
    COURT OF GENERAL SESSIONS—NEW YORK CO.,
    Jan. 1911.
    THE PEOPLE v. RICHARD H. LEE.
    (70 Misc. 446.)
    Extoetion—Indictment.
    Indictment—¡Finding and Filing and Fobmal Requisites—Evidence— Otheb Offenses, etc., by Accused.
    There is no impropriety in a grand jury hearing in one proceeding evidence of related or unrelated crimes of the defendant provided each indictment is found upon legal evidence.
    Where, in a single proceeding, a grand jury hears evidence against a defendant bearing upon unrelated crimes and finds three indictments against him; the first charging him with the crime of misappropriation as a public officer and grand larceny in the second degree; the second charging him with making a false entry in an account as a public officer, with making a false entry in an account as a person receiving money on behalf of the city of New York and with making a false entry in an account book belonging to and appertaining to said city with intent to defraud and conceal a larceny, and the third charging him with the crime of extortion, a motion to dismiss the indictments, on the ground that orderly practice and procedure before the grand jury required that the evidence relating to the extortion charge should be separately heard, and also upon the ground that in presenting the evidence as to said charge the minds of the grand jurors were predisposed to believe the defendant guilty of all the offenses, should be denied.
    The indictment for extortion charged that the sum of seventy-five dollars, the property of T and B, copartners in trade, engaged in business under a stated firm name, was feloniously received by defendant from said copartners with their consent, such consent being then and there by defendant induced by a wrongful use of fear on the part of said copartners then and there by defendant induced by means of a threat by defendant then and there made to said copartners to injure, annoy, harass and obstruct them with said copartners in their business and to prevent them from properly, freely and profitably carrying on the same, and especially to prevent and hinder them from receiving their merchandise at the public docks of the city of New York unless they, the said copartners, gave to defendant said sum of money. It appeared from the minutes of the grand jury that T, who was the only partner examined concerning the extortion charge, testified that defendant’s connection therewith was solely and exclusively with T. Held, that the language of the indictment, fear on the part of said copartners induced by means of a threat, was descriptive of the individuals composing the firm and referred to each of the partners previously mentioned in the indictment.
    It was not necessary for the indictment to allege that the copartners were put in fear by means of a threat on the part of defendant and it would have been sufficient to allege that the money was obtained by a wrongful use of fear induced by a threat to do an unlawful injury to the business of which T was a member.
    The fact that T gave defendant partnership money did not require the indictment to charge that it was- partnership money, the question being whether the money was obtained by defendant from the individual threatened.
    Motiost to dismiss indictments.
    
      Abraham Levy and Henry W. Unger, for motion.
    
      Oswald N. Jacoby, deputy assistant district attorney, opposed.
   Rosalsky, J.

This is a motion to dismiss three indictments filed against the above named defendant by the grand jury, as follows: Indictment Ho. 77,178, charging him in four counts, in various forms, with the crime of misappropriation by a public officer and grand larceny in the second degree; indictment Ho. 78,577, charging him in three counts, respectively, with making a false entry in an account as a public officer, with making a false entry in an account as a person receiving money on behalf of a city, and with making a false entry in an account book belonging to and appertaining to the city of New York with intent to defraud and conceal a larceny; indictment Ho. 78,552, charging him in one count with the crime of extortion, in that the sum of seventy-five dollars, the personal property of Joseph Tino and John Belsone, copartners in trade engaged in business under the firm name and style of Joseph Tino & Co., was feloniously received by the defendant from the said copartners with their consent, such consent being then and there by him, the said Bichard H. Lee, induced by a wrongful use of fear, to wit: fear on the part of said copartners then and there by him, the said Bichard H. Lee, induced by means of a threat by him, the said Bichard H. Lee, then and there made to said copartners, that is to say, to injure, annoy, harass and obstruct them, the said copartners, in their business, and to prevent them from properly, freely and profitably carrying on the same, and, especially, to prevent and hinder them from receiving their merchandise at the public docks in the city of New York unless they, the said copartners, gave to him, the said Bichard H. Lee, the said sum of money,” etc.

The stenographer’s minutes show that the grand jury heard in a single proceeding the testimony of the people’s witnesses concerning the charges of grand larceny, forgery and extortion, and upon such testimony the said three indictments were found. The learned counsel for the defendant concede that while the misappropriation indictment and the forgery indictment might be deemed to relate to one transaction, which transaction might constitute those crimes, and that, while the hearing of those two charges in one proceeding might not furnish ground for objection, nevertheless it was manifest impropriety for the district attorney, in a single proceeding, to present evidence concerning the extortion charge, because the latter offense was absolutely unrelated and disconnected in point of time, circumstance and subject-matter, and urge that in presenting evidence of the extortion charge in the same proceeding the minds of the grand jurors were predisposed to believe the defendant guilty of all of the offenses, and that the orderly practice and procedure before the grand jury required that the evidence relating to the extortion charge be separately heard.

In People v. Rutherford, 47 App. Div. 209, Mr. Justice Kellogg, writing for the court, said: The chief ground urged as legal error on the part of the grand jury is the listening to testimony of the one witness as to the whole transaction occurring between her and the defendant had at one time, touching the two notes, for the forging of each of which he was separately indicted. It certainly would not be improper for the same grand jury to indict the same man for two distinct offenses. Having indicted him once, it might with equal force be urged that the second indictment was in some way affected by the first, and that the grand jury was disqualified as unable to properly withstand the force of the odium resulting from the first indictment. I do not think that it was an invasion of any of the inalienable rights of the citizen to permit this common practice of hearing all the evidence of a single witness, when before the grand jury, bearing in a legal way upon any crime for which a person is sought to be indicted.”

In People v. Acritelli, 22 N. Y. Cr. Rep. 112, my learned associate, Judge Crain, in a lucid and well-considered opinion, said: . “ My view of the matter is that convenience suggests, where offenses belong to the same general class, as, for example, two charges of forgery, or two alleged violations of the election law, they be considered by the grand jury at the same time, without the necessity of that formal separation which would entail a delay in the repetition of evidence. Where, as in the case at bar, the deliberations of the grand jury result in indictments which cover all the crimes as to which testimony has been produced before the grand jury and the crimes are themselves of such a similar character that the grand jury cannot be said to have concluded that a defendant •was guilty of one for the reason that they have found him guilty of another, no prejudice results to a defendant.

“ A different question would arise if the grand jury, in listening to testimony against a defendant, elicited for the purpose of establishing the defendant’s guilt of a particular offense, heard at the same time evidence against the same defendant bearing upon an unrelated crime, and which testimony did not result in an indictment respecting such other crime. In this event it might perhaps be urged with force that the grand jury in finding a given indictment had been influenced by the circumstance that there was testimony before it in impeachment of the defendant’s general character, and indicative of his commission of another offence. This is not the situation in the case at bar, and for the reasons stated I am of opinion that this contention cannot prevail.”

I agree with my learned associate that where, in a single proceeding, a grand jury hears evidence against a defendant bearing upon unrelated crimes, and upon such evidence finds indictments for all of the offenses, a defendant cannot be heard to urge that his rights were prejudiced before the grand jury. Counsel cite the case of the People v. Molineux, 168 N. Y. 264, in support of their contention. It is apparent that, on a trial of a defendant before a petit jury, a distinct crime unconnected with, and unrelated to, the charge laid in the indictment cannot be given in evidence against a prisoner, except where the evidence of the other crimes is offered to prove the specific crime charged, when it tends to establish: first, motives; second, intent; third, the absence of mistake or accident; fourth, a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the others; fifth, the identity of the person charged with the commission of the crime on trial.

The district attorney, in presenting to the grand jury evidence of the unrelated crime in the same proceeding, did not do so for the purpose of establishing the defendant’s guilt upon the charges of larceny and forgery, as is the case where evidence of other crimes is competent to prove .any one of the five subdivisions referred to in the Molineux case; but his purpose in presenting the evidence of the unrelated crime was to have the grand jury find an indictment for the unrelated crime itself. Of course, if in a single proceeding evidence of an unrelated crime is presented to a grand jury for the purpose of loading down a defendant with other acts of wrongdoing, so as to induce in the minds of the grand jury a belief in the defendant’s guilt upon a particular charge which it is considering with a view to finding an indictment, the procedure would be open to serious objection, provided it could be shown that, without the prejudicial evidence, no indictment could have been legally found. It seems to me that, where the grand jury considers at one time collective charges against a defendant, resulting in the finding of indictments, the test in determining whether the grand jury was justified in finding the indictments is to ascertain from the evidence presented whether on each particular charge there was legal evidence before the grand jury, so that, disregarding the improper and incompetent evidence, the indictment would still have been found; and, if the grand jury were not influenced to find the indictments by the improper evidence, but by the legal evidence before them, the court should permit the indictments to stand and the defendant to be tried thereon.

Inasmuch as the grand jury would not be disqualified from hearing evidence, in separate proceedings, on as many charges as could be presented against a defendant for alleged violations of law, it is clear that there is no impropriety in a grand jury hearing in one proceeding evidence of related or unrelated crimes, provided, in its last analysis, each indictment is sustained by legal evidence.

It appears from the grand jury minutes that Joseph Tino, one of the members of the firm of Joseph Tino & Co., was the only member of that firm who testified before the grand jury concerning the extortion charge, and that whatever transaction the defendant figured in with respect to this charge was had solely and exclusively with said Tino and not with his copartner, Belsone. Although the indictment charges that the defendant did receive the money from said copartners with their consent, such consent being then and there induced by fear on the part of said copartners by means of a threat by him, the said Bichard H. Lee, then and there made to said copartners, nevertheless there was no testimony before the grand jury to show that there was any fear on the part of Belsone induced by means of a threat to him, made by the defendant. The defendant, therefore, urges that if any crime is charged in the indictment it was not established before the grand jury, and that if any crime was established before the grand jury it was not charged in the indictment. In other words, it is argued by the learned counsel for the defendant that the fear charged must be inspired in the individuals and not in the copartnership, because a copartnership is an entity distinct from the copartners. This claim would be forceful if the indictment had charged that the fear on the part of the co-partnership was induced by means of a threat; but a careful perusal of the indictment clearly shows that the phrase, “ fear on the part of said copartners, induced by means of a threat ” is descriptive of the individuals composing the firm of Joseph Tino & Co., and refers to Joseph Tino and John Belsone mentioned in the first part of the indictment. In the light of the evidence before the grand jury, it was not necessary for the indictment to allege that the copartners were put in fear by means of a threat on the part of the defendant. The indictment would have been sufficient if it alleged that the money was obtained by a wrongful use of fear induced by a threat to do an unlawful injury to the business of which John Belsone was a member. The fact that Tino gave to the defendant copartnership money did not require the pleader to charge that it was copartnership money, because, in a case of extortion, it is not material whether the money which the individual threatened paid to a defendant was his own money or the money of a copartnership. It is not a question of whose money was extorted by the defendant but whether it was obtained by the defendant from the individual threatened. People v. Weinseimer, 117 App. Div. 603. So that if, upon the trial of the defendant, the people shall prove that the defendant feloniously did receive from Tino, with his consent, a sum of money, such consent being induced by a wrongful use of fear on the part of said Tino, induced by means of a threat on the part of the defendant, etc., the indictment could be amended so as to read that one of the partners, by means of a threat, was induced to pay the money to the defendant; and, if such allegation is established upon the defendant’s trial, there can be no just ground for criticism of the indictment, as the evidence would conform to that presented to the grand jury.

I have carefully read the evidence relating to these charges and am of the opinion that no substantial ground exists which would justify the setting aside of the indictments.

The motions to set aside the indictments herein are denied.

Hotions denied.

such visit an entry was made in the docket of the justice as follows:

“ Before Daniel A. Tarbell, Justice of the Peace, North Lansing, Co. of Tompkins, N. Y. Abraham Cuatt, complainant against himself. Charge: Assault and Battery, 3rd degree. Complained that he had committed an assault and battery against the person of Leroy Buck, and plead guilty to the charge in the 3rd degree, when a fine of three dollars was imposed upon him and was paid. Dated this 18th day of June, 1910.”

On the same day, Leroy Buck, the injured party, appeared before A. J. Coni on, another justice of the peace of said town, made an information in writing in due form, charging the defendant with assault in the third degree, committed on that day, whereupon a warrant was issued for the arrest of the defendant. Thereafter, and on the 26th day of August, 1910, the defendant was arrested on said warrant in the town of Van Etten, Chemung county, which warrant was not indorsed by a magistrate of Chemung county; the defendant was brought into Tompkins county and taken the next day before Justice Conlon, and was there arraigned on said charge of assault in the third degree. The defendant was represented by counsel and no question was raised, then and there, as to the validity of the warrant nor the arrest; neither was the plea of former conviction interposed. The defendant pleaded not guilty and demanded an examination. The case was adjourned by the justice to August 31, 1910, for examination, and the defendant admitted to bail.

The defendant duly appeared on the adjourned day, with his counsel, the case was called and the justice thereupon denied defendant’s application for an examination. The defendant then demanded a jury trial and a jury was drawn and the case adjourned for trial to September 3, 1910. The defendant thus far interposed no objection to the proceeding, and made no motion to dismiss the case, and in no way objected to the proceeding. On the 3d of September, 1910, a jury was impaneled and the case tried, the jury rendering a verdict of guilty. The defendant was thereupon sentenced to serve a term of ninety days in the Monroe county penitentiary and, in addition thereto, to pay a fine of twenty-five dollars and be imprisoned until such fine be paid, not exceeding twenty-five days.

Upon the affidavit of the defendant’s wife an appeal was allowed to the County Court of Tompkins county.

The affidavit upon which the appeal was granted alleges acts of misconduct occurring during the trial on the part of the justice and spectators, tending to show that the defendant did not have a fair and orderly trial, and also attacks the validity of the warrant, raises the question of denial of a preliminary examination, the former conviction, and other questions.

But nothing is found in the return to sustain the claim of misconduct on the trial. The return shows a fair and orderly trial, conducted with scrupulous regard for the rights of the defendant. The case is to be decided on the evidence and proceedings contained in the return; not on the uncorroborated ex parte affidavit on which the appeal was granted.

The warrant should have been indorsed by a magistrate of Chemung county before it was executed there, but this question does not go to the merits and was not raised at the time of arraignment. The defendant appeared before the justice with his counsel and interposed no objection to the jurisdiction of the court; and, by appearing without objection and pleading to the charge, he waived the defects in the procedure and submitted himself to the jurisdiction of the court. Matter of Blum, 9 Misc. Rep. 571; People v. Gill, 5 T. & C. 308; People v. Beatty, 39 Hun, 476; People v. McGann, 43 id. 55; People v. Carter, 88 id. 304. Even an infant may by his waiver confer jurisdiction on the court of special sessions to try him. People v. Wandell, 21 Hun, 515. An interesting discussion of the law of waiver in criminal actions is found in Pierson v. People, 79 N. Y. 424, and People v. Cignarale, 110 id. 23.

The purpose of a warrant is to bring the accused before the court, but jurisdiction does not necessarily depend on the warrant. A defendant may, after a warrant has been issued against him and before he is arrested, appear before the magistrate where the information is filed and plead to the information and thereby submit to the jurisdiction of the court without being arrested on the warrant, and such appearance without objection waives all defects in the warrant and confers jurisdiction. The irregularity in the arrest and warrant was not jurisdictional and did not divest the justice of jurisdiction. People v. Webster, 75 Hun, 278; People v. Carter, 88 id. 304. In People v. Eberspacher, 79 Hun, 410, the question of the illegality of the arrest was raised. The warrant was issued by the recorder of the city of Poughkeepsie on a charge of assault in the third degree, the defendant was arrested in Westchester county, the warrant not being properly indorsed, and on being brought before the recorder he asked his discharge on the ground of the illegality of his arrest, which was denied. The court held as follows: We think the point as to the defendant’s arrest does not affect the validity of his trial and conviction. The complaint was made and a warrant properly issued and the court had jurisdiction of the offense charged. It was, therefore, authorized to try and determine the complaint against the defendant whenever he might be brought before the court.” The general rule is that “ it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought before the court * * *. In general, when one is liable to be detained upon a criminal charge, the court will not inquire into the manner of his capture, * ■ * * but will hold him to answer thereto.” See Crocker Sheriffs (3d ed.), 35.

It is urged that the defendant was entitled to a preliminary examination before trial. He cites no authority for this claim and I believe none exists. The court of special sessions had exclusive jurisdiction of this action (Code Crim. Pro., § 56), subject to the power of removal provided by sections 57 and 58; but no application was made for removal, so jurisdiction continued in the court of special sessions. The provisions of the Code of Criminal Procedure concerning examinations, sections 188 to 221 inclusive, relate to actions prosecuted by indictment. It is held in People v. Johnson, 187 N. Y. 319, that part IV of the Code of Criminal Procedure, commencing with section 133 and ending with section 698, relates only to actions prosecuted by indictment. The justice of the peace, Conlon, had exclusive jurisdiction to try this case and no application was made to remove, so a preliminary examination was properly denied. People v. Miller, 124 N. Y. Supp. 158.

The defendant was not harmed by the adjournment from August twenty-sixth to thirty-first, as he had been admitted to bail. If any error was committed by the justice in adjourning the case for an examination and then on the adjourned day denying it, such error was waived by the defendant not objecting to it and excepting. It was irregular to adjourn for a preliminary examination. Yet that did not affect the merits, and the question was not raised by the defendant in the affidavit on which this appeal was granted, and consequently cannot be considered here. People v. Beatty, 39 Hun, 476; Code Crim. Pro., § 750; People v. Giles, 152 N. Y. 141; People v. Scherno, 140 App. Div. 95.

The defendant did not plead the former conviction which is one of the matters which should be pleaded if relied on as a defense. Code Crim. Pro., § 334; People v. Cignarale, 110 N. Y. 29. But notwithstanding his failure to plead the former conviction, the defendant did prove on the trial what occurred before Justice Tar bell, and it was before the jury for their consideration. I do not think the plea of former conviction can be invoked in favor of the defendant in this action. A former conviction, to be available as a defense, should be a valid conviction. Certainly the proceeding had before Justice Tarbell was not an examination or trial upon the merits. The defendant there appeared and complained of himself, as the justice terms it; no arrest was made, no information was made or filed, no oath was administered and no one was sworn. The purpose of that appearance before the justice and that proceeding was not to punish the defendant for the assault, but to enable him to escape the full consequences of his wrong doing. It was a fraud on the court, conducted entirely by the defendant; it was not- based on an information or any legal proof. There is nothing to sustain it. It is absolutely void and the jury did very properly disregard it.

The general rule is that a former conviction or acquittal procured by fraud of the defendant is no bar to a subsequent prosecution. Thus, where the accused, hearing of a pending or threatened prosecution by indictment, voluntarily or by collusive arrest goes before a justice of the peace and is by him convicted of a misdemeanor, he cannot subsequently plead former jeopardy to an indictment for the same crime. If the prosecution was controlled and managed by the accused, he has never been in jeopardy; and the proceeding being void the State may attack it collaterally.” 12 Cyc. 262, subd. 5.

The above quotation is abundantly sustained by citations from various jurisdictions, and its reasoning is such as to commend it as well.

The defendant, in prosecuting himself, adopted a form of practice unauthorized by our criminal law. Uo opportunity was given the injured party to appear and prosecute. The defendant in that proceeding acted in the dual capacity of complainant and defendant, which is something that has no authorization in judicial procedure. There was no competent proof before Justice Tarbell of any fact. The defendant to avail himself of a former conviction ought to have specifically pleaded it when arraigned, giving the date and place of the occurrence for which he was convicted, before Justice Tarbell, and proved the same on the trial, none of which he did; neither did he prove the identity of the two assaults. From anything that was before the court there might have been two or more separate assaults committed by the defendant upon Leroy Buck on the same day and, if so, they would constitute separate and distinct crimes. People v. Gibbs, 93 N. Y. 471. There was no proof before Justice Tarbell as to the date of the act for which the defendant complained, nor does it appear that it was within the jurisdiction of the court. The record made by Justice Tarbell does not contain statements sufficient to sustain a conviction. It is unsigned and the justice was not informed of the gravity of the assault.

The Constitution of the United States provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Our State Constitution provides, “ FTo person shall be subject to be twice put in jeopardy for the same offense.” Art. I, § 6. Legal jeopardy does not arise if the court has no jurisdiction of the offense. Commonwealth v. Peters, 53 Metc. 387; Commonwealth v. Goddard, 13 id. 455; People v. Tyler, 7 Mich. 161. A defense of former conviction cannot be sustained on proceedings before a justice of the peace on their face absolutely void. And no jeopardy can arise from a trial and conviction in a court having no jurisdiction. Mont-rose v. State, 61 Miss. 429.

The verdict of the jury was fully justified by the evidence. In fact, no other verdict could be expected from the evidence. The record contains but few exceptions. If the defendant believed the ruling of the court was unfavorable to him he should have protected himself by timely exception. Error in the admission or exclusion of evidence upon a criminal trial can be made available only by objection and exception taken on the trial and this rule is not modified by section 521 of the Code of Criminal Procedure. The defendant waived the right to raise questions on the admission or exclusion of evidence by not objecting and excepting upon the trial. People v. Guidici, 100 N. Y. 503.

In view of all the evidence and the uncalled-for and brutal nature of the assault, it does not appear that the sentence imposed was excessive. The justice of the peace who heard the evidence and conducted the trial, which was held a considerable time after the assault, was well able to judge as to the penalty demanded; and I cannot say that he erred in the measure of punishment meted out to the defendant. It seems, from a reading of the evidence, that the defendant has no reason to complain of the extent of the punishment in view of the serious nature of his offense.

Ordered, that the judgment of conviction be affirmed and the action proceed as provided by section 766 of the Code of Criminal Procedure.

Judgment of conviction affirmed.  