People v. O'Neill

• Decision Date: 10 April 1888
• Citation: 109 N.Y. 251,16 N.E. 68
• Parties: PEOPLE v. O'NEILL.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 251

16 N.E. 68

PEOPLE

v.O'NEILL.¹

Court of Appeals of New York.

April 10, 1888.

Appeal from general term, supreme court, First department.

Indictment of John O'Neill for bribery charged to have been committed August 29, 1884. Defendant was convicted, and appeals.

Roger M. Sherman, Peter Mitchell and Chas. W. Brooks, for appellant.

John R. Fellows, Dist. Atty., ( McKenzie Semple, of counsel,) for the people

ANDREWS, J.

In the case of People v. Jaehne, 103 N. Y. 182, 8 N. E. Rep. 374, it was held that the crime of bribery committed by a member of the common council of the city of New York, subsequent to December 1, 1882, was punishable under section 72 of the Penal Code. This construction necessarily involved the conclusion that section 100 of the charter of 1873, in force prior to December 1, 1882, being the bribery section of the charter, was repealed by the taking effect on that day of the Penal Code, so far as it was in conflict with any of the provisions of section 72. That section increased the punishment for bribery beyond that prescribed by the charter of 1873, and could therefore only operate upon the crime of bribery committed by a member of the common council after the Penal Code took effect. Section 72 is not retrospective in its terms, and, according to settled principles, is to be construed as prospective only. If a case should arise where the bribery charged was committed while section 100 of the charter of 1873 was in force, it would be necessary to consider whether such cases were reserved from the operation of the Penal Code. The alternative conclusion would be that the legislature, in repealing section 100 of the charter by the enactment of the Penal Code, had inadvertently omitted to except from the operation of the repealing statute cases of bribery committed by municipal officers in New York prior to its enactment. It will be time enough to consider the application and effect of the Penal Code upon such cases when occasion arises. Whatever conclusion might be reached on this point, section 72 of the Penal Code was in no sense an ex post facto law. It was a law governing future cases only, and, even if it purported to enact a rule applicable to past as well as future transactions, it would be void as to the former only. The cases are distinctly separable; and it is not the rule that the whole statute falls because one part is unconstitutional and void, unless the void part is so interwoven with the valid part that the parts cannot be separated, and the valid part sustained by itself, without defeating the intention of the legislature, leaving the statute in a form which, as an independent enactment, it can be inferred the legislature would not have passed. The difficult question in the Jaehne Case was as to the effect of the consolidation act, which took effect March 1, 1883, after the enactment of the Penal Code. The Penal Code, as was held, repealed section 100 of the charter of 1873, and section 72 became the law for the punishment of bribery as well in the city of New York as elsewhere in the state. But section 100 was re-enacted as section 58 of the consolidation act. The question was whether the section of the consolidation act, a later enactment than the Penal Code, did not restore the definition and punishment of bribery as declared originally in section 100 of the charter of 1873, and, in turn, repeal section 72 of the Penal Code, as applied to the city of New York, as the Penal Code had repealed the provision in the charter of 1873. The court decided that this result was prevented by section 2143 of the consolidation act, which declared in substance, that the Penal Code, for the purpose of construing the effect of the two acts, should be deemed the later enactment. The supposed incongruity of inserting in the consolidation act section 58, and then at the same moment making it subject to the Penal Code, thereby superseding it, is more apparent than real. The consolidation act was primarily designed to bring together the local laws relating to the city of New York, the crimes provisions as well as others; but, to avoid conflict with the Penal Code, the crimes provisions in the consolidation act were, in effect, subordinated to the provisions of the Penal Code. It was a precautionary policy, and relieved the authors of the consolidation act and the legislature from the necessity of a careful comparison of the provisions of the two statutes to ascertain whether they were in any respect in conflict.

The suggestion that section 2143 is in violation of section 16, art. 3, of the constitution, is without force. The section is germane to the title of the act, and is not the introduction of a new subject not within the purview of the act. We perceive no reason in the new suggestions of counsel for changing our conclusion in the Jaehne Case on the principal point there considered.

There are many questions which have been presented on the argument here in behalf of the appellant, arising on exceptions on the trial. They have been very fully considered in the able opinion of Judge VAN BRUNT. We concur in the conclusions of the general term, and shall confine ourselves to a brief reference to some of the questions pressed on our attention.

The practice followed in selecting the jury seems to have been that each juror, when called, was challenged by the district attorney in general terms, without the assignment of special grounds of challenge, and the juror was thereupon questioned by the district attorney, and afterwards by the counsel for the defendant. In the case of the examination by the district attorney, each juror was informed, in substance, that the people proposed to examine as witnesses two members of the board of aldermen of 1884, who had turned state's evidence, and who it was supposed would testify that they were engaged with the defendant in the transaction out of which the indictment arose, and was then asked in substance whether he had such a prejudice against persons so testifying as would prevent his giving their testimony such weight as it might be entitled to in law. The defendant's counsel objected to the question as improper, irrelevant, and immaterial. The court overruled the objection, and the defendant's counsel excepted, and the juror was permitted to answer. Section 376, Code Crim. Proc., defines as one ground of challenge to a juror ‘the existence of a state of mind on the part of the juror in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.’ The range of examination on such a challenge must largely rest in the discretion of the court; and we think it was competent to permit the district attorney to make the assumption stated in his question to the juror, and to follow it by the direct inquiry as to his state of mind in respect to witnesses in the situation of accomplices, with a view of ascertaining whether he would be a fair and unprejudiced juror for the people. This was fairly an examination bearing upon the impartiality of the juror ‘in reference to the case,’ within section 376. A somewhat similar question was considered by this court in People v. Carpenter, 102 N. Y. 239, 6 N. E. Rep. 584. But we think the record shows that the defendant accepted the jurors to whom the question was put who participarted in the verdict, and consented to their sitting. The court was not called upon to decide the challenge in any case except one, and in ...