People v. Mills

• Decision Date: 26 April 1904
• Citation: 178 N.Y. 274,70 N.E. 786
• Parties: PEOPLE v. MILLS.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 274

70 N.E. 786

PEOPLE

v.MILLS.

Court of Appeals of New York.

April 26, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

George E. Mills was convicted of an attempt to commit grand larceny in the second degree and of an attempt to commit the crime of willfully removing public documents from the custody of the officer to whom they were conveyed by law. From an order of the Appellate Division (86 N. Y. Supp. 529) affirming the judgment, he appeals. Affirmed.

The indictment against the defendant contains two counts, each charging an attempt to violate a distinct section of the Penal Code; the first being founded on section 94, and the second on section 531. The facts appearing on the trial, as well stated by the Appellate Division, are as follows:

Richard C. Flower was a physician, and was also engaged in promoting certain mining interests. In connection with such enterprise he was indicted under six different indictments for alleged larcenies, and was also suspected of being implicated in the suspicious death of one Hagaman, which case the district attorney was investigating shortly prior to the offenses charged in the present indictment. Francis P. Garvan, an assistant district attorney of the county of New York, had special charge of the prosecution of the indictments against Flower, and also of the investigation of the death of Hagaman. The defendant was a lawyer, engaged in the practice of his profession in the city of New York with a son of Richard C. Flower, and he was also interested in various mining companies in connection with Dr. Flower and Andrew D. Meloy and others at the time when the indictments were found against Flower, and when he was being otherwise investigated, and he took a very lively interest in Dr. Flower's behalf.

It appeared from the testimony of Meloy: That he was president and a member of the board of directors of the Lone Pine Mining Company, of which board the defendant was a member. That on Saturday, March 28, 1903, at a directors' meeting of this mining company, the defendant called attention to the prosecution against Dr. Flower, and stated that it was having a bad effect upon the company. That he thought Garvan was persecuting Flower. That the ends of justice were not being promoted, and he expressed a wish that the directors should pass some resolution asking Garvan or the district attorney's office to discontinue the attack upon Flower. Such resolution, however, was neither adopted nor offered. On the next day Meloy testified that he received a telephone message from the defendant, asking him to meet him on Riverside drive, about Eighty-Fifth or Eighty-Sixth streets. That he met him there alone; had a conversation with him, in which he spoke of Flower's increasing difficulties, about his counsel, what they had done, and what his anxieties and fears were. He discussed Garvan and the latter's attitude to the case, and asked Meloy if he would not make an engagement with Garvan so that the defendant could see and have a talk with him, and see if the prosecutions could not be stopped; and there was some conversation about the money which had been paid for counsel, and that, if it were given to Garvan, it would accomplish greater results. The defendant finally said: “I will not give Hart any money, or any lawyer. * * * I know the head of this thing, and I am going to give what money I give to Garvan. * * * What I want to do is to get in contact with Garvan, and I want you to do it for me.' * * * When he said he wanted to get in contact, I asked him if he knew what he was doing-what he was about. He said he thought he did. Then I said the same general remark-‘Be careful.’ At the end of the conversation I left Mr. Mills, and stated I would see Mr. Garvan the next day, and make an engagement.' Meloy further testified that he asked the defendant why he did not get in touch with Garvan himself, and in reply the defendant stated, in substance, ‘that if he came himself, Mr. Garvan would be afraid, but that you could arrange it for him.’ Meloy then parted from the defendant with the understanding that he was to see Garvan, and make an appointment for him the next day. Meloy, however, took an entirely different course. The next day he consulted with his own counsel, telling him what had occurred. Thereupon his counsel and himself interviewed Garvan over the telephone, with the result that the three had a meeting in the afternoon, and the whole matter of the conversation was stated to Garvan, after which Mr. Jerome, the district attorney, was brought into the conference, and informed of what had taken place. Jerome testified that on the next day after the conference he communicated with Detective Sergeant Brindley, and gave him directions concerning the case, as a result of which he was to put himself into communication with the defendant for the purpose of detecting him in the commission of any crime which he might commit or attempt to commit. Meloy had no communication with Brindley, but the latter called him up on the telephone for the purpose of making arrangements by which he could meet the defendant. Meloy then saw the defendant, and informed him that he had seen Garvan and made arrangements for him to meet Garvan's wardman, Brindley. The defendant demurred to this, stating that he wanted to meet Garvan. Meloy told him that Garvan would not do business with him directly, but that he would have to do it with Brindley, and thereupon the defendant consented to see him; and Meloy, in the defendant's presence, called up Brindley by telephone at the district attorney's office, and told him that the defendant would meet him. As a result of this, the defendant and Brindley met in the afternoon in Haan's restaurant, No. 11 Park Row, in the city of New York. After identifying each other, they went into one of the booths, when Mills stated that he had been instructed by Dr. Flower to have an interview with Garvan about the disposition of the charges against Flower. Brindley informed him that it was impossible for him to see Garvan, and defendant said: ‘Well, Dr. Flower is anxious for me to talk to Garvan, and I do not see why he does not want to talk to me just as lawyer to lawyer. That would be all right.’ And when informed that this was impossible, he said, ‘Well, if you can assure me that you will fulfill any contract or proposition that I make to you I am willing to talk with you.’ After some further conversation defendant stated: ‘That Dr. Flower was a fool to have let the matter go as far as it did, as the opportunity was presented to him when Mr. Garvan had him in his office for examination in the Hagaman matter; that this was his time for to make a settlement, instead of fighting it out; and that now he has engaged high-priced counsel, who would drag the case out so as to justify a large fee. * * * He would go to the fountainhead and settle the case. I asked him then, ‘Well, what is it you want us to do?’ He says, ‘Well, these indictments that have been found against Dr. Flower, you can withdraw them and misplace them, lose them, or dispose of them in some way, or Mr. Garvan could go into court, and permit him to go into court on a demurrer, and have the indictments quashed.’ I told him that I would see Mr. Garvan, and submit this to him, and let him know. He then said, ‘Well, Mr. Garvan ought to be satisfied with this. The matter is not worth as much money now as it would have been to us if it had been disposed of before indictment and all of this publicity. Dr. Flower's business has suffered very much from this, and, of course, it is not worth the money it would have been before the publicity.’ He said that as to the Hagaman matter ‘Mr. Garvan could say that, after thorough examination of witnesses, and the autopsy, and the examination of the report of the physician and chemist, he had come to the conclusion that the death of Mr. Hagaman was caused by natural causes, and that this would relieve both Dr. Flower and his client, Mrs. Hagaman-that is, Mills' client-of this notoriety.’ * * * He said he would have to see Dr. Flower so as to make the arrangements for the money; that Dr. Flower is an old bird at this game; has had twenty years' experience, and would be very particular about arranging these matters.' After arranging that the defendant should be known thereafter as McChesney, the parties separated. This conversation was repeated by Brindley to Jerome, and thereupon Jerome applied to ‘a judge of’ the court having the custody of the indictments, explained how he desired to use them, without, however, mentioning any name, and the ‘judge’ permitted them to be taken from the files of the office, and Jerome delivered them to Brindley. In the afternoon of the next day the defendant telephoned Brindley at the district attorney's office that everything was all right; that he had seen Dr. Flower, and ‘that it would be a go.’ At 12 o'clock of that day Brindley and the defendant again met at Haan's restaurant, when the defendant asked, “As to those indictments, what have you done?' I says, ‘Well, pursuant to your suggestion of yesterday about these indictments, I have inquired as to what effect it would have, and find that there are copies in the district attorney's office of these indictments.’ He saws: ‘Yes, that is right. By taking these indictments-the originals-the copies could be made demurrable, and Mr. Garvan could go into court, and with all apparent good faith fight our motion to demur on those indictments, and, of course, the judge would decide against him.’ He says, ‘But how do we know as to your good faith in those other matters that may come up in the future?’ ‘Well,’ I says, ‘You would have possession of the indictments then, and that would be evidence of good faith on our part.’ He says, ‘Yes, but I do not want those indictments. I will take them from you-buy them-and would go somewheres with you and destroy them.’ I...