
    ¡COURT OF GENERIAL SESSIONS—COUNTY OF N. Y.,
    March, 1911.
    THE PEOPLE v. JOSEPH SPIRO.
    (71 Misc. 362.)
    (1) Conspiracy—Criminal liability—Indictment—Sufficiency of the ACCUSATION.
    An indictment which alleges the making by defendant S. of a certain agreement for mutual aid and assistance whenever any of their number should be a defendant in a foreclosure action, in preventing personal service of the summons upon him and in hindering and obstructing the plaintiff in any such action in obtaining such judgment as he might be entitled to, sufficiently alleges a violation of section 580 (6) of the Penal Law which provides that “ if two or more persons conspire * * * to commit any act for the * * * obstruction of justice, or the due administration of the laws, each of them is guilty of a misdemeanor.”
    Demurrer to an indictment.
    
      Taylor & Fatt (Isidore Fatt, of counsel), for defendant,. Spiro.
    
      Charles S. Whitman, district attorney (Joseph Du Vivier, assistant district attorney, of counsel), for the People.
   Crain, J.:

The defendant Spiro demurs to an indictment drawn for the purpose of charging him and his codefendants with a violation of subdivision 6 of section 580 of the Penal Law. This enacts that If two or more persons conspire * * * to commit any act * * * for the * * * obstruction of justice, or of the due administration of the laws. Each of them is guilty of a misdemeanor.” He asserts by his demurrer that it appears •upon the face of the indictment that the facts stated therein do not constitute a crime and that the indictment does not substantially conform to the requirements of sections 275, 276 and. 278 of the Code of ‘Criminal Procedure.

The indictment alleges that, on the 8th day of December, 1908, and at all the times therein mentioned, there were in the county of New York divers pieces of real property incumbered by and subject to the liens of certain mortgages theretofor executed thereupon; that on the date mentioned many of said mortgages were due and payable and many others about to become-due and payable; that actions to foreclose many of such mortgages were then about to be commenced; that on the date mentioned, the defendants, naming them, well knowing the premises, did unlawfully, * * * conspire, * * * illegally and fraudulently, for their own profit and gain, whenever there- . after an action should be commenced to foreclose a mortgage upon real property in the said county and it should appear to them practicable so to do, to prevent the personal service of the summons therein upon that defendant in such action who should be the owner of record of such real property, and to hinder and obstruct the plaintiffs in suich actions and to delay them in obtaining such relief as they should be lawfully entitled to therein, by such dishonest, * * * means, * * * as they should thereafter deem available, to the great and manifest perversion and obstruction of justice and of the due administration of the laws.”

The indictment then alleges, in substance, that certain of the defendants, naming them, “ in pursuance and furtherance of and according to the said conspiracy, * * * and to effect the purposes thereof,” procured certain persons, in the indictment named, to convey to certain of the defendants, in the indictment named, certain pieces of real property, in the indictment described, incumbered by certain mortgages about to be foreclosed, and that the deeds conveying such several pieces of property were recorded in the register’s office of the county of New York at the instance of the defendants.

Thus it will be seen that the indictment alleges the making by Spiro and his codefendants of a certain agreement and the doing by them of certain acts to effect the object of such agreement. The indictment is sufficient if from its allegations it appears that the agreement as therein alleged was one to do an act unlawful, either as a means or as an end, and that some overt act was done by one or more of the defendants to effect the object of such agreement.

The agreement, as alleged in the indictment, was not merely for conformity or similarity of conduct on the part of the defendants. Their agreement, as so alleged, was for mutual aid and assistance, whenever any of their number should be a defendant in a foreclosure action, in preventing personal service of the summons therein on said defendant and in hindering and obstructing the plaintiff therein in obtaining such judgment as he might be entitled to.

The end or object of the agreement, as set forth in the indictment, was unlawful, in that by it, counter to public policy, each defendant bound himself to delay, hinder and obstruct contemplated litigation, regardless of whether he was or was not to become a party to the same. While it is true that obstruction to litigation is not per se unlawful, and that as a consequence a -defendant in a foreclosure action, acting for his own profit and not the injury of another, may, without criminality, for the purpose of securing delay, so comport himself as to force the person suing him to use less speedy process and to proceed by less expeditious methods than such person otherwise might, it is against public policy and, therefore, unlawful for a person, as in the case at bar, to become a party defendánt to an action to obligate himself to third parties that is to say, parties who will not be proper parties defendant in such action to delay, hinder and obstruct the plaintiff therein. This is for the reason, among others, that public policy requires that the course of litigation within legal limits shall rest in the free and uncontrolled will of the parties to the same.

Under the agreement, as set forth in the indictment, one of the defendants becoming a party defendant to the foreclosure action and not wishing to delay the same would find himself constrained to do so at the behest of persons not parties to the same (being the codefendants in the indictment), because he had obligated himself to them in that behalf. While in reality such constraint would not exist, as such an agreement owing to public policy would be unenforceable at the instance of such parties, the fact that it was unenforceable as against public policy would result from the circumstance that it unlawfully tended to the obstruction of justice.

It is, perhaps, also true that the indictment sufficiently alleges the illegality of the means agreed to be used by the defendants to sustain it under the authority of People v. Willis, 158 N. Y. 392, 14 N. Y. Crim. 414.

It follows that, as the indictment sets forth an agreement having an unlawful end or object, to wit, one made criminal by subdivision 6 of section 580 of the Penal Law, it is sufficient and the demurrer must be disallowed.

Demurrer overruled.

NOTE ON CONSPIRACY TO OBSTRUCT JUSTICE.

GENERALLY.

Any combination or conspiracy, having as its purpose the obstruction of the due course of justice or the due administration of the laws, held to be an indictable conspiracy. State v. Ripley, 31 Me. 386.

It is no ground for the postponement of the trial of a charge of conspiracy to institute action that the said action is still pending. People v. Peterson, 60 App. Div. 118, 15 N. Y. Crim. 421.

WHAT ACTS ARE INCLUDED.

It is an offense to induce witnesses to suppress evidence, and to give false evidence. People v. Chase, 16 Barb. 495.

The packing of a jury may be the object of a conspiracy- to obstruct justice and indictable as such. O’Donnell v. People, 41 III. App. 23.

To obtain a fraudulent divorce. Cole v. People, 84 III. 216.

It is an offense to manufacture or fabricate evidence. State v. De Witt, 2 Hill (S. C.) 282.

A conspiracy to pervert legal process may be criminal, though for the purpose only of getting possession of land by means of an extorted deed in favor of the legal owner. State v. Shooter, 8 Rich. (S. C.) 72.

To liberate prisoners. Kipper v. State, 62 S. W. (Tex.) 420.

Or the impeding or obstructing of an officer of the law in the performance and discharge of his duty. State v. Noyse, 25 Vt. 415.

The threatening or intimidation of a revenue officer while searching for an illicit distillery or the preventing him from continuing the discharge of his duty in respect thereto, is a conspiracy to obstruct justice. U. S. v. Johnson, 26 Fed. 682.

A conspiracy to deprive Chinese subjects of their rights under the laws and treaties of the United States held not to be a violation of a statute making it an offense for two or more persons * * * to conspire * * * "to oppose by force a treaty thereof, or by foipe to prevent the execution of any law.of the United States. Baldwin v. Franks, 120 U. S. 678.

The failure of a witness to appear at a trial is an obstruction of justice, and the crime includes a conspiracy to effect such an object. Reg. v. Hampton, 6 Cox. C. C. 167.

To use legal process for the enforcement of a pretended debt. Reg. v. Taylor, 15 Cox. C. C. 265.

INDICTMENT.

Where the conspiracy is to induce a witness to suppress her evidence, the indictment must aver that the conspirators did persuade and induce her to-withdraw herself from the county, etc. People v. Chase, 16 Barb. 495.

An indictment which, after charging a city officer and a private person with entering into a general conspiracy to pervert and obstruct the law, for the purpose of levying tribute upon city contractors, sets out overt acts, specifying in each instance the time and place, the particular contract, and the particular contractor, together with the particular omission or neglect of official duty of the one defendant and the particular acts of the other in furtherance of the conspiracy, charged in general terms, satisfies the requirement of so apprising the defendants of the charge as to enable them to prepare their defense. People v. Willis, 158 N. Y. 392.

In passing upon the sufficiency of an indictment for conspiracy charging a general agreement to pervert and obstruct the due administration of the laws in a certain manner, followed by specific statements of overt acts in furtherance of-the agreement, the general charge and the specific statements of overt acts are to be read together. People v. Willis, 158 N. Y. 392.

An indictment which states a conspiracy for the perversion and obstruction of justice and of the due administration of the laws which alleges an agreement between the defendants that one of them should procure the appointment of another to an office, to- wit, the office of commissioner of public works of the city of New York, and that in consideration of the obtaining of such appointment the defendant who should be appointed commissioner, while apparently carrying out the duties of his office would in effect abdicate it and place his resignation in the hands of said other defendant whenever the same might be demanded, and make no appointments in said office without the approval of the said co-defendant, that he would make such removals therein as that co-defendant might suggest and request, and would transact the business of said office as he might direct, held sufficient. People v. Squire, 8 N. Y. Grim. 262.

An indictment which charges a conspiracy by defendants to procure a complaint to be made against one of their number for keeping a nuisance, and to cause him to be acquitted, but does not charge that they contemplated the use of any improper means to procure the acquittal, or that such defendant was not innocent in fact, does not charge a conspiracy to do an unlawful act, though a complaint against him before another justice for the same offense is then pending, on his appeal, in the superior court. Commonwealth v. McParland, 19 N. E. Rep. (Mass.) 25.

An indictment under a Federal Statute relating to conspiracies to commit an offense against or to- defraud the United States followed by an act of one or more of the conspirators to effect the object of the conspiracy, charging an intent to defraud the United States by obtaining the dismissal of certain suits which by law might be brought by the United States to recover certain lands alleged to have been fraudulently and unlawfully obtained from the United States, does not charge a conspiracy to defraud the United States, since the use of the word “ alleged ” renders-the fraud an open question. United States v. Milner, 36 Fed. Rep. 890.

EVIDENCE.

In a trial for conspiracy to falsely institute and maintain an action for divorce in the name of a wife against her husband without her knowledge and consent, held that the mere fact that there was an agreement having for its object the doing of an act which may be unlawful, although followed by the doing of the act, does not constitute the crime, but it must also be found that the parties were actuated by a criminal intent. People v. Flack, 125 N. Y. 324.

Evidence on the trial of an indictment against an attorney for conspiracy in fraudulently procuring and obtaining an order vacating a decree of divorce considered, and judgment affirmed. People v. Hummel, 21 N. Y. Crim. 162.

In a prosecution for conspiracy to bribe a person holding an office of trust or profit under the laws of the state, the question whether or not such a person was an officer de jure is immaterial, he having qualified and acted as such an officer and being an officer de facto. State v. Ray, 153 2nd. 334.  