
    The People, etc., Resp’ts, v. John O’Neil, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887)
    
    1. Criminal law—Jurors—Competency of—Actual bias. It is proper to inquire that it may be ascertained whether a juror has actual bias or not as to the existence of the state of mind on the part of the juror in reference to the case or to either party.
    2. Same—Evidence—Rule as to confession induced by promise of IMMUNITY.
    There is no rule of law to the effect that an accomplice is not a competent witness for the purpose of establishing the case against the defendant. The evidence obtained by a promise of immunity in the nature of a confession, cannot be used against the person confessing.
    3. Same — Indictment for agreeing to take a bribe — Evidence of TRANSACTIONS SUBSEQUENT TO THE DATE LAID IN THE INDICTMENT. From subsequent actions, a jury has a right to infer the existence of a pre-existing fact. For the purpose of showing a previous agreement in reference to the subject matter of the indictment, the people have a right to show a subsequent action of the defendant and his accomplict s which is consistent with the existence of the previous agreement, and from which the previous agreement might be inferred.
    4. Same — Unnecessary to prove the identity of the person promising.
    It is entirely immaterial, for the purpose of establishing the charge, that the identity of the person promising should be proved. It is sufficient if the agreement to accept a bribe is proved with some person, no matter whom.
    5. Practice—Charge to the jury—Expression of opinion by the court as to the evidence—Corrected by instructions.
    Where, on the charge to the jury, the court may have used expressions in reference to the evidence not entirely justified by the law, this is corrected by an instruction that the testimony is left entirely to the jury.
    6. Same—Evidence—Penal Code, § 714—Witness not disqualified by CONVICTION FOR PERJURY. Section 714 of the Penal Code seems to have reversed the law as it previously existed, .and provides that a man convicted of any crime is a competent witness in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony. This provision makes it competent for a witness, although having been previously convicted of perjury, to go upon the stand and testify.
    
      7. Same—Testimony of an accomplice—What evidence necessary to CORROBORATE.
    The nature of the corroboration, where a conviction is sought upon the testimony of accomplices, varies somewhat from a case in which conviction is sought upon the confession of the defendant. A conviction cannot be had upon the confession of a defendant without additional proof that, the crime charged has been committed. In the case of a conviction upon the testimony of an accomplice, there must be other evidence tending to-connect the defendant with the commission of the crime.
    Appeal from judgment of the court of oyer and terminer convicting the defendant of the crime of bribery.
    
      Charles W. Brooks and Peter Mitchell, for appTt; Delaney Nicoll, for resp’ts.
   Van Brunt, P. J.

Various grounds of error have been assigned by the defendant upon appeal, grounds relate to the method of the examination of jurors as to their competency, to the admission of evidence, to the denial of motions to strike out evidence, and to the charge of the court.

It is urged upon the part of the defendant that the only inquiry as to the competency of jurors which can be made, relates to the fact as to whether they stand indifferent as between the people and the defendant, and that the peculiar nature of the evidence upon the part of the prosecution, or of the defense upon the part of the defendant cannot be called to the attention of the juror for the purpose of ascertaining whether in view of such evidence or such defense the juror is without bias.

It does not seem at all necessary to discuss this proposition in view of the decision of the cout of appeals in the case of the People v. Carpenter (102 N. Y., 239; 1 N. Y. State R., 648), where the existence of the state of mind on the part of the juror in reference to the case or to either party, is expressly held to be a proper subject of inquiry in order that it may be ascertained as to whether the juror has actual bias or not.

It was claimed upon the part of the defendant that the court erred in denying the motion to strike out the testimony of the witness Fullgraff upon the ground that such testimony was in the nature of a confession and was induced by the promise of immunity and was therefore incompetent and inadmissible.

It is undoubtedly true that a confession induced by promise of immunity and reward cannot be introduced in evidence as against the party making the confession. But no rule of law has yet been established to the effect that an accomplice is not a competent witness on behalf of the prosecution for the purpose of aiding in establishing the case against the defendant. The testimony of Fullgraff was in no sense a confession. It was his deliberate statement upon the stand. He was being examined as a witness, and as a witness he testified. It is undoubtedly true that under the circumstances of the case his evidence could not be used as against himself; but it is difficult to see why his evidence was not competent as against the persons who were engaged with bim in the commission of the crime for which the defendant was indicted.

It would seem from the authorities cited in support of this proposition by the learned counsel for the defendant that they have misapprehended the distinction between the evidence of a confession and evidence in chief. The testimony of Fullgraff as has already been said was in no respect a confession. It was the testimony of a witness given upon the stand voluntarily. It is true that Fullgraff might have refused to answer the questions put to him upon that he might criminate himself, but answering the ground as a witness, his evidence was entitled to go to the jury to be given by them such weight as th@ evidence itself and the character of the witness justified.

The objection to the evidence of Charles B. Waite seems to be without force because his evidence as far as objected to was entirely immaterial and in no respect could have possibly injured the defendant. The claim that such exception covers the entire evidence as to what Maloney did at the office of the Broadway Railway Company, and at the office of the counsel of that company cannot be sustained, because the exception did not pretend to extend its effect any further than to the questions which had previously been asked, and to which the exception had specifically been taken.

The objection to the evidence of C. B. Alexander is equally without force because his testimony related to the statement of a suit to which the defendant O’Neill was a party. The defendant was one of the aldermen of the city of New York, and the mayor, aldermen and commonalty were parties to that litigation. The injunction granted in that action restrained them from acting, and immediately upon the settlement of the litigation, the defendant appeared at the meeting and voted. It is to be presumed that he must have heard of the dissolution of the injunction rather than to assume that by his action he intended wilfully to violate the order of the court. O’Neill being a party to this litigation all evidence of its conduct and management was competent, and if he desired to show that he was not aware of those steps being taken, in the litigation to which he was a party, it was for him to show his ignorance.

It is further urged that the court erred in admitting evidence of transactions subsequent to August 30, 1884, the date laid down in the indictment as that upon which the offense is alleged to have been commuted. It is a familiar rule of evidence that from subsequent action a jury has a right to infer the existence of a pre-existing fact. For example, the declarations and conduct of two men may be received in evidence for the purpose of showing that at some prior date an agreement of copartnership was entered into between them. So in the case at bar, for the purpose of showing the previous agreement in reference to the subject matter of this indictment the people had a right to show the subsequent action of the defendant and his accomplices wMch was consistent with the existence of the previous agreement, and from which the previous agreement might be inferred; because upon proof that a man has taken a bribe it will not be difficult to infer that he had agréed to be bribed.

The claim made upon the part of the defendant’s counsel that there was no proof establishing the crime such as the law requires before a conviction could be properly had upon this indictment, seems to be founded upon the fact that there was no proof in the evidence other than Jaehne’s assertion that the Broadway Surface Company offered $500,000 for the franchise, and there being no proof of authority for any such statement, nor suggestion of any communication emanating from the company, and that therefore no inference could be drawn that any such offer had been made upon the part of the Broadway Surface Company, but rather that it was an attempt on the part of some of the aldermen to form a combination for the purpose of compelling, illegally and corruptly, the payment of money to them, and that this pretense of an offer was a part of their scheme to collect money from these railroads, and that they sought to secure the co-operation of the"” fellows through the means of these representations.

It seems when we consider the nature of this meeting, the object for which it was called together, the circumstances surrounding the parties, and the statements which were made in regard to the offers of the various rival companies, that each one of these men who participated in this meeting understood these statements to be made by and with authority at the time they were made; and that their agreement to accept the $500,000, being $22,000 a piece for each of their votes, was understood between these parties to be the acceptance of a bona jide offer for the purchase of their votes, especially taken in connection with the discussions at the subsequent meeting at which a treasurer was appointed, and the meeting at which the amount to be received was reduced in consequence of certain expenses which were required to be paid out of the money. The fact that Jaehne was authorized to make this proposition seems to be reasonably well established, when we consider the evidence showing that some of these conspirators received the sums of money which fell to their share upon a division of the sum agreed to be paid.

It is urged that there was no proof of a mutual agreement between these parties. But it is difficult to understand how such large sums of money could be paid as was established by the evidence in this case unless somebody had agreed to pay them. It is entirely immaterial, for the purpose of establishing the charge as against this defendant, that the identity of the person promising should be proved. It is sufficient if the agreement to accept a bribe is proved with some person, no matter whom.

The objection to the exclusion of testimony as to the views of property holders and tax-payers in respect to the policy of the building of a Broadway road is not well taken. The crime of bribery is just as much proved by showing that the officer bribed does his duty under the influence of. a bribe, as though he was shown to have violated his duty under the same influence. In every case in which it could be shown that the opinion of the tax-payer or property-owner was communicated to the defendant, such evidence was admitted, but only in those cases where no such communication was proved were the opinions of the witnesses in this regard excluded.

It becomes now necessary to consider an exception to which the attention of the court was directed, and which seems to have been inserted in the- points expressly to mislead the court. In the tenth point the learned counsel say that the court erred in excluding the testimony of the defendant as to his object and purpose in voting for the granting of the franchise to the Broadway Surface Railroad Company. In support of this proposition the attention of the court is called to the pretended fact that the defendant during the course of his examination, had in reply to certain inquiries said that he had voted twice in the board of aldermen in favor of granting such franchise, and that thereupon he was asked the following question: “Will you state the object and purpose of your voting upon each of these occasions ?” and this question was objected to, the objection sustained, and an exception taken.

The counsel then say: “ Surely nothing could be more pertinent to the inquiry under the indictment than this evidence. The corrupt motive of the defendant in giving this vote upon this franchise was the most material allegation of the indictment. The jury were charged to investigate it as they were compelled to any other fact in the case, who as matter of fact could describe and inform them as to such motive better than the defendant ? He certainly had the right to explain and characterize his motive. The jury might or might not believe him. The evidence certainly was competent. Its weight was for the jury to determine, and the court erred in excluding it.”

It is thus apparent that the intention of the counsel was to convey to the mind of the court the impression that the defendant had been prevented from explaining and characterizing his motive in voting for the granting of this franchise to the Broadway Surface Railroad Company. When this exception was presented by the counsel in his argument and upon his points, it struck the court as being one of great magnitude and possibly of grave error.

Upon an examination of the record, however, it will be seen that this question had not the slightest relation to any such subject; and that in a subsequent part of bis examination the witness was asked this question •

“ Will you be kind enough to state to the jury what your reason was in casting your vote m favor of the franchise referred to ?” which question was answered at length by the witness, he giving a full explanation of the motives which induced him to cast his vote for the franchise.

The exclusion of the evidence to show the financial condition of the defendant, the sources of his income and his income, and where his customers resided along the line of the road, and his financial condition during the years 1884 and 1885, in detail, was not error. The condition of the defendant’s business, the character of his customers, the sources of his income, could reflect no light upon the question which was being investigated by the jury. If there had been any claim upon the part of the people that this defendant had exhibited any sudden increase of wealth then this evidence might have been competent for the purpose of accounting for whatever money he might be possessed of.

Various exceptions were taken to the charge of the court in reference to the weight to be given by the jury to the evidence of Fullgraff and Duffy. These exceptions it is not necessary to consider in detail. Even though the learned court during the course of his charge may have used expressions in reference to this evidence which were not entirely justified by the law, upon the attention of the court being called to this language by the taking of exceptions the court distinctly instructed the jury that he left it entirely to them what to do with the testimony in question. And thereafter the contention of the counsel for the defendant upon the subject of this evidence was entirely devoted to the establishment of their right to have the court charge that the jury, in consequence of the different statements which Eullgraff and Duffy had made in respect to this matter under oath, must disregard their testimony. This the court refused to do, and rightly so. Whatever may have been the rule in relation to the credit to be given by a jury to the testimony of a witness whom they find to have sworn falsely in reference to the subject matter under examination, prior to the provisions of the Penal Code, it is no longer the right of a party to have the jury charged that the evidence of such witness must be rejected. That rule was entirely applicable to the condition of the rules of evidence at a time when a conviction for perjury rendered ineligible as a witness the person so convicted. But section 714 of the Penal Code seems to have reversed the law as previously existing, since it provides that a man convicted of any crime is a competent witness in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony. This provision makes it competent for a witness although having been previously convicted of perjury to go upon the stand and testify. Such evidence goes to the jury, and cannot be taken from their consideration by the court, although the conviction may be proved for the purpose of affecting the weight of such testimony.

In the case at bar, therefore, although Fullgraff and Duffy had in another proceeding given testimony different from that which they gave upon the trial of the defendant, they were not incompetent witnesses. Their evidence could be considered by the jury, their credibility, however, being affected by the fact of their having previously testified differently.

It is true that in the case of the People v. Petmecky (99 N. Y., 421), the language of the court might seem to justify the adherence to the rule existing previous to the change in respect to the disqualifying effect of a conviction for perjury. But as the question was not considered by the court it cannot be held to have been adjudicated upon. The learned court, therefore, having left the whole question entirely to the jury as to what weight they would give to this testimony of Fullgraff and Duffy, did all that it was required to do by reason of any exception which was taken upon the part of the defendant’s counsel

The exception to the charge of the court in respect to the evidence of Katie Metz, seems to be based upon the ground that the instructions of the court to the jury were that they might consider whether her evidence did. or did not tend to corroborate the testimony of Fullgraff and Duffy, not only that meetings were held at McLoughlin’s house, but that they were of the corrupt character testified to by them. This is evidently a forced construction of the language used.

It was not the intention of the court to instruct the jury that anything that Katie Metz could testify to, corroborated Fullgraff and Duffy as to what transpired at the meetings themselves, but simply that it corroborated them as to the fact of the holding of the meetings, which they, Fullgraff and Duffy, had testified to as being of the corrupt character specified. This was the clear meaning of the proposition of the court; and it was undoubtedly so understood by the jury, as there was no pretense that the witness Katie Metz knew anything as to what transpired at these meetings, the whole purport of her testimony being to show that meetings were held, not to prove what occurred at those meetings.

The claim of the defendant’s counsel that the court erred in refusing to charge what particular weight was to be given to particular parts of the testimony, is not well taken; because the court was required only to give the jury instructions upon legal propositions, and not as to the weight which they should give to isolated portions of the testimony.

The only remaining exception to be considered is that in regard to the question of corroboration; and in view of the decision of the court of appeals in the case of the People v. Jaehne (103 N. Y., 182; 3 N. Y. State Rep., 11), this question does not seem to be open for discussion.

It is that the nature of the corroboration where a conviction is sought upon the testimony of accomplices varies somwhat from a case in which conviction is sought upon the-confession of the defendant. But it would seem that the corroboration in the former case might be of a less substantial character than the latter. A conviction cannot be had upon the confession of a defendant without additional proof that the crime charged had been committed.

The evidence in the Jaehne case was held by the court of appeals to contam additional proof that the crime charged had been committed, and therefore the conviction upon the confession of the defendant was upheld. 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. The distinction between the two matters of corroboration is apparent. In the case of a confession there must be additional proof that the crime had been committed. In the case of a conviction upon the testimony of an accomplice, there must be other evidence tending to connect the defendant, with the commission of the crime. The corpus delicti cannot be entirely established by a confession but it may by the testimony of an accomplice; and therefore, if there was corroborative evidence in the case of Jaehne tending to show that the crime with which he was charged had been committed, there was certainly evidence in the case at bar other than that of Fullgraif and Duffy tending to connect the defendant with the commission of the crime because the evidence in the case of Jaehne other than his confession which proved that the crime-charged had been committed necessarily included all the-persons engaged in the commission of that crime with it.

It would therefore seem to be entirely unnecessary in view of the decision of the court of appeals in that case to-discuss the proposition as to whether there was the additional proof connecting the defendant with the commission, of the crime which the statute requires.

The judgment appealed from should be affirmed.

Brady and Bartlett, JJ., concur.  