1] *' having been permitted to take their seats in the box without objection,” the right of peremptory challenge was waived. It is quite clear that the jury selected was satisfactory to the defendant, and that his counsel consented that the persons sworn should act. In the only case where the court ruled upon the competency of the juror, counsel left it to the court to decide, taking no exception. The exceptions taken on the trial to the testimony of the witnesses, Waite and Alexander, were, we think, frivolous. All that was substantial or material in their evidence was proved without objection. Whether Waite visited the office of the Broadway Surface Railroad Company “frequently” during the summer of 1884, was of no importance, in view of the unchallenged evidence of his intimacy and interviews with the officers of the road during the period in question, and his testimony, given without objection, that he had been in the office of the company. The court confined his testimony in respect •to Maloney to what Maloney did in pursuance of the agreement in which the defendant was shown to have participated. This was competent, and if the evidence went beyond this, it is sufficient to say that it was not objected to. The objection to the question put to the witness Alexander, “with whom, personally, did you negotiate the settlement of the Lyddy suit,” was after he had testified without objection to the fact that he had negotiated the settlement with the plaintiff or his attorney, and after it had been proven that the suit had been settled. The question objected to was under these circumstances unobjectionable.

The court properly admitted the evidence of the acts and proceedings of the board of aldermen, in which the defendant participated subsequent to August 30, 1884, and the testimony of the witness Metz as to the meetings at McLaughlin’s house. They threw light upon the prior conduct of the defendant, and tended to confirm the evidence of the accomplices and to show that the'defendant’s vote on the 30th of August, was in fulfillment of the corrupt agreement charged in the indictment.

It was not legal error to overrule the question put to the defendant, as to his object and purpose in voting against the rescission of the grant of August 30, 1884. He was permitted to state the reasons which induced him to vote

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in favor of granting the franchise, and this was the material point. It would not have strengthened his position toi have allowed him to show that his subsequent action in voting against the revocation of the grant was innocent also. Presumably the same motives governed his action in both cases.

The refusal of the court to charge that if the jury should, find that the witnesses Fullgraff and Duffy had in the testimony before the senate committee, in respect to the same matters, committed willful perjury, the jury should wholly disregard their testimony given on the trial, raises a question which prior to the enactment of section 714, of the Penal Code, was open to doubt under the decisions in this state.

The cases were fully reviewed in Deering v. Metcalf ( 74 N. Y., 501 ), and the question was again referred to m the recent case of People v. Petmecky ( 99 N. Y., 421 ). Under the Revised Statutes (2 Rev. Stat., 681), a person convicted of perjury was not permitted to be a witness in any cause or matter until his conviction was reversed. While this, statute was in force, there was much reason certainly m the construction that where a witness, by his own confession on the stand, in presence of the jury, admitted that he had willfully perjured himself on a former occasion in respect to the same matter, his testimony ought to be wholly disregarded to the same extent as though his perjury had been judicially established by conviction. But now, by section 714 of the Penal Code, no conviction for crime disqualifies a witness, and the section expressly makes a person convicted of crime, not excepting perjury a competent witness in any cause or proceeding, civil or criminal, but allows the conviction to be proved for the purpose of affecting the weight of his testimony. It would be manifestly absurd in the light of this statute now to hold that an unconvicted perjurer was an incompetent witness, whose evidence could not be considered by the jury, when under the statute, if he had been convicted, his evidence must be received and weighed by the jury.

In view of the present statute, whatever doubts may have heretofore existed, the true rule is that stated by Judge Denio in Dun v. People ( 29 N. Y., 529 ). and which was followed on the trial of this case, that the testimony of a witness who has committed perjury in the same matter on a prior occasion, whether the perjury is established by a conviction or by his confession, or is found by the jury, i-must 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-

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against evidence.” The request to charge was, therefore properly denied.

The point that the testimony of the accomplices, Fulgraff and Duffy was uncorroborated by “such other evidence as tends to connect the defendant with the commission of the crime,’- as required by section 397 of the Penal Code, is fully answered by our decision in the Jaehne case. Proof of the corpus delicti was in this case the same thing as proof of the defendant’s connection with the crime. The one could not exist without the other. There was evidence, we think, in the testimony, of the defendant’s connection with the transactions under investigation, corroborative of the story of the accomplices. The fact that Katie Metz did not recognize the defendant in the elevator, was properly left to the jury upon the question of her credibility, and there was no error in the refusal of the court to charge upon that subject in the language used by the defendant’s counsel.

There are some other questions, but it is unnecessary specially to refer to them.

We find no error in the record, and the judgment should, therefore, be affirmed.

All concur.