People v. Sharp

• Decision Date: 29 November 1887
• Citation: 107 N.Y. 427,14 N.E. 319
• Parties: PEOPLE v. SHARP.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 427

14 N.E. 319

PEOPLE

v.SHARP.

Court of Appeals of New York.

November 29, 1887.

Defendant appeals from a judgment of the general term of the supreme court in the First department affirming a judgment of the court of oyer and terminer in the city of New York, entered upon the verdict of a jury which was rendered against him upon the twenty-ninth day of June, 1887, convicting him of the crime of bribing a member of the common council in the city of New York, and denying motion for a new trial in arrest of judgment, and to set aside the indictment.

The indictment, which was found on the nineteenth day of October, 1886, contained but one count. After reciting that on the thirtieth of August, 1884, there was pending before the common council in the city of New York a certain petition and application of the Broadway Surface Railroad praying for the consent and permission of the common council to construct and operate a railroad on Broadway, in the city of New York, the indictment proceeded to charge, in the language of the statute, that while the said petition was so pending as aforesaid, and on the said thirtieth day of August, 1884, the defendant Sharp and other persons named in the indictment as defendants did give and offer, and cause to be given and offered, to one Ludolph A. Fullgraff, then a member of the common council in the city of New York, the sum of $20,000 in money, and a promise and agreement therefor, with the intent to influence him in the exercise of his powers and functions as such member of the common council, upon and concerning the said petition and application of the said the Broadway Surface Bailroad. The defendant pleaded not guilty, and demanded a separate trial, as a result of which he was convicted.

Upon defendant's appeal, the following assignments of error were upheld by the judgment of the court of appeals: (1) That the trial court admitted evidence given by the defendant before a committee of the state senate which had been ordered to inquire into the circumstances attending the grant of a franchise to operate a railroad upon Broadway to the Broadway Surface Railroad Company; (2) evidence given by one Pottle, a reading clerk of the assembly, who testified to an attempt made by the defendant in the year 1883 to induce him to falsify and alter the terms of a general surface railroad bill which had been passed by the legislature; (3) that the prosecution asked a witness, (Miller,) who had been a member of the board of aldermen in the year 1884, what ‘he thought’ induced one of the persons indicted to give him the sum of $5,000 after he had voted for the grant of the franchise in question; and (4) proved that certain persons whom the state had attempted to serve with subpoenas, and some of whom were joined in the indictment against the defendant, had fied to Canada. Upon all these questions the decision of the general term was adverse to the defendant.

The committee before which defendant gave the testimony referred to was appointed by virtue of a resolution passed January 26, 1886, of which the following is a copy:

‘Whereas, the constitution and the statutes provide that there shall be no street railroad constructed or operated in or upon any street without (among other requirements) the consent thereto first having been obtained of the local authorities having control over such streets, or the portion thereof upon which it is proposed to construct and operate such a railroad; and whereas, it has for some time been charged, and is now being continually charged by the New York papers, without regard to politics, and with an accord and earnestness almost unprecedented, that the consent above referred to was obtained for the construction and operation of the railroad now in operation in and upon Broadway in said city through fraud, and by and through corrupt influence and bribery of such authorities; and whereas, ‘the local authority’ having control over said Broadway, and which granted the right and gave the consent referred to in said alleged corrupt manner, was the aldermen of said city; and whereas, a strong and reputable sentiment in New York city demands at the hands of the senate an investigation of the methods in obtaining such consent: now, be it therefore resolved, that the railroad committee of the senate be, and hereby is, authorized by the senate to investigate fully all matters relating to the methods of either the Broadway Surface Railway Company, or of any other person or corporation, relating to or in obtaining such consent, and also to investigate fully the action of the board of aldermen of said city, which granted or gave the same in respect thereto, or of any member thereof who voted for the same in respect thereto; and said committee is hereby given full power and authority to prosecute its investigation in any and all directions in its judgment necessary to a full and complete report to the senate as to all matters relating to the granting of said consent, and the influences and inducements which led thereto. Resolved, that said committee report to the senate in relation to said matter, with such recommendations as in its judgment the public interest may require, and particularly as to the policy of an amendment to the constitution vesting the power to grant such consent in some other authority than as at present provided; that said committee is hereby given full power and authority to send for persons and papers; also to employ a stenographer, and such counsel, accountants, and experts as it may deem necessary to the accomplishment of its said work. It is further empowered to hold its sessions in the city of New York, and conduct its investigation there. The committee shall conclude its investigation in time for report to the present senate on or before April 15, 1886. The sergeant-at-arms of the senate shall at all times attend said committee, and serve all subpoenas issued thereby, and perform any and all duties as sergeant-at-arms of said committee.'

The following is the section of the Penal Code under which defendant contended that his evidence given before the senate committee was privileged:

‘Sec. 79. Offender a competent witness, and to escape prosecution. A person offending against any provision of any foregoing section of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation in the same manner as any other person; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the persons so testifying. A person so testifying to the giving of a bribe which has been accepted shall not thereafter be liable to prosecution, indictment, or punishment for bribery, and may plead or prove the giving of the testimony accordingly in bar of such indictment or prosecution.’

It was error to admit the evidence which had been given before the committee of the senate. The occasion was within the protection afforded by section 79 of the Penal Code to testimony given ‘at any trial, hearing, proceeding, or investigation.’ The words are the most comprehensive that could be used. The occasion was strictly an ‘investigation;’ and it matters not whether the clause means a person testifying upon an ‘investigation,’ simply, or one testifying against another person upon an ‘investigation.’

The resolution empowering the investigation recites (1) the necessity for the consent of the local authorities to the construction of a street railroad; (2) the charge that such consent in this case was obtained ‘through fraud, and by * * * bribery of such authority; (3) that such authority was the aldermen of New York; (4) that an investigation was demanded, and the railroad committee were directed to investigate the action of the aldermen, ‘and the influences and inducements which led thereto.’ The investigation being directed against the aldermen upon an explicit charge of bribery, the defendant was ‘a witness against another person so offending.’ He was also ‘a person offending against’ the provisions of the Code ‘relating to bribery,’ and it is attempted to use his testimony against him as such. The matter is therefore brought exactly within the letter of the statute. But the defendant has a right to the full letter of the statute.

Everything in favor of the liberty and the security of the citizen and the protection of the individual is to be liberally and comprehensively interpreted. Potter's Dwar. St. 49; Lieb. Herm. c. 5, (16th Ed. 1880,) p. 134; People v. Kelly, 24 N. Y. 74, 81, 82;Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524.

The popular or received import of words is to be used in the interpretation of statutes. Potter's Dwar. St. 143; Chamberlain v. Transportation Co., 44 N. Y. 305, 309;Maillard v. Lawrence, 16 How. 251. And the popular or received import of the word ‘investigation’ is a legislative investigation.

This is a remedial statute, and must be construed liberally and beneficially, so as to defeat the mischief and advance the remedy. The mischief here was the defeat of investigations by witnesses asserting their privilege. The remedy was to remove the privilege; saving the witness' constitutional rights by giving him other protection. The statute does this by providing that the evidence shall not afterwards be used against him.

By the common law of England a witness before a committee of parliament had no privilege whatever, but his evidence could not be used against him anywhere. Hans. (2,) xviii. 968-974; Id. (2,) xxiii. 1197, 1198. Such is the common law of New York to-day, and that it was not unrecognized by the legislature is shown by the fact that Laws 1869, c. 742, § 8, applied the rule to a legislative committee in certain bribery investigations.

The previous use of the word ‘investigation’ in the New York statute shows that a legislative investigation was...