
    The People, Resp’ts, v. James A. Flack et al., App’lts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Conspiracy.
    The rule that a confederation to do an act, innocent in itself, does not hecoine a criminal act unless the agreement to do the act is with knowledge that it is prohibited, has no application to a confederation to do acts which never in themselves can be innocent, and therefore the very confederation to do them makes the confederation corrupt, and the only question in a case of this description to be left to the jury is whether there was a confederation to effect the result by unlawful means, the court necessarily being the judge as to whether the means were lawful or unlawful.
    Same — Intent.
    Where acts are mala in se, the question of the intent with which they are done lias no bearing upon the guilt or innocence of those charged wit them, because the doing of such acts shows criminal intent.
    3. Same.
    It is not the province of the jury in a criminal case to determine whethe or not an act established by the evidence is lawful or unlawful. SucI question is one of law, exclusively for the court.
    4. Same — Divorce—Charge.
    In a trial for a conspiracy to procure a fraudulent divorce, where sue) divorce is procured, upon papers, each of which was confessedly fraudu lent, it is not error for the judge to charge the jury that the divorce i fraudulent.
    5. Same — Judge cannot authorize acts which will result in a erau:
    on the. court.
    A judge of a court is utterly without jurisdiction to direct the pei formance of acts which must necessarily result in the perpetration of fraud upon the court, and render absolutely void any action had then upon, and such acts of a judge, if established, will not be a protection t any one following out his instructions in regard thereto.
    6. Criminal law — New trial.
    A verdict of a jury in a criminal case will not be set aside bccaus there was concealed in the jury room during the deliberations of the jur a reporter of a daily paper, where it appears that their judgment was i no manner affected by the intrusion of this man, without their know edge, into the jury room. Especially where, after discovery of the into der in the jury room, the defendants, with full knowledge of the fac permitted the trial to go on and allowed the jury, who had come in court for instructions, to be sent back without objection, and asked tl court to give instructions to the jury on their behalf.
    Appeal from judgment of the court of over and terminer coi victing the defendants, James A. Flack and William L. Flack, < a misdemeanor.
    
      jHorace Bussell, for app’lts; J. W. Goff, for resp’ts.
   Van Brunt, P. J.

The question presented upon this appe arises entirely upon exceptions taken to the charge of the judg

The appellants, together with one Joseph Meeks, were convictc of a conspiracy for the perversion of justice and of the due a ministration of the law by procuring by unlawful means a deer< of divorce. The indictment under which this conviction was hi contained many counts, which, however, may be summarized follows: First, a conspiracy to obtain a divorce without tl knowledge and consent of the plaintiff therein. Secondly, a co spiracy to obtain a divorce by unlawful means.

Although a large number of exceptions to the charge of tl learned judge who presided at the trial were taken, our attenth upon this appeal has been called to the following, only:

First. An exception to the statement of the court that “ tl judgment record ” (referring to the decree of divorce), “ is a reeo: of a fraudulent divorce; that of that there can be no doubt, whs ever; that it is unquestionably fraudulent.”

Second. An exception to the following language of the cor contained in instructions to the jury as to the duties of the refer in the taking of the testimony of the witnesses in an action f divorce: “If the referee had done his duty would she (referrh to one of the witnesses) have said she first knew him fifteen yes ago as Beynolds. She says now she never did.”

Third. That the court erred in its charge that it was no excuse or Meeks, if he performed the acts he did perform by the consent f Judge Bookstaver.

Our attention is called to the following requests and exceptions a connection with this point:

I ask your honor to charge that Judge Bookstaver was the udge of the regularity of the proceedings and the sufficiency of he papers.

The court so charged.

Mr. Bird: I ask your honor to charge that if Judge Booktaver knew when the papers were brought back to him that the' hanges had been made in them as testified to by the defendant leeks, that then this jury cannot find Mr. Meeks guilty.

The court declined so to charge; exception taken.

Mr. Bird: I ask your honor to charge that it was in the ower of Judge Bookstaver verbally to direct changes of the íaracter made here.

The court: I decline so to charge, and charge the direct ¡verse.

Mr. Bird: I except to that and to the qualification, on behalf : each of the defendants.

I ask your honor to charge the jury that Judge Bookstaver, ring the judge to whom the papers were presented, was the ile judge of the sufficiency of the proof.

The court: Yes.

Mr. Bird: I ask your honor to charge that if that is so, this cord is not a fraudulent record.

The court: I decline so to charge. Exception taken.

The counsel for Meeks then asked the court to charge that if r. Meeks did what he did, what he has sworn to upon the stand, >on the direction of Judge Bookstaver, without any criminal nnection with any other person, but simply obeyed the order of e judge who' had obtained jurisdiction over the case, he comtted no crime whatever.

The court: “I charge the part which refers to his criminal fc, but everything in relation to his having done it by the di;tion of Judge Bookstaver I decline to charge.”

The counsel then requested the court to charge that “Judge iokstaver had exclusive power to give directions to Mr. seks, he being his referee.”

The court: “ He had no authority to direct Mr. Meeks or anyij else to change, .erase, or make any alterations suchas have ?n made here in that record, and if he did so, he himself was •elict in his duty.” The counsel excepted to the refusal of the irge as requested, and to the qualification as charged.

The counsel asked the court to charge that if the jury believed t Judge Bookstaver gave Meeks a verbal order to have a rage of attorneys made, and that Meeks effected that purpose ■he has described upon the witness stand without any intent to Bnmit a crime, and that Judge Bookstaver was not imposed upon, ft acted upon his own official judgment and upon the papers presented to him by Meeks, that then they must acquit the ch fendant Meeks.

The court: I decline to charge that. So far as the criminal ir tent is concerned, it is correct. Everything about Judge Bool stayer’s verbal order, etc., I decline to charge.

Exception was also taken to the following language in th charge that, “ Ignorance on the part of the defendants, or any c them, of the meaning of this statute, cannot be a shield to them : you believe they have committed the acts. If you believ beyond a reasonable doubt that they have committed the ac which constitute the offense as I have defined it to you, then the are guilty.” And the court thereupon defined a criminal inter to be the doing of an unlawful act intending to do it, and tin ignorance of the law has nothing to do with it.

The court was also asked to charge as follows, which it did : That “mere concert is not conspiracy; persons who agree to c an act innocent in itself, in good faith, not by the use of crimin means, do not become conspirators because it turns out afterwan that the act was prohibited by statute.”

The court was also asked to charge the jury, which it did, th the jury must not guess that there was a conspiracy, but that the could only find the same from the legal evidence of the witnesse proving the same beyond reasonable doubt.

The court also charged in the following language: “ If in sts ing either conceded facts, or the facts proven on one side and co troverted on the other, such facts, as so stated, seem to weigh o: way or the other, pray do not consider me as commenting < such facts or expressing an opinion upon them.” Also, “ T two questions for you to determine are, first, whether the si which resulted in' this decree was fraudulently and falsely ins tuted. Then the other question for your consideration is, was tl fraudulent decree obtained by fraudulent means ? ”

And also: “ Mow when I pronounce this a fraudulent deer I do not mean to characterize the conduct of the defendan which I want to leave exclusively to you.” Again: “ Mow t first question in this case, as you see, is whether the suit its was falsely instituted. The first is, of course, whether Mrs. Fla is to be credited in her statement that she did not authorize t suit to be brought for an actual divorce. This is a questi exclusively for you, and concerning it I desire to express opinion, nor to affect your judgment in the least.”

Also: “It will be for you to say, gentlemen, on the fac whether these defendants are guilty of having obtained tl decree of divorce by fraudulent or unlawful means. On tl point it is proper to say, whether there was a genuine cause action is not the question. The question is, whether the 1 has been abused or perverted by practices which are fraudulen The court also charged that if the jury believed the defendí Meeks did all the acts testified to in the case without conspiri with the other defendants or anybody else, they must acq him.

And again: “ Mow, gentlemen, apply the rule- with regard jonspiracy which I have given you and the general principles of ;he law which I have stated, and take all the evidence here vhich is before you uncontradicted and that which is in conflict, md look at the entire case in its length and breadth, I leave it l for you to say whether there is, or is not, any reasonable bt of the guilt of those defendants. If there is any reason-i doubt as to the guilt of one of them, he is entitled to it. rere is such doubt as to all of them, they are all entitled to If there is no reasonable doubt as to the guilt of any of them, should so declare by a verdict.”

c will be noticed that all these exceptions really relate but to subjects, viz.: the characterization by the judge of the decree he definition given of a criminal intent. ivorce which had been obtained as a fraudulent decree, and

; is urged upon the part of the appellants that by this charge judge usurped the privileges and functions of the jury and ated to them as matter of law, or as a matter of mixed law fact, what should have been left to them to find as a matter act, or as a matter of mixed law and fact, under proper inctions as to the law from the court. And as an enforcement ais proposition it is also urged that one of the questions on trial was whether the divorce was fraudulent; and that the irmination of the question involved not only the acts of the sndants, but the intent which was to be inferred by the jury i these acts, that' is, not only the physical but the inferential 3; that it was not enough to secure a conviction that certain iwful acts were done, but those acts must have been done in suance of a conspiracy animated by a corrupt purpose to pro-j a fraudulent divorce.

7e think that upon a consideration of the case it will be seen the learned counsel for the defendants has mistaken the stion which the jury was called upon to pass, and that principal question on the trial was not whether the divorce ch had been procured was fraudulent, but whether there had i a conspiracy upon the part of each of these defendants with e other person or persons for the purpose of procuring- a >rce by unlawful means. It is undoubtedly true that in a linal case the court has no power to charge the jury that the sndants are guilty; aiid for that reason upon the trial of an ctment for homicide it was held to be error for the court to :ge that if they believed the evidence of certain witnesses the aidant was guilty of murder.

'his was held to be error because although the homicide might sstablished beyond question, yet it was for the jury to say ither the homicide had been committed with the intent to kill, ch was a necessary ingredient of the crime of murder, and as nt is necessarily a mental operation, the existence of which only be inferred from established words and acts, the jury te could draw this inference. McKenna, v. People, 81 N. Y.,

o it was held that it was error, in the case of a defendant filed for burglary with intent to commit larceny, for the court to charge that the evidence showed that the burglary had been com mitted; because although the evidence may have shown that then had been a breaking into the premises, it did not show that a bur glory had been committed unless it showed a breaking into witl intent to steal, the intent being a part of the definition of burglary And for the reason already stated the jury alone could draw th inference of intent. People v. Marks, 4 Park. Crim., 157.

There is another class of cases in which the question of inten must necessarily be submitted to the jury, and that is where tw or more persons are indicted for the crime of conspiracy, it is no enough to prove them guilty to show that they have made a: agreement to do an act innocent in itself, and that the act whic' was the object of the agreement was prohibited, but it must i addition be shown that the confederation was corrupt, and that th agreement must have been entered into with an evil purpose t distinguished from a purpose simply to do an act innocent in i self in ignorance of the prohibition. And it is said “ persons wh agree to do an-act innocent in itself in good faith without the us of criminal means, are not converted into conspirators because turns out that the act contemplated was prohibited by statut The actual criminal intention belongs to the definition of the o fense, and must be shown to justify a conviction.”

In other words, a confederation to do an act innocent in itse does not become a criminal act unless the agreement to do the a is with knowledge that it is prohibited, because otherwise the co: federation cannot be corrupt. People v. Powell, 63 N. Y., 88.

But this rule has no application to a confederation to do ac which never in themselves can be innocent, and therefore the vei confederation to do them makes the confederation corrupt, ai the only question in a case of this description to be left to the jm is whether there was a confederation to effect the result by unlai fui means, the court necessarily being the judge as to whether ti means were lawful or unlawful.

In the case at bar we find that the defendants were indicted f a conspiracy to procure a divorce by unlawful means." The learn< judge, in his charge to the jury, gave the definition of a conspirai as contained in the Penal Code, as follows :

“If two or more persons conspire either to falsely institute maintain an action, or to commit an act injurious to the puh health, the public morals, or to trade or commerce, or for. the p< version or obstruction of justice, or of the administration of t law, each of them is guilty of a misdemeanor.”

The court then called the attention of the jury to the. fact th there are two kinds of conspiracy, one a conspiracy to do an u lawful act unlawful in itself, even if the most righteous means a resorted to, and second, a conspiracy to perform a lawful act unlawful means, and the jury were instructed that a combinati for the accomplishment of unlawful acts by lawful means or la fui acts by unlawful means, each constituted a conspiracy.

The attention of the jury was then called to the further ft that a conspiracy requires two or more persons to be involved it, and that there are many acts which may be performed by o man with, impunity which two or more persons together cannot perform with impunity; and that it is the essence of the conspiracy doctrine that there should be a combination of two or more ; and unless the jury could find a combination between each of these defendants with some other person to procure this default by unlawful means, there must be an acquittal. And in various parts of the charge-the attention of the jury is specially called to the fact that if the acts which were testified to were done by any of these individuals without conspiring with the other defendants or anybody else, they were not guilty.

The evidence upon the part of Meeks shows, and this is .tho foundation of the judge’s charge in reference to this matter, that this decree, which the court pronounced to be a fraudulent decree, was obtained substantially under the following circumstances and upon the following papers:

A summons and complaint had been served upon the defendant Jas. A. Flack in a divorce proceeding and no answer had been put in. An application had been made for an order of reference which had been granted. Certain proceedings, the irregularities in which it is not necessary to mention, were had before the referee named in the order and who made his report. The referee, Mr. Meeks, presented such report with a proposed decree to the judge of the court in which the action had been brought, and the judge objected to the entering'of that decree. Whereupon Meeks iy direction of the judge, as he claims, took all the papers, destroyed the original summons, substituted a new one antedated, saw Wright put his name to it as plaintiff’s attorney, and prepared m affidavit of regularity which Wright swore to. The previous ittorney’s name was erased from the complaint and this was also k'med by Wright. The affidavit of service of the original sum-ins and complaint was attached to the new summons and com-int, a new order of reference was prepared and a proposed deie, and all these papers were presented by Meeks without any vice of the summons within a few days after their creation to i judge of the court in which the previous action had been commced, and a decree of divorce procured.

Ct appears from the record that it was claimed upon the trial it these proceedings were mere irregularities, and it was to meet s argument on the part of the defendants that the learned judge irged the jury that these were not irregularities because the irt had never acquired jurisdiction and that, because there was t a single paper in that record but which was false, therefore as -tter of law the decree was fraudulent.

Upon the uncontradicted evidence given upon this trial the irt would have been compelled to charge that this decree was id.

There was no pretence that the summons upon which it had m granted had ever been served. There was no pretence that right had ever been authorized to appear as plaintiff’s attorf. There was no pretence but that the affidavit of the service the summons and complaint was false as attached to the sum-ins and complaint upon which the decree was granted. There was no pretence "but that the affidavit of regularity was false. There was no pretence hut that the report of the referee was untrue in that no proceedings were taken before the referee subsequent to the order of reference contained in the judgment roll. And it is clear that nobody but the court could judge as to whether under these circumstances the court had ever acquired jurisdiction under the decree.

But it is urged that because the learned Judge characterized the decree as fraudulent and because fraud is always a mixed question of law and fact, therefore, it was error.

If the decree was void, why was it void ? Simply because of the fraudulent means used in its procurement; simply because there was not a single paper in the whole roll which constituted the judgment-roll and which preceded the decree but was false and fraudulent in law. And we repeat, who was to judge as to whether the law had been cheated and defrauded by the manner in which this decree had been obtained? Was it for the jury? There was no dispute as to these facts. Was it not then for the •court to say whether the law had been contravened in the procurement of that decree, rendering it fraudulent and void ? If f was void because of fraud, we can see no reason why the cour •should not characterize its nothingness by the proper appellation

The jury was expressly charged that even these facts did no' make any of the defendants guilty of the offense charged in tin indictment; because the court' said “ whether the. judgment an< these proceedings were the result of a conspiracy entered into b] these defendants is the question which the jury must solve ii favor of the people beyond a reasonable doubt, before any one c them could be convicted,” and the jury were expressly instructec that an individual accused of a crime is entitled to have it left tfl the jury to form their own conclusion upon the. evidence whethel he has or has not committed the particular crime charged again™ him. It clearly was a duty imposed upon the court to instrucl the jury as to whether the procedure which was confessed to be the defendant Meeks was a perversion of the law. The jury ail not the judge of both the law and the facts. It was for the cou™ to characterize the acts established as having been done by Meekl and it was not for the jury to determine whether they were in al cordance with the statute or not. And this is all that the coul did in declaring that this decree was fraudulent because it was nfl founded upon a single honest paper, the defendant Meeks havirl full knowledge thereof. ■

The question of the intent with which these acts were done htA no bearing upon the guilt or innocence of the defendants undB the rule laid down in the case of People v. Powell, supra. It ■ only when the act done is innocent in itself that the intent wiA which it is done becomes material. We do not think, howevA that anyone will have the hardihood to claim that the manB facture of false papers and the procurement of a divorce therecA could under these circumstances be innocent acts; and therefoA the charge of the court that the doing of the acts intending to A them showed a criminal intent was clearly correct, such acts being mala in se.

It, is to be observed, however, that these exceptions have no relation whatever to the guilt of the defendant James A. Flack. The jury were instructed that he was not connected, directly or indirectly, with these fraudulent changes which took place after Wright was consulted; and that the case against him depended upon the manner in which this action was brought, charging adultery with Susan T. Reynolds, and upon the acts done with reference to the preparation of the evidence of the witnesses whose depositions appear attached to the referee’s report. And the jury were instructed that Meeks was not affected by this consideration, but by what happened after he went to Wright; and that the question of the guilt of William L. Flack depended upon the consideration which the jury gave to the evidence as to his participation throughout in the divorce proceedings which were taken.

The learned judge was careful to distinguish between the parts which the various defendants who were then on trial before him took in the proceedings, which culminated in the indictments under which they were being tried; that there was no connection between the acts done by Meeks and the defendant James A. Flack; that if James A. Flack was guilty, his crime had been committed prior to the time when the fraudulent acts of Meeks commenced, and that he had no connection whatever with those acts, and the connection of the defendant William L. Flack with those subsequent proceedings depended upon the weight which the jury gave to the evidence produced before them.

It seems to be clear therefore that in the exceptions to the characterization by the learned judge of this decree as fraudulent the defendant James A. Flack has no interest, and that only the defendants William L. Flack and Meeks could possibly be affected by the charge, of the court in this respect, even if it were erroneous.

But we think it has been clearly shown that the court had the right to judge as to whether Meeks’ procedure was lawful or unlawful, and as to whether these proceedings were mere irregularities or frauds upon the court, and that there was no question whatever for the jury upon this point. And it should be borne in mind in the consideration of this question that the court charged expressly that although Meeks was guilty of these unlawful acts in the procurement of this decree, if he did it alone he was not guilty of the offense charged, but that it was necessary that the jury should find that he conspired with some other person for the attainment of this end by unlawful means, and thus was guilty of a conspiracy for the perversion of justice and of the due administration of the law. Again and again throughout the charge did Ithe court call the attention of the jury to the necessity of finding la combination between the defendants and some other person or [persons to do these acts before a conviction could follow. If it Iwas a fraud upon the court to procure a decree of divorce upon [papers, every one of which was stamped with confessed dishonesty, "then, the learned judge would be derelict in his duty to the people by characterizing them otherwise than he has done. In law at least fraudulent means can never culminate in honest results.

This brings us to the consideration of the claim that the learned judge erred in his commentaries upon the manner in which Meeks performed his duties as a referee.

We can see no error in the charge of the court in that respect. 'The court was bound to instruct the jury as to what was the regular method of proceeding.

It is urged that in the charge the court assumed that one of the witnesses told the truth upon the stand, and did not tell the truth in the deposition taken before Meeks; that this was an inference of fact, and it should not have been charged that the witness told the truth on the stand, and that a different state of facts would have been elicited by Meeks if he had conducted an examination.

No such question is raised by the exception to this portion of the charge, and the attention of the court was not called by anything that was said to this particular language which was used. But we think that the interpretation placed upon the language by the counsel for the appellant is not correct, upon reading the paragraph in full.

It was established by uncontradicted evidence that the depositions as sworn to before Meeks as referee did not contain the truth, and it was because of this fact that the court probably used the language to which attention is now called. All that was intended to be presented to the jury, was whether the referee upon proper •examination would have 'secured the facts as the witness told them upon the stand, which is evidenced by the next sentence in the charge: “If the referee had elicited that fact by an exam-

ination of the witness,” etc., clearly leaving the matter wholly open. If the attention of the court had been called to the use of the word “ truth ” by any properly directed exception, the language would undoubtedly have been changed, as there, was no intention exhibited upon the part of the court to usurp the province -of the jury in this respect, as the jury were again and again instructed that they were to be the judges of the facts and not the court so far as they depended upon the evidence of the witnesses.

The next error claimed is that the court erred in its charge that it was no excuse for Meeks if he performed the acts which he did perform by the consent of Judge Bookstaver or under his direction.

In support of this proposition our attention is called to the People v. Crounse, 51 Hun, 489; 21 N. Y. State Rep., 687, where a party was indicted and convicted of maintaining a public nuisance in constructing an embankment upon private land, thereby causing surface water to flow upon the public highway. The defendant undertook to give evidence showing that the act done by him was done by the direction of the commissioners of highways^ and the court held that it was competent evidence, basing their decision upon the fact that although the commissioners of highways might fail in judgment, the act having been done pursuant to their directions could not be punished criminally.

We fail to see the application of this case to the facts established in the case at bar. Judge Bookstaver had no right to direct Meeks to commit acts which under no circumstances could be other than criminal. Judge Bookstaver had no power to direct the commission of forgery and 'perjury upon which to found a decree, so as to shield the party following the direction from the consequences of his acts. In the case cited there was a mere error of judgment on the part of the commissioner of" highways. He had a right to direct the act to be done, provided it was done without public injury, and therefore the defendant in the case ■cited if acting under such authority did not act unlawfully, and hence his action would not come within the terms of the Penal Code. But, Judge Bookstaver, if he did so direct, had no power to direct the commission of acts which would result necessarily in the perpetration of a fraud upon the court It is to be borne in mind, as the learned judge charged' the jury, that the judge is not the court; that he is the mere servant and administrator of the law, and that the judges are the servants of the people to perform their duties in accordance with the law ; and that a judge is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court, and rendering absolutely void all action had thereon. Such a case is not the case of an error of judgment. It is a case of the perversion of judgment

The only other exception which appears upon the counsel’s brief is one which is not argued at length, and it is to the effect that the court erred in denying a motion for a new trial based upon the intrusion of a World reporter into the jury room during their deliberations.

It appearing in the record of this case from the affidavits of the jurors that their judgment was in no manner affected by reason of the intrusion of this man, without their knowledge, into the jury com, it is evident that the defendants have sustained no damge, and consequently the verdict cannot be set aside upon that round.

But it is also clear that whatever rights the defendants may ave had by reason of the happening of this incident, they were aived by the subsequent conduct of the defendants and their ounsel. After they had full knowledge of the facts they peritted the trial to go on and the jury to be sent back without obection and asked the court to give instructions to the jury on heir behalf, the refusal to give some of which forms one of the rounds upon which this appeal is founded.

Under such circumstances the defendants cannot now be heard o claim immunity because of this alleged irregularity. They had heir opportunity to object to the sending back of this jury. They id not; and they cannot now be allowed to assume the position of peculating upon the verdict of the jury; if it was in their favor ey would be discharged; if against them it would be set aside.

An examination of the whole case shows that the learned judge presiding at the trial in no manner usurped the functions of the jury. He repeatedly told the jury that the guilt or innocence of the defendants was a question exclusively for them to determine and in respect to which he did not wish or intend to influence-their judgment. Where conceded acts were frauds upon the court because wholly unlawful, he so characterized them, as he was bound to do, and it was for him alone so to do. As has-already been said, it was not the province of the jury to determine whether an established act was lawful or unlawful. Such question is one of law exclusively for the court.

There do not appear to be any errors which would justify a reversal of the judgment and it should be affirmed.

Daniels and Brady, JJ., concur. .  