People v. McLaughlin

We have arrived at the conclusion, upon the appeal from the order denying the application to remove the indictment and action to another county for trial, and vacating the order staying the trial, that such order appealed from was erroneous, and should be reversed, but that such order was not void for want of jurisdiction to make it. When that order was made, the proceeding for a removal was terminated, and there was no longer any stay of the trial. So long as such order remained in force and unreversed, it was, therefore, binding upon the court of oyer and terminer, and that court had the power to proceed with the trial. The objectión, therefore, taken at the commencement of this trial, that the court had no jurisdiction to proceed, on thé ground that the order vacating the order staying the trial' was void, and that the order staying the trial was still in force, was not well taken, and was properly overruled. Such ruling was not erroneous. The want of jurisdiction in the court of oyer and terminer to proceed with the trial was the only ground suggested why the trial should not. proceed, aside from the engagements of counsel, which were fully provided for by the court. There was

Many exceptions were taken by the defendant, on the trial, to the allowance or disallowance of challenges to jurors who were called and examined. The questions raised by these challenges are classified by defendant’s counsel under three heads, those relating to jnrors (1) who were rejected because of alleged lack of intelligence and qualifications under the statute; (2) who were accepted, and who participated in the verdict, and- are claimed to have been biased and disqualified; (3) who were accepted, though claimed to have been biased and disqualified, and whom the defendant was compelled to challenge peremptorily.

We cannot say that there was any error made by the learned trial court in rejecting the first class of jurors, upon the ground of lack of intelligence required by section 1079, Code Civ. Proc. That section provides that, in order to be qualified to serve as a trial juror in the city of New York, a person must be intelligent. No particular degree of intelligence is or could be prescribed. It is always desirable that the trial jury in a criminal case should be composed of men of intelligence sufficient to understand and appreciate, and to dispose properly of, the particular case on trial. The grade of intelligence, to comply fairly with this requirement, must necessarily be different in different cases. It could not be the same in all cases. A plain, simple case, involving no complicated questions of fact, and no intricate questions of law, would not call for the same degree of intelligence as a case in which the questions of fact were considerably involved, and the questions of law were difficult to appreciate and understand. Whether, in any case, persons called and examined as jurors are so intelligent as to meet this requirement of the statute must therefore necessarily be determined by the trial court, and must rest in the good judgment aud sound discretion of the trial judge. It must be determined, from the evidence given.by the jurors themselves, the manner in which they answer the questions put to them, their 'demeanor while under examination, their appreciation and understanding of the language used in the questions put to them,- and their appreciation of the questions of fact and principles of law to which their attention is called. The jurors are in the presence of the trial judge. They are not before the appellate court. And where confidence is reposed in the trial judge, and in his honesty, good judgment, and sound discretion, as it is here, we cannot well say that his decision in rejecting the jurors on the ground of lack of intelligence was erroneous, so as to call for a reversal of the judgment.

The second and third classes of jurors were held to be competent under section 376, Code Or. Proc. They had formed opinions or impressions with reference to the guilt or innocence of the defendant ; but they declared unequivocally that they believed such opinions or impressions would not influence their verdict, and that

The intention of the legislature in enacting this statute was to enable the parties to select a jury composed of intelligent men, men who read and think, and form opinions and impressions, and express them, rather than one composed of men who are ignorant, who do not read or think, or have ideas with reference to things transpiring in the community. In People v. McGonegal 136 N. Y. 62 ; 48 St. Rep. 900 , Maynard, J., said:

“ This-statute proceeds upon the reasonable theory that the existence of an opinion as to the subject of the investigation is not inconsistent with the attitude of an impartial seeker after truth. It recognizes, what an intelligent observation confirms, that it is safer to trust a man who keeps himself informed as to the current events of the community in which he lives, and has views and opinions of his own with respect to their import, than it is to rely upon the judgment of one who takes no interest in such matters or does not have sufficient intellectual activity or vigor to form an opinion in regard to them when they are brought to his attention.”

The legislature, at the same time, surrounded persons charged with ci’ime with adequate safeguards to protect them against biased or prejudiced jurors. One ground of challenge provided for by section 376, Code Or. Proc., is:

It will be seen that a juror must, under oath, declare his belief, as prescribed by the statute, and beyond that the court must be satisfied. If satisfied, in the exercise of a sound discretion, that the jurors cannot try the case impartially and without prejudice, the challenge must be sustained, under the first part of the subdivision; and, unless satisfied that the juror does not entertain such present opinion or impression as would influence his verdict, the challenge must be sustained under the last part *f the subdivision. In People v. McQuade, 110 N.Y. 300 ; 18 St. Rep. 288 , Andrews, J., said:

“ There has been no change in the fundamental rule that an accused persons is to be tried by a fair and impartial jury. Formerly the fact that a juror had formed and expressed an opinion touching the guilt or innocence of a person accused of crime was, in law, a disqualification; and, although he expressed an opinion that he could hear and decide the case upon 'the evidence produced, this did not render him competent. * * * Now, as formerly, an existing opinion, by a person called as a juror, of the guilt or innocence of the defendant charged with crime, is, prima facie, a disqualification ; but it is not now, as before, a conclusive objection, provided the jnror makes the declaration specified, and the court, as judge of the fact, is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. It does not satisfy the requirement if the declaration is qualified or conditional. It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement, if, on construing the whole declaration together, it is apparent the ]uror is not able to express an absolute belief that his opinion will not influence his verdict.”

In People v. McGonegal, 136 N. Y. 62 ; 48 St. Rep. 900 , the jurors had unequivocally declared their belief, as required by the statute, and the court held that the remaining question as to the qualification of the juror under this statute were questions of fact, and the decision of such questions was not reviewable on appeal, under section 455, Code Or. Proc.

All the jurors in these two classes unequivocally declared their belief, as required by this statute, and- the only questions remaining are whether the trial judge properly decided that he was satisfied that the jurors could try the case, impartially and without

It is claimed that the fifth count of the indictment under which the trial was had, resulting in the conviction of the defendant, contained no allegations as to the time when and the place where the crime was alleged to have been committed. We do not regard this claim as well founded. The allegations of time and place in the other counts of the indictment were so far made a ■part of the fifth count that it may be said the fifth count did contain such necessary allegations; and the election made by the district attorney to proceed alone under the fifth count did not so far take the other counts out of the indictment as to, leave no allegation of time and place in the fifth count. The allegations of time and place in the other counts in the indictment were referred to in the fifth count, and thereby became a part of that count. It appears, from the record, that, at the opening of this trial, the district attorney elected to proceed upon the fifth count of the indictment only, and the court permitted the other four counts of the indictment to stand only for the purposes of reference. It was mecessary that these questions should be settled at the opening of the trial, in order that the parties might understand their rights in reference to peremptory challenges in the selection of the jurors.

As we have already stated, the threat in this case was claimed' to have been made, not by the defendant himself, but by his wardman,- Burns. The prosecution undertook to charge the defendant with responsibility for this threat by showing the existence of a general scheme by which, within the precinct over which-the defendant was in command, Burns should act as defendant’s agent in making threats for the purpose of extortion, and thus to-bring the defendant within • the .provisions of section 29 of the-Penal Code, which provides that:

_ “A person concerned in the commission of a crime, whether he directly does the act constituting the offense, or aids and abets in its commission and whether present or absent, and a person who-directly or indirectly counsels, commands or procures another to-commit a crime, is a principal.'.’

In this state the law previously existing in cases of felony has-been so changed that one who formerly would have been ah accessory before the fact is now a principal, and a person charged in an indictment with the commission of a felony may be convicted upon proof that, although absent when the crime was committed, he advised and procured its commission ; and it is not necessary to set out in the indictment the facts showing the crime was committed through the agency of another, but a conviction may be-had under an indictment charging merely that the defendant himself committed the crime for which the conviction is sought. People v. Bliven, 112 N. Y. 79 ; 20 St. Rep. 486 ; People v. McKane, 143 N. Y. 455 -465; 62 St. Rep. 829 .

For the purpose of proving the general scheme claimed to have existed, and the agency of Burns for the defendant in pursuance thereof, and in the commission of this offense, the people were permitted to give evidence of various transactions occurring, before the time of the alleged commission of this crime, during the years; 1888, 1889, 1890, and 1891, wherein it was claimed Burns acted as the agent, and under the counsel, command, and procurement, of the defendant, in extorting money from Seagrist and others by means of threats to do unlawful injury to their property. There was a transaction with Seagrist in August, 1888, and another in May, 1889; one with Chelsey in February, 1890; and one with Galligan in November, 1891; and there were conversations between Seagrist and the defendant during these years tending to show Barns’ agency for the defendant in these transactions. All this evidence was given by the prosecution for the sole purpose of establishing criminal agency, and the learned trial court in its-charge explicitly limited the effect to be given to the evidene to-this purpose. This evidence was objected to by the defendant on the ground that it was incompetent to prove the commission of other prior offenses by the defendant for the purpose of establishing his guilt, of the crime for which he was being tried.

It is undoubtedly true that proof may not be given of the guilt of the defendant of other crimes for the purpose of raising the-presumption that he committed the crime for which he is being"

“ In order to prove the defendant’s guilt, it is not permitted to show his former character, or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question. Evidence, however, which is relevant to the issue, by tending, for example, directly to explain or characterize the act which is in question on a criminal trial, has never been held incompetent, because it also tended to, or did, prove the defendant guilty of another crime. The evidence in- question, we think, comes under this latter rule. It was received by the learned trial judge upon the question of the intention and deliberation of the defendant in firing the shot at the deceased. Upon the grounds stated and for the purpose mentioned, we are clear that the evidence as to repeating was admissible, and the exception thereto was without merit.”

In the McKane Case, O’Brien, J., said:

“ The prosecution attempted to show a criminal conspiracy or scheme in which many officials were engaged for the purpose of casting a large fraudulent vote at the election, and that the concealment of the registry list from the public prior to the election was or became a necessary part of the scheme. The inquiry necessarily took a very wide range. The evidence received could not have been admitted to show that the defendant might have been guilty of some other offense or wrongdoing not charged in the indictment; but, if it had a bearing upon the issue involved in the trial, it could not be excluded merely because it tended to justify such an inference.”

The evidence here was not given for the purpose of raising a presumption that the defendant committed this crime because he had before this been guilty of other crimes of a like nature. The prosecution sought to prove such agency of Burns. They could not be expected tp do this by direct evidence. They must prove it, if at all, by circumstantial evidence; and this might properly be done by giving any proof that tended to' establish such criminal agency, notwithstanding the evidence given also tended to prove

There were some exceptions taken to particular items of this •class of evidence, and to the instructions of the court to the jury with reference thereto; but we do not regard them as meritorious. We are of opinion that this class of evidence was properly received upon the trial.

It is claimed that the admission of the entry, in Seagrist’s books, under date of November 21, 1891, was erroneous. The -entry was made by Seagrist in his books on the day he paid the money,—the $50 referred to in the indictment. The entry reads as follows:

“Nov. 21, 1891, material paid to McLaughlin for protection, per Sergt. Burns, ordinance officer, $50.”

It appeared, on the trial, that, when Seagrist was before the grand jury, he testified that he paid the $50 to the defendant himself. He had with him, then, a .copy of an entry in his book, made for him by a young man in his employ. This copy was put in evidence, but was subsequently stricken out, and was not before the jury. After the indictment was found, and before the trials were had, and in April, 1895, Seagrist examined the entry in the book itself; and then he testified on the last trial that he ■could not remember whether he paid the money to the defendant -or to Burns. He recollected that he paid to tlié one or the other, but he could not remember which. He said, also, that he could only state the date of .the payment by looking at the entry in the

“A witness may examine a memorandum or entry made by himself at the time of the occurrence for the purpose of refreshing his recollection. If it does not refresh his recollection, if his recollection is not clarified by the entry, but he states that he made the entry or memorandum at the time, and made it truly, and made it in his own handwriting, then the memorandum is bodily admissible as evidence in chief.”

The whole entry was read to the jury. The learned trial judge, in his charge to the jury, commented upon this entry, and its effect as evidence, as follows:

“ How, on the question of payment of the money, Seagrist says, in this particular instance, that he paid the $50 to one or the other, to Burns or to the defendant. He also tells us that, when he was before the grand jury, he testified that he paid it to the defendant personally, and that he then believed that testimony to be true. He adds, however, that subsequently, upon looking at his book, he found the entry therein in his own handwriting, on the very day of the payment, and that this entry caused him to hesitate in giving effect to the expression of his recollection. In other words, he said, in substance, 11 recollected, when I testified before the grand jury, what I then testified to; but I am unwilling now, in view of that entry, positively to swear that the money was paid personally to the defendant, and I give the defendant the benefit of the doubt created by the enfry.’ * "* * If the criminal concert of action between these parties is made out, then, whether Seagrist’s recollection as to the payment to the defendant personally is at fault, or not, makes no difference. If he paid it to the ■defendant personally, the fact is there. If he did not pay it to the defendant personally, but paid it to Burns, then, if the criminal concert is made out, the law says the payment to Burns was the payment to the defendant. * * * It is for you to say, however, whether the expression of doubt thus caused does or does not tend to show that the witness was conscientious; for, after all, gentlemen, the entry had not refreshed his recollection, as he admits, but rather clouded it. However, the entry was admitted as independent evidence, and it is before you as such. I therefore leave it to you to say whether an entry made in a man’s books at the time, in the manner, and under the circumstances that this was made, is or is not more satisfactory than human recollection. 1 leave that to you. The entry was not a memorandum made upon a slip of paper, or in a diary, but was carefully made in the witness’ books of account. Entries precede and entries follow it.

At the close o£ the charge, the defendant, among other things, said:

“ I also except to each and every part of the instructions as to the question of payment of money. * * * I want to except to that part of the charge in which you instruct the jury as to the entries in Seagrist’s book, and as to how it affected Seagrist; also, to each and every statement in the charge, separately, respecting Seagrist’s testimony on that point. * * * I also except to that, part of the charge in which you state, in substance, that the entry-in Seagrist’s book is evidence, and in which you leave it to the jury to say whether the entry in Seagrist’s book is not more satisfactory than human recollection, and to each and every instruction about such entry, and in regard to the entry being evidence for any purpose.”

We have thus given a very full statement of the facts relating to this entry, its offer, and its reception in evidence, the objections made to it, and the instructions by the court to the jury with reference thereto. The rule of law ,was correctly stated by the learned trial, judge in his decision admitting the entry in evidence. Under this rule, we are entirely satisfied it was competent evidence in the case as to the date when the money was paid and the person to whom it was paid. It cannot be denied that it was material to show the date and the particular person to whom the monev was paid. Neither of these facts could be remembered by the witness after looking at the entry. The entry was evidence tending to show that the date was November 21, 1891, and that the person to whom the money was paid was Burns. There seems to be no real doubt as to what the entry means, to wit, that the money was paid to the defendant through or by the. hand of Burns. The prosecution was not precluded, by the doubt expressed by Seagrist as to the meaning of the entry, from having the entry itself in the case and before the jury." He was evidently willing to be in doubt, for the benefit of the defendant, to aid him in his defense. But the prosecution was under no obligation to sympathize with him in that regard. Its duty was to prove the defendant’s guilt if it could, and it had the legal right

It is said, however, that a conviction could be had, as the case stood, only upon the theory of a payment to Burns, because Sea-grist having failed to testify that it was paid to the defendant personally, being unable to remember that fact, there was no evidence upon which a payment directly to him could be found. The prosecution must, therefore, rest the case upon proof of a payment to Burns, and to him alone. That is true. The defendant had asked Seagrist if -he remembered that he paid the money to Burns and if he would swear to it; and he replied, “ Mo; he could not swear to it, because he did not remember that he did.” In this condition of the evidence, it is beyond question that it was material and necessary that proof should be given as to the person to whom it was paid, and that Burns was such person. The entry stated this fact. Seagrist did not and could not remember this fact after examining the entry. The entry itself was, therefore, clearly competent, as tending to prove this fact The prosecution had no other way of proving it, in view of the want of memory of Seagrist. It was peculiarly a matter of necessity to have this evidence, within all the authorities permitting this class of evidence.to be given.

It is said, however, that the entry contained other matters which were prejudicial to the defendant, that the fact was stated that the payment was “ for protection,” and that there was a criminal agency; Burns receiving the money for the defendant for such protection. Mo such question as this was raised, or in any way suggested on the trial. It has evidently occurred to the defense since the trial was closed. The purpose for which the prosecution offered the entry was to fix. the date and the person to whom the money was paid. If there had been any suggestion on the part of the defense that portions of the entry were objectionable, the 'court could have provided that only such portions of it as were proper should be read or submitted to the jury, and the balance could have been withheld from them. Mor was the learned trial justice requested in any way to protect the defendant by instructing the jury as to the particular use that should be made of the entry as evidence, and that they should regard it for

Daring the examination of Seagrist as a witness, it appeared that, while before the grand jury, he had a copy of a portion of the entry we have just considered, the part reading: “November 21, 1891, material paid to McLaughlin. $50.” -On the trial, Seagrist said, at first, that he had a copy of the entry in his books, without stating what it was ; and yet he testified before the grand jury that he paid the money to the defendant personally. In order to avoid the inference that might be drawn that he had a copy of the full entry referring to "Burns at the time he testified before the grand jury, the prosecution asked the defense to concede that it was not a full copy of the entry, and that it had in it no reference to Burns; that they did not desire any concession as to what it did contain, but simply as to what it did not contain. The defense refused to make any concessions, and the prosecution then offered in evidence the papel’ itself, for the sole purpose of avoiding any inference that Seagrist had a copy of the whole entry when he testified, before the grand jury, that he paid the money to the defendant personally. The court at first received the paper in evidence, and a little later struck it out, and instructed the jury to disregard it. " There may well be doubt as to whether the first ruling of the learned trial judge admitting the paper in evidence was erroneous, under the circumstances. But, even if it was, we think the error was cured, so that no injury could have resulted to the defendant from the admission of the paper in evidence, and thereafter striking it out. In Lindsay v. People, 67 Barb. 548 ; affimed, 63 N. Y. 143 , evidence was received, and afterwards stricken out, and the jury were instructed to disregard it. The general term held that the evidence was talcen out of the case, and the exception with it. The case was-affirmed by the general term and by the court of appeals, and the defendant was executed. Certainly, no injury co.uld have resulted in this case to the defendant, because the full entry, of which this was a part was properly received in evidence, and considered by the jury.

It is claimed that the defendant was improperly convicted, under the evidence, of the crime of extortion; that if guilty of any crime-it was the crime of bribery; and that the trial court improperly

“The prosecution has to prove the threat. It is of minor eon-sequence what was actually done. The question is not whether the threat was executed, — whether, for instance, the boards that were placed upon the barrels, to prevent people from being injured as they passed, were actually kicked down or not. Of course such acts might aggravate the threat, and prove that it was seriously intended; but what the law requires is the threat itself, not necessarily, the execution of it. And that view of the matter renders the testimony of Connelly really somewhat unimportant against the main question as to whether there was a threat. He testified that certain acts were done. The main question is. was there a threat to do an unlawful injury to Seagrist’s property? As to that, Mr. Seagrist gives evidence in this language, speaking of the interview he had with Burns (I am speaking now entirely of the threat charged in the indictment): ‘He [Burns] said I must come down and see the captain and not go ahead with the work until I had. Q. What did he say about not going ahead ? A. That I should not go ahead with the work. Q. Until what? A. Until I bad been down to the captain’s office.’ Nothing there, gentlemen, about corporation ordinances. If that testimony is true, the threat was that Seagrist should not do any work at all until he had seen the captain. Now, if you believe that testimony, it is a

The defendant excepted to these portions of the charge generally, and requested the court to charge that the tearing, down of the building in question was not lawful without a permit in writing from the department of public works, and that there was no •competent evidence in the case that Seagrist had any such permit -as to this building. The court so charged, adding: “ It is immaSerial, though.” The defendant then excepted generally, without specifying that his exception was to the latter remark by the learned trial judge. The court had already charged the jury that, if there was only a threat to enforce the laws and ordinances, in case he violated any of them while taking down the building, or if the fear of Seagrist was that the defendant would enforce such laws and ordinances, the defendant could not be convicted; that the enforcement of such laws and ordinances, against Seagrist could not be an unlawful injury to his property, though it interfered with his work; that the receipt of the money by defendant as a consideration for not enforcing such law and ordinances could not justify the conviction of the defendant for extortion; and if what the defendant did was as captain of the police, and under pretense or color of official authority, he could not be convicted. It is true that a threat by the defendant to do a lawful act as captain of the police force, unless money was paid to him, would not constitute extortion. The failure to perform a legal duty, in consideration of the receipt of money, would be bribery. Under the ordinances of the city of New York, it was the duty of the defendant, as captain of police, and of the men under him, to keep Seagrist and his men from obstructing the sidewalks or streets, unless he had a written permit from the proper department to do so. It did not appear in the case that Seagrist had no such written permit, or that, in tearing down the building, he was, as matter of fact, engaged in any unlawful business. There was no proof that Burns required him to discontinue tearing down the building for any such reason. The case was submitted to the jury upon the question of the threat, as testified to by Seagrist, that he must proceed with the word at all until he had seen th§

Very many other exceptions appear in the record, which is quite voluminous, and which we have examined and considered, but , which we do not deem it necessary to refer to in detail here. ¡They are not of sufficient merit to require a reversal of the judgment. It seems to us that the defendant was proven, beyond any reasonable doubt, to have been guilty of the crime of extortion charged in the indictment, and that the judgment should be affirmed.

All concur.