
    Supreme Court - Kings Special Term
    June, 1895.
    PEOPLE v. WILLIAM W. McLAUGHLIN.
    (69 St. Rep. 252; 13 Misc. 287.)
    1. Criminal law—Stay—Certificate.
    Where the court has a reasonable doubt of the validity of certain proceedings had in the case, a certificate of reasonable doubt, to stay the judgment, pending appeal, under section 527 of the Code of Criminal Procedure, will be granted.
    
      2. Same.
    The court held that it had such doubt and granted a certificate of reasonable doubt to operate as a stay of the judgment pending an appeal.
    Motion for a certificate of reasonable doubt, pending an appeal from a judgment of conviction.
    Edward C. James and Abram I. Elkus, for motion.
    John R. Fellows, Dist. Atty., Daniel G. Rollins and Bartow S. Weeks, opposed.
   GAYNOR, J.

I have a reasonable doubt of the validity of this precipitate proceeding in the supreme court. If it is to be allowed in this defendant’s case, then it can be repeated in any one’s case. It is quite as important that justice appear to be done as that it be done. If is important that crime be punished, but far more important that the rights of the individual should be held inviolable; for that alone is all that stands between him and tyranny, whether executive or judicial. If the order of the supreme court was void, then the stay was in force when the court of oyer and terminer tried the cause. I do not see how a court may force a party to bring on a trial or application of any kind within less time than he has legally noticed it for, unless by express statutory authority to shorten the time, which did not exist in the present instance. It might as well try to make a party bring on a trial or application that he had not given notice of at all. The notice was shortened in this case by the aforesaid order of the special term of the supreme court, upon the ground that the public interest required that there be no delay of the trial of defendant. If that be a valid ground, then a notice of trial or of motion in any case involving public interest may be shortened or disregarded by a court. It seems to me the learned district attorney mistook his course, and that the court acted without jurisdiction. The way for the district attorney to prevent delay of the trial was plain. The law had not left it in the power of the defendant to delay the trial at will. He had to get a stay pending his motion in order to delay the trial at all; and the district attorney had the right to apply to the judge who has granted the stay, to vacate it, unless the defendant would stipulate, as an alternate, to argue the motion in a shortened time. The like is often done in civil causes in respect of both notices of trial and of motion. But, that a court has inherent jurisdiction to shorten at will notices essential to give it jurisdiction I cannot believe. There was no due process of law by which the special term of the supreme court was able to do what it'assumed to do in this case.

Another assigned error raises a grave question. The indictment was for the extortion of $50 from one Seagrist. To make out the crime it became necessary for the prosecution to prove a continuing illegal concert between the defendant and his ward man, Burns, to extort money; for the acts necessary to constitute the particular crime for which defendant was being tried were not committed by defendant personally, but, on the contrary, some, or, as the prosecution finally claimed, all of them, were done by Burns. This illegal concert being established, •then the act of either one was the act of the other, and in that way the defendant could be convicted. Evidence had been produced from which the jury could have found that the illegal relation existed. Next it was proved that Burns stopped the work of pulling down a building which Seagrist was engaged in, and told him he could not go on with it till he saw the captain, namely, the defendant. This was the coercion used to extort the money. Seagrist says he went to the station to see the captain, but he was not in. The next thing to prove was that the money was paid. Seagrist swore positively that he paid $50 to either the defendant or Burns, but that he could not remember which. His dubiety was upon this point only. He then testified that he made a true memorandum of the occurrence at the time of payment, and produced it. Being requested to look at the memorandum, to refresh hi® memory, he did so, and then said: “I have no distinct recollection, by looking at the book, to whom I paid it, because it was a double entry.” The memorandum was then offered and received in evidence, against the objection of defendant’s counsel. It is as follows: “November 21, 1891. Material. Paid to McLaughlin for protection, per Sergeant Bums, ordinance •officer,$50.” Seagrist said: as we have seen, that he could not tell, from this memorandum, to which one he paid the money, because it was a “double entry,” not referring to double-entry bookkeeping (for no such thing was before him), but meaning that the entry was double in meaning, or equivocal. And so the memorandum seems to be; for who can say from it, any more than Seagrist could, whether it conveys the statement that the money was paid to McLaughlin per or through Bums lor protection, or paid directly to McLaughlin for protection to be given per or through Burns? It follows that this delphio memorandum was not competent to prove to which one the money was actually given by Seagrist. That was the only point upon which his memory failed, and the memorandum could not be competent to prove anything except something which the witness could not recollect. National Ulster County Bank v. Madden, 114 N. Y. 280; 23 St. Rep. 220; 3 Rice, Ev. 100. He remembered positively that he paid the $50 to one or the other, so that the memorandum could mot be received to prove that. But, in another aspect, it seems that the memorandum could not be legal evidence. The rule allowing an original written memorandum of a fact to be used as evidence of such fact,- in the absence of recollection of the fact by the person who made the memorandum, relates only to memoranda of facts, and not to memoranda of inferences or conclusions. The memorandum in -question is of a conclusion. It contains a conclusion that an illegal concert existed between McLaughlin and Burns; that payment to Burns was payment to McLaughlin for his protection, or else that payment to McLaughlin was for his protection through Burns. Indeed, it contains a statement of a conclusion that the very crime for which the defendant was being tried was committed. It was competent for Seagrist to testify that he paid the money to Bums, but not competent for him thereupon to state the conclusion that such payment amounted to payment to McLaughlin. Yet that is what this memorandum was interpreted to state by the prosecution. If one could make a written memorandum of his conclusions, and in that way afterwards have them received in evidence, no one would be safe in liberty or property. There would be no end of fabricated memoranda. Even an original memorandum of a simple fact is received in evidence with hesitation, and only from necessity; and such caution is necessary, as our highest court has said, “until the moral infirmity of human nature becomes exceptionally less than it yet has.” 114 N. Y. 285; 23 St. Rep. 220.

The motion is granted.

Ordered accordingly.  