
    The People of the State of New York, Respondent, v. Suffolk Contracting Company and Others, Appellants.
    Second Department,
    February 11, 1916.
    Crime — conspiracy to defraud State—improper construction of State road—evidence not justifying conviction.
    Appeal from a judgment convicting the defendants, a corporation and its officers and agents, of the crime of conspiracy as defined in subdivision 4 of section 580 of the Penal Law. The defendant corporation had a contract with the State for road building and it was charged that its officers and employees, together with an employee of the State Engineering Department, conspired to defraud the State by not constructing the road according to specifications, etc. Evidence examined, and held, insufficient to sustain the conviction of certain of the defendants.
    In order to establish a violation of said statute there must be a corrupt agreement between the defendants, and this may be established by ch'cumstantial evidence.
    Appeal by the defendants, Suffolk Contracting Company and others, from a judgment of the Supreme Court in favor of the plaintiff, rendered against them on the 18th day of April, 1914, convicting them of the crime of conspiracy.
    
      Willard N. Baylis \Uarry H. Reeve with him on the brief], for the appellants Suffolk Contracting Company and others.
    
      William J. Lewis [Daniel McNamara, Jr., with him on the brief], for the appellant Fred. J. Kinney.
    
      Rowland Miles, for the appellant Leigh Robartes.
    
      Ralph C. Greene, District Attorney [Peter P. Smith and Le Roy M. Young with him on the brief], for the respondent.
   Per Curiam:

The defendants were indicted for and convicted of the crime of conspiracy. The definition of the statute alleged to have been violated is: “If two or more persons conspire: * * * To cheat and defraud another out of property, by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property by false pretenses; * * * Each of them is guilty of a misdemeanor.” (Penal Law, § 580, subd. 4.) It was alleged that the design was to cheat the State. The means by which that design was to be accomplished were that a corporate construction contractor, which had a contract for road building, was to omit a substantial amount of required gravel; State officers were to accept the work as a complete performance, and the contractor was to collect the full contract price. Of course, if an agreement was made to accomplish that design by those means, it was a plain violation of law.

The gravamen of the offense is the combination. The offense is complete upon proof of the unlawful agreement and of an overt act, done to effect the object thereof, by one or more of the parties to the agreement. (People v. Sheldon, 139 N. Y. 251, 264; People v. Flack, 125 id. 324, 332; Penal Law, §§ 580, 583.) It may be admitted at this point that if a corrupt agreement was proved, there was ample proof of acts done to effect its object by persons charged as participants, and that some of those acts were alleged in the indictment.

There was no direct evidence of a corrupt agreement between any of the defendants. Such evidence is seldom available without the aid of a confession or an informer. The unlawful agreement and the necessary criminal intent may be proved by circumstantial evidence. These essentials of the crime may be established, the court say in People v. Flack (supra), “by inference, as a deduction from conduct which discloses a common design on the part of persons charged to act together for the accomplishment of the unlawful purpose.” When the quality which makes this evidence probative inheres in it, it is quite as satisfactory and conclusive as direct proof.

In People v. Bennett (49 N. Y. 137, 144) the Court of Appeals say: “In determining a question of fact from circumstantial evidence there are two general rules to be observed: 1. The hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all. 2. The evidence must be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offence imputed to him, or, in other words, the facts proved must all be consistent with and point to his guilt not only, but they must be inconsistent with his innocence.” And again (p. 148): “Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but from the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers 'it has any concern. (Bur. on Cir. Bvi. [2d ed.] 296.) It is in cases of proof by circumstantial evidence that the motive often becomes not only material, but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case. ”

In People v. Razezicz (206 N. Y. 249, 273) the court say: “In a criminal case circumstantial evidence to justify the inference of guilt must exclude to a moral certainty every other reasonable hypothesis. Circumstantial evidence in a criminal case is of no value if the circumstances are consistent with either the hypothesis of innocence, or the hypothesis of guilt; nor is it enough that the hypothesis of guilt will account for all the facts proven. Much less does it afford a just ground for conviction that unless a verdict of guilty is returned, the evidence in the case will leave the crime shrouded in mystery.” Again (p. 272): “ Circumstantial evidence as has been frequently remarked is unsatisfactory, inconclusive and dangerous, or satisfactory, conclusive and safe according as it points to a certain result and is not inconsistent with any other result or conclusion.”

In People v. Fitzgerald (156 N. Y. 253, 258) the court say: “In attempting to prove a fact by circumstantial evidence there are certain rules to be observed that reason and experience have found essential to the discovery of truth and the protection of innocence. The circumstances themselves must be established by direct proof and not left to rest upon inferences. The inference which is to be based upon the facts and circumstances so proved must be a clear and strong logical inference, an open and visible connection between the facts found and the proposition to be proved.”

We are not concerned with facts which may show one or more of the defendants to be guilty of independent crimes unless those facts tend to connect them with the commission of the crime charged in the indictment. The crucial question is, Is' there sufficient evidence to prove a conspiracy between any two or more of the defendants ? If this question is answered in the negative, the conviction falls.

The defendants convicted are the contractor, Suffolk Contracting Company, a corporation; Lynch, its president; Huber, an engineer in charge of the work for the contractor and a stockholder in it; Scanlon, a foreman; Kinney, who supervised in the latter stage of construction a small section of the work for the contractor, in which he was a stockholder; Eobartes, an engineer in the employ of the State, who was immediately assigned to. the work and was charged with the duty of actual supervision; Stewart, a State engineer, in charge of one of the six divisions into which the State was divided. (See Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], §§ 16, 17.) Among Stewart’s duties, prescribed by statute, are: “He shall, * * *. 3. Examine and inspect, or cause to be examined and inspected, the work performed on any highways, and report to the Commission as to whether the work has been done in accordance with the plans and specifications and contracts made therefor. 4. Approve and certify to the monthly estimates or allowances for work being performed under any contract let for the construction, improvement or maintenance of State and county highways. 5. Inspect, or cause to be inspected, all State and county highways, and report from time to time in respect thereto, when required by the Commission. 6. Consult with district, county and town superintendents and other highway officers in respect to the proper methods of constructing, improving and maintaining highways and bridges.” (Italics ours.) (See, also, Id. §§ 16, 17, as amd. by Laws of 1911, chap. 646.)

It will be perceived that he may perform some of those duties himself or cause them to be performed by others. There was no evidence that either Stewart or Eobartes had any pecuniary or other motive to be faithless to his duties. There was no proof of any general or special connection between either of them and the corporate defendant or its representatives. The deficiency in the supply and use of the material required by the contract specifications, while very substantial, was not so flagrant as to be manifest by bare inspection. The People’s expert witnesses, who made examination after completion for the purpose of testifying, were required to make borings at given points along the line of construction to give evidence of departure from the specifications. The county superintendent and the supervisor of the town in which the road was situated officially certified, as required by law, that they examined the road and found its condition satisfactory. Stewart’s office was in White Plains, Westchester county, miles distant from the work. He certified to work done and materials furnished after Eobartes had certified the same result to him. He was seldom at the place of the work. In the nature of things he could do little more than rely on the reports of Eobartes, who was assigned to the work of actual supervision. It was the duty of Eobartes to be on the work and to be competent and reasonably careful. He could have, by competent vigilance, detected the deficiency. He signed certificates of performance. There was some evidence that in a few instances Eobartes had knowledge of a concrete departure from the specifications. Throughout the record we do not find on the part of Eobartes, aside from the acts and omissions recited, any word or act indicative of concert or agreement between him and the other defendants. The evidence against Eobartes may establish neglect of duty, inefficiency or indifference; it may arouse curiosity and invoke suspicion; but there is no proof of one fact or series of facts that points with moral certainty to the participation of either Stewart or Eobartes in a conspiracy.

Lynch was president of the corporate defendant. He signed the contract and the certificates of performance. He had in the payments the pecuniary interest of a stockholder.- He was unskillful and inexperienced as a road builder. He was at the place of the work occasionally but had nothing to do with the construction. He chiefly occupied himself with the money matters of the corporation. He purchased materials. There was no proof that he purchased substantially less than was required or that he had actual knowledge of a deficiency in the material used or of any defect in construction.

Kinney is an engineer and is familiar with highway construction. He was a stockholder in the defendant corporation. On behalf of the corporate defendant he supervised the con-struction of a small section of the road at the last part of construction. Most of the work had been done when he came to supervise. When employing Perry, a laborer, who was a witness, he told him to obey McVey. McVey put the laborer to work. Perry saw dirt put on the road. He put some on. He got it from the side of the road. McVey told him to put it on. Dirt should not have been used in the construction. A witness, Horton, had a conversation with Kinney. He said to Kinney: I think you are in a hurry to get through. * * * It is getting cold weather.” Kinney replied that he was; that he hoped they would finish by fall. He added that there was not much in building State roads just now; he would have to give up from headquarters down to the supervisor to get a job.” This is the evidence which it is asserted involves him.

Huber was the engineer of the defendant corporation, in which he was a director and stockholder. He was experienced. He was familiar with the contract and its specifications. Most of the work was done under his supervision. He was on the work every day. When spoken to by one Beck concerning the construction, he said he did not care how long the road would last so long as he got out of town. He had actual knowledge of some substantial departures from the specifications.

Scanlon was a foreman, employed by the corporate defendant.. He was in charge of the laborers and teams. He had no interest in the earnings of the corporate defendant. He had some experience as a foreman. The evidence claimed to involve him is: Bianco testified that there was a block in the center of the road to indicate the height of the stone. Scanlon took the block away, and the inspector said, when told of it, that he would quit the job. The block was replaced. Just around the block the stone was made level with it, but not in some other place. There were places on the road where there were not more than three inches of gravel. Walker testified that Eobartes put two stumps in the road, but when his back was turned Scanlon pulled them out quickly and put tar on. Beck testified that sand was shoveled on the road in some places. The sand was taken from alongside the road. This sand should not have been used. Scanlon was present when this work was done. Scanlon did not do it himself; he had the men do it. Brockman testified that after some of the larger stones had been put on the road Scanlon put a little dirt over them, taking it from the side of the road, and rolled them down. McMullen testified that Scanlon was most of the time in charge of the gang that put sand and loam over the first and second coats.

Huber doubtless was actively engaged in defrauding the State and he had an interest in so doing, but we think that the evidence does not prove beyond a reasonable doubt that that which the other defendants did or omitted to do was the result of a conspiracy to accomplish that purpose. There is no evidence that Stewart, Eobartes or Scanlon had any motive to commit the crime charged. Lynch and Kinney had a motive, but the acts and omissions of these five are at least as consistent with innocence as with guilt of conspiracy. The evidence, therefore, in a case in which it is sought to establish guilt of crime wholly by circumstantial evidence, is insufficient, and the judgment should be reversed and a new trial ordered.

Jenks, P. J., Oarr, Stapleton, Mills and Kich, JJ., concurred.

Judgment of conviction reversed and new trial ordered. 
      
       See Highway Law, §§ 15, 16,17, as since amd. by Laws of 1913, chap. 80. — [Rep.
     