
    The People of the State of New York, Respondent, v. Rutherford W. Kathan, Appellant.
    Second Department,
    January 21, 1910.
    Crime — bribery of witness — criminal intent essential — evidence — corroboration of accomplice — facts not showing criminal intent or corroborating accomplice — evidence — questions of law — function of jury — evidence — statements not made in presence of defendant — appeal — when prejudicial errors brought up for review — relation of Appellate Division to trial court in criminal actions —charge.
    While criminal intent will be presumed from the commission of an unlawful act, the act itself being evidence of intent, it is also true that where an act becomes criminal only through the existence of a specific intent, such intent must be proved.
    The gist of the crime of bribing'a witness contrary to section 113 of the Penal Code (Penal Law, § 2440) is not the paying of money, but the agreement, understanding, or intent with which the money was paid.
    One charged with bribing a witness by paying money through an accomplice as agent cannot be convicted upon the uncorroborated testimony of the accomplice.
    Prosecution of an attorney at law for bribing a witness. The defendant rétained to defend one charged with robbery gave to an agent the amount stolen from the complaining witness, together with twenty-fiveidollars, which he demanded as damages for loss of time, with direction to deliver the sum to the complaining witness. The defendant claimed that it wast paid not as a bribe but as restitution, he intending to throw his client ■ upon the' mercy of the court. The agent, however, testified that the defendant directed him to tell the complaining witness not to be sure of the facts when the trial was had.
    
      Meld, that the testimony of the accomplice as to the defendant’s intent was not corroborated by the above facts, nor by the fact that when the defendant heard that his agent had been arrested he exclaimed, “I am in it,” nor by his anxiety over a report that his agent was going to turn state’s evidence.
    
      On the trial of a criminal action the court must decide as a question of law whether there is any evidence corroborating the testimony of an accomplice; but it is for the jury to say whether such evidence taken in connection with that of the accomplice establishes the offense beyond a reasonable doubt.
    Where the only persons directly interested- in bribing a witness are the defendant and his client, statements of other persons who were mere agents not made in the presence of the defendant are inadmissible.
    On all the evidence, held, that the motive of the defendant in paying the money was restitution,, not bribery.
    Errors in the trial of a criminal case prejudicial to the defendant are brought up for review by an exception to the denial of a motion to dismiss the indictment at the close of the case. Moreover, an exception to the denial of such motion is unnecessary as the Appellate Division has broad powers of review.
    The Supreme Court consists of all its justices, and the Appellate Division is the quorum empowered to determine whether trials have been had according to the judgment of the court, as distinguished from the judgment of the individual justices who preside at a particular trial.
    Even where there is evidence corroborating the testimony of an accomplice the j ury should be instructed that there can be no conviction on his uncorroborated testimony, '
    Bürr, J., dissented, with opinion.
    Appeal by the defendant, Putherford W. Kathan, from a judgment of the Supreme Court, rendered against the defendant On .the 27th day of April, 1909, after atrial at the Kings County Trial Term, upon the verdict of a jury, convicting him of the crime of bribery. ■
    
      John P. Lamerdin, for the appellant.
    
      John F. Clarke, District Attorney [Robert H. Elder with him on the brief], for the respondent.
   Woodward, J.:

On April 27, 1909, the defendant, a lawyer, was convicted upon an indictment under section 113 of the Penal Code (Penal Law, § 2440) charging him with giving a bribe' to a person about to be called as a witness, upon the understanding or agreement that the testimony of such person should thereby be influenced, and, in a separate count, with feloniously and ...fraudulently attempting^ to induce said witness to withhold true testimony.

The indictment was based on the following facts: One Louis Wolf was indicted for grand larceny by the grand jury of Kings county, and retained, the defendant to represent him in the matter as his attorney. The indictment against Wolf charged him with having taken the sum of fifty dollars from the pocket of one Frank Haibele. A few days before Wolf’s case was to be called for trial the defendant Kathan gave the sum .of seventy-five dollars to a man named Heene, with instructions to deliver the amount to Haibele. The validity of the judgment convicting Kathan of the crime charged rests entirely upon the. evidence of the purpose for which this money was paid.

It' appears that Kathan, through the agency of friends, brought about a meeting between Haibele and Heene, who had been selected to approach Haibele in regard to the Wolf case. The defendant’s testimony is that his sole object in doing this was to induce Haibele to accept restitution from Wolf, who would then throw himself upon the mercy of the court. The following transcript from the record is Heene’s story of what took place between himself, Kathan and Haibele in connection with the receipt and payment of the money by him:

“ The Witness; It was said, and I told him that I was asked and been told that he was robbed, and he explained that he was robbed. So I told him that I had been instructed if he would take the money back that was taken away from him if he would be satisfied. So I gave him my — I said, the way I was informed, there was a prominent business man from East Hew York. He.says, no, he could not do that, because he lost some time and some wages, so I says, ‘ I don’t know what the proposition is, but,’ I says, ‘ Let me know what you will take.’ By the Court: Q. Who said that?. A. I said so, your Honor. So he says he could not let us know, and I could not tell those people before the next day. By Mr. Elder: Q. How, do you recall anything else that was said in that conversation on Monday ? A. Hot there in. — Q. Well, if you do not remember anything more, what happened on the next day ? A. I told Mr. Kathan — I do not know if it was the same night— * * * Mr. Kathan and Glotthelf — that this man was willing to take the money which was stolen from him-and Twenty-five dollars for his loss in wages and expenses going through. So — Q. Did Kathan say anything? A. Kathan. said he is satisfied to do'this. Q. When you had this conversation with Kathan was anybody- present besides yon and Kathan? A. I don’t know exactly if Mr. Glotthelf was present' or not. Q. You don’t recall ? A. I don’t recall this. By the Court: Q. Wait a, minute. Kathan gave you what money? What did lie give you — how much money ? A. Seventy-five dollars, as far as I understand it. I did not. count the money. By Mr. Elder: Q. Don’t you know how much money he gave you ? A. I. did not count it. The way I got it I put it in a paper. By the Court: Q. What did he give you — a roll of hills or a bag of coin or what? A. A roll of bills, your Honor.. By Mr. Elder: Q. Well, what was said there about the way it should be given, if anything was said ? A. I should' give it to the man that nobody seen it, and tell the man when it comes up in the Court that he should not be so quite sure who was picking his pockets. - Mr. Kathan said that. I put the- money'in an envelope. Mr. Kathan did not tell me to put the money in an envelope. He paid me' the money on my head waiter’s desk. The money was paid me in the afternoon or around dinner. * * * By the Court: Q. Well, in these talks that you had with Kathan. did he mention the name of this prominent man in East Hew° York who was accused ? A. Yes, your Honor. Q. What was the name he told yon ? A. Wolf. Q. Did he tell you - what his first name was ? A. Yes. * * * After getting the money I went down to Broadway to meet this butcher. When I met him I says, 'I got the money from those people.’ He says, ‘ All right.’ * * * So we went up the elevated station, and handed him the money which I was given by Mr. Kathan, and the' next moment I was arrested. *' * * I guess I stated before that the witness Haibele should not — he asked me what to do in Court — what he should say. I says, don’t remember so quite sure for it who picked your pocket.’ ”

Haibele’s. testimony as to his arrangement with Heene is substantially the same, and he further testified that Heene said to him before the- money was paid, ‘“Well then,' * * * you know what you have got to say. You only say you ain’t sure any more.’ . * * * That I ain’t sure any more if that is Wolf who stole my pocketbook. * * *. ‘ Then it is all over, and you got your money.’ ” To this Haibele testified he replied, Well, Mr. Heene, I can’t do that. I was three times in the court. I only told the truth and I swore every time. How I- should say different I will swear false.” Haibele then- took the money, handed it over to a detective, who arrested Heene.

The testimony of Heene, quoted above, as to Kathan’s instructions when he gave him the money to pay Haibele is the only direct evidence in the casé upon that point. Kathan denies that he said anything of the kind to Heene. This raises the one vital point in the case. The corpus delicti, if a crime was committed, was not the paying of the money by Kathan, which is conceded, but the agreement or understanding under which it was given; the intent on the part of Kathan in making the payment through Heene to Haibele.

The section under which the defendant was convicted reads: “ A person who gives or offers or promises to give, to any witness or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony.” The words “upon any understanding or agreement” and “attempts * * * fraudulently to induce ” are tantamount to “ with the intent.”

While criminal intent will be presumed from the commission of an'act in its nature unlawful, the act itself being evidence'of the intent, it is also true that where an act becomes criminal only through the existence of a specific intent such intent must be proved. (Stokes v. People of the State of N. Y., 53 N. Y. 179 ; Miller v. People, 5 Barb. 203; Lawson Presump. Ev. 473.)

If a crime was committed by the defendant, Heene was an accomplice ; and it is provided by section 399 of the Code of Criminal Procedure that “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

In People v. Plath (100 N. Y. 590), in reversing a judgment of conviction of the crime of abduction, the court said in regard to the kind and degree of corroboration required by section 283 of the Penal Code (Penal Law, § 71) : “ In case's where corroboration is required there has been some diversity of opinion iri the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to comply with the rule; but it is now conceded' to be the general rule that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices it was the usual practice of trial'courts to advise an acquittal, unless such evidence was in some respects corroborated by other testimony (although at common law a conviction upon the evidence of the accomplice alone was sustainable). In those cases the extent and degree of corroboration rested in the.discretion of the trials court, and necessarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Roscoe’s Criminal Evidence, 122, as follows: ‘ That there should be some fact-deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference not only that a crime has been' committed, but that the prisoner is implicated in it.’ Russell on Crimes, 962, says: ‘ That it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.’’ 1 Greenleaf on Evidence, § 381, lays down the rule as held by some, that it. is essential that there should be corroborating proof that the prisoner actually participated in the offense.’ ”

In People v. Courtney (28 Hun, 593) a judgment of conviction for forgery was reversed. The main witness for the prosecution was an accomplice, and it was urged on behalf of the defendant that there was no corroboration of his evidence such as is contemplated by section 399 of the Code of Criminal Procedure. It was said by Hr. Justice Brady : “ The language of the statute, as we have seen, is that the accomplice must be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. The existence of intimate relations is not a circumstance from which participation in the guilty acts of an associate is. to be presumed because it is consistent with innocence. The association may be continued, and may be marked by all the circumstances which characterize the association of the accomplice and the appellant herein, and yet be an innocent one. In other words, the appellant might not have been advised in any way of the intended crime by the accomplice. It is not in the language of the section, such other evidence as tends to connect the appellant with the commission of the crime. And this view of such a relation presents itself with peculiar force when the associate upon his trial for an offense charged against him, the proof of which rests chieffy upon the testimony of the accomplice, solemnly denies all participation in the crime charged.”

The district attorney finds sufficient corroboration of Heene’s testimony as to Kathan’s instructions to him, that is, as to Kathan’s intent,. (1) in a bare recital of the admitted facts of the case; (2) in Kathan’s apparent interest in Heene when he was arrested on a charge of bribery growing out of the same facts, and his exclamation to Heene’s counsel, Heyser, My God, I am in it, Heyser,” and (3) in Kathan’s anxiety over a report that Heene was going .to turn State’s evidence. We are unable to concur in this view.

The admitted facts do not tend to prove that Kathan caused the money to be paid to Iiaibele for the purpose of bribing him ; Heene’s testimony stands alone on that point, and is denied by Kathan. , When Kathan heard of Heene’s arrest for handing the money to Haibele he had reason, as the event proved, to show a lively interest in the situation, even though innocent; and his exclamation, My God, I am in it, Heyser,” appears in the testimony of the witness Heyser as follows : “ I told Kathan, when he told me what had happened, that I thought that he was in it, too. By the Court: Q. What did he tell you ? A. Why, he told me that they had sent Mr. Heene to — I did not know at that time who the man was or what his name was — to somebody to give him some money in the Wolf case. Q. Did he say what it was for? A. Ho, he did not say what it was for.. By Mr. Elder: Q. Well, what else did he say, if you recall ? A. He said, ■' My God, I am in it, Heyser.’ I think Mr. Kathan said this; either Mr.. Kathan or Gottlielf. They were all in the room together. I believe it was Mr. Kathan that said that.”

Whether there is any evidence of corroboration is a question of law for the court. (People v. Farina, 134 App. Div. 110), and we feel constrained to hold that there was none in this case going to the essential element of the crime charged.

The record discloses a number of instances where conversations had between divers individuals in the absence of the defendant were admitted in evidence over the objection and exception of the defendant’s .counsel. The district attorney seeks to justify these rulings on the ground that the conversations were in furtherance of a conspiracy to bribe Haibele, and cites People v. Miles (123 App. Div. 862) in support of his contention. That case was a prosecution for' conspiracy, and the defendant’s coconspirators were all directly interested in the plan to defraud the city. In this case the only persons directly interested in the'giving of the money which constituted the alleged crime were the defendant and his client, Wolf. The others were merely their agents. The evidence of these conversations must necessarily have tended to impress the minds of the jurors that the defendant was one of an organized gang banded together to commit a crime, and so was prejudicial. Its admission was error. (See Coleman v. People of the State of New York, 58 N. Y. 555, 561.)

From all the evidence it seems quite probable that the only motive of the defendant in causing the money to be paid to Haibele was that of restitution. The extra twenty-five dollars was paid at Haibele’s own suggestion; he said he had lost five days’ time in the matter, and that he should be compensated for that in addition to the return of the money taken from him. If bribery had been intended by the defendant, it is reasonable to assume he would have offered an amount sufficient to afford a substantial inducement for Haibele to commit perjury. And there was nothing furtive in the actions of the defendant; he took several persons into his confidence. He was a lawyer, and may be presumed' to have known the penalty of the crime, of bribery. Some degree of secretiveness would have been his first aim if he had had a criminal intent.

If it be contended that anything occurred in the conduct of the trial tending to prejudice the rights of the defendant, which cannot be reviewed on this appeal because of the want of specific objection and exception, the answer is that the. exception to the ruling of the court denying the defendant’s motion to dismiss the indictment, made at the close of the whole case, was sufficient to raise all these questions. This appears in the record as follows : “ Mr. Baldwin I move upon the record that your Honor dismiss this indictment upon the ground that there has been a failure here to prove the case ; that with relation to the proof offered by alleged accomplices in this alleged crime there has not been any sufficient corroboration ; that thej*e has been a failure on the whole case, and that the case should not be submitted to a .jury. Motion denied. . Defendant excepts.”

But no exception was necessary. In cases of this kind the Appellate Division has broader powers of review than the Court of Appeals. Certain powers can be exercised bythe Court of Appeals only when the judgment is of death. Ho such limitation is placed upon the Appellate Division. (Code Crim. Proc. §§ 527,528.) This distinction is thus pointed out by Judge Cullen in People v. Sherlock (166 N. Y. 180, 183) : “ By section 527 of the Code of Criminal Procedure the Appellate Division is authorized to grant a new trial in a criminal case when satisfied that the verdict against the prisoner is against the weight of evidence, against the law, or that justice requires it, whether exceptions have been taken in the court below or not. But by section 528, which regulates appeals to this court, the broad power given to the Appellate Division of the Supreme Court is bestowed upon us only where the judgment is of death. In other cases we can take notice only of- legal errors appearing in the record or raised by exception on the trial. (People v. Driscoll, 107 N. Y. 414; People v. Lyons, 110 N. Y. 618; People v. Leonardi, 143 N. Y. 360.) ”

This trial was in the Supreme Court. That court consists of all its justices, and the Appellate Division is the constituted quorum of that court, designated to determine whether trials have been according to the judgment of the court, as distinguished from the judgment of the individual member who happens to preside at the particular trial.

The judgment should be reversed and a new trial granted.

Jenks and Rich, JJ., concurred; Thomas, J., concurred in result in a separate opinion, .in which Woodward, Jenks and Rich, JJ:, concurred save as to the sufficiency of the corroborative évidence; Burr, J., read for affirmance.

Thomas, J. (concurring):

Defendant Kathan, a lawyer, engaged to defend Wolf under indictment for picking the pocket of Haibele, authorized Heene to pay Haibele the money taken and twenty-five dollars in addition, and delivered the money to Heene for that purpose. Heene handed the money to Haibele. The People charge that Kathan’s purpose was to bribe Haibele. Kathan’s statement is that his purpose was to make restitution and pay Haibele for time lost, so that upon a plea of guilty by Wolf the restitution might lessen the punishment. .Hence the act of payment was a crime only if done with intent to bribe. ■ Heene testified to instructions from Kathan, which, if given, clearly showed guilty purpose. Kathan denied that he gave such instructions. So the accomplice affirms; the principal denies. . The evidence of ah accomplice has not probative strength to overcome the presumption of innocence. It must be aided by some other evidence. The court must decide whether corroborative evidence is present. The jury must decide whether such evidence is sufficient in connection with that of the accomplice to establish the offense beyond a reasonable doubt. The evidence of the accomplice segregated is impotent. Corroborative evidence may give it persuasive power. The confirmatory evidence furnishes a means for .testing the truth of the statements of the confessed criminal, and, if added to it, proof may result. Could the jury in the due administration of justice find a verdict of guilty in this case, if uninformed that the evidence of the accomplice unsupported was' powerless ? Evidence corroborative in some degree is found (I) in the acknowledged participation in the payment of the money, although for an avowed, lawful purpose; (2) in the statements and exclamations made to Heyser, the lawyer for Heene, after the latter’s arrest. Such evidence is assisted by inferences from the circumstances and nature of the act itself. Such evidence in a legal sense tends to corroborate, and it was the function of the jury to determine whether it did. corroborate Heene, and whether his evidence so helped amounted to requisite proof of guilt. By inadvertence and in absence of request or suggestion by the defendants counsel, the learned trial justice did not state, to the jury the law that made the evidence of Heene usable or not usable. The jury was not told that the evidence of Heene standing alone could not show a guilty purpose on the part of Kathan, and that there must be other evidence tending to show guilty purpose, and so found by them, which united to the evidence of the accomplice, if believed, established the crime beyond a reasonable doubt. Ho jury could intelligently answer the submitted question without advisement that the evidence of an accomplice has no intrinsic vigor unless energized by independent and credible evidence. This advice was omitted in a charge showing painstaking impartiality. Highly capable counsel silently acquiesced. Should this court decide that what was so overlooked by all concerned demands a new trial? Some of my associates are of the opinion that there was no corroborative evidence. I do not concur in such conclusion, but nevertheless here is judicial opinion that there was no corroborative evidence. In the light of such opinion how much the more important does it seem that the very question whether there was corroborative evidence should have been submitted to a jury. I think a new trial should be granted upon the ground that justice in its due administration in this case demands a verdict based upon proper instruction as to the use that may be made by the jury of the evidence of an accomplice.

Woodward, Jenks and Rich, JJ., concurred save as to the sufficiency of the corroborative evidence.

Burr, J. (dissenting):

I am constrained to record my dissent from the decision about to be made. It is undoubtedly true that when a person has been conicted of a crime this court may order a new trial if it be satisfied that justice requires it “whether any exception shall have been taken or not in the court below ” (Code Crim. Proc. § 527), but a defendant cannot claim as a matter of . right a review of errors to which no objection and exception has been taken. (People v. Jackson, 196 N. Y. 357.) The language of section 528 of the Code of Crimimal Procedure, which was under consideration in that case, and that of section 527, above referred to, is identical in this respect. It is true that the broad power given to this court by section 527 applies to every criminal case, while similar power is bestowed .upon the Court of Appeals by section 528 only when, the judgment is of death. But the case above cited was such a case, and the language of Chief Judge Cullen in delivering the opinion of the court seems to me peculiarly apt on this occasion. He says, referring to the rule that such review is not á matter of "right: “ The reason and justice of this rule is obvious. The most- learned and careful judge will at times during the trial of an action fall into an error which he would at once correct if his attention were called thereto. The purpose of an objection and exception is to call the attention of the judge to the ruling complained of, that he may correct the error if such it is. To permit the party to remain silent and suffer, the error to go unchallenged and claim, on an appeal from an adverse judgment the benefit of the error, as if objection and exception had been taken, would not conduce to the proper administration of justice nor tend to secure a fair trial for the defendant, but simply give him an opportunity to reverse on appeal a proper judgment.” It seems to me impossible for any one to read the record in this case and have the slightest doubt of the defendant’s guilt. Aside from other corroborating evidence, the conduct and acts of the defendant as testified to by him are inconsistent with any innocent purpose upon his part in placing money in the hands of the witness Heene. The controversy in respect to which it is charged that bribery was committed was not one between Wolf, the accused, and Haibele who was the victim of his criminal act. It was between the People of the State of Hew York on one side and the said Wolf on the other. If the only purpose of giving money to Haibele was to obtain a mitigation of sentence after a plea of guilty upon Wolf’s part, it was quite sufficient to- be able to show the court at that time that the money feloniously taken had been restored. After a plea of guilty, it was unnecessary to placate Haibele by paying him a sum in excess of that taken from him,, and it was a matter of indifference to the People of the State whether or not he wasfavorahly disposed toward the accused. The fact that a larger sum than was required to make restitution was given to Haibele is conclusive evidence to my mind that the purpose of it was to produce some effect upon him and secure from him some favorable consideration toward the man who had robbed him. In no othér way could he make such favorable consideration of any avail than in respect to the testimony which he might give upon the trial;

Justice is satisfied when a person accused of crime has a fair and impartial trial. If, upon such a trial, the evidence, of his guilt is overwhelming, justice does not require that an appellate court should go out of its way to scrutinize the record carefully to see whether any technical rule of law has not been complied with and to reverse a judgment founded upon, such evidence, if, perchance, one of such rules has been overlooked. In this case the accused was defended by one of the ablest counsel in the county. He may have thought, and very wisely too, that it was good policy not to have the attention of the jury called to the rule respecting the necessity of corroborative evidence lest, by so doing, their attention might be concentrated upon such evidence more strongly than it would otherwise have been. After having pursued that policy, if new counsel are to persuade an appellate court to reverse a perfectly just judgment because the trial court did not, of its own motion, refer to a well-known rule of law, it seems to me that a criminal trial ceases to be an inquiry after the truth and becomes instead a wit combat.”

Judgment of conviction reversed and new trial ordered. 
      
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