213 N.Y. 388, People v. Cassidy

Citation:213 N.Y. 388
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH CASSIDY and LOUIS T. WALTER, JR., Appellants.
Case Date:January 12, 1915
Court:New York Court of Appeals
 
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Page 388

213 N.Y. 388

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

JOSEPH CASSIDY and LOUIS T. WALTER, JR., Appellants.

New York Court of Appeal

January 12, 1915

Argued November 23, 1914.

Page 389

COUNSEL

Robert H. Elder for Joseph Cassidy, appellant. The indictment does not state facts sufficient to constitute a cause of action. The pleader evidently conceived that subdivision 3 of section 775 of the Penal Law applied to the facts of this case, and he pleaded the facts in an attempt to bring them under this law, but the pleading was insufficient in that it does not set forth any crime of 'making, tendering or offering to procure, or cause any nomination' within the meaning of the statute, or 'any payment or contribution of a valuable consideration, or any understanding or promise thereof' as contemplated by statute. (Penal Law, § 775, subd. 3; L. 1892, ch. 693; L. 1881, ch. 676; L. 1890, ch. 94, § 1; L. 1892, ch. 693, § 1; L. 1895, ch. 721, § 1; L. 1897, ch. 255, § 1; L. 1898, ch. 197, § 1; L. 1899, ch. 530, § 1; L. 1905, ch. 625, § § 1, 2; L. 1901, ch. 375, § 1.)

Robert M. Moore for Louis T. Walter, Jr., appellant. The calling of the defendant Walter as a witness in the Willett case constituted a bar to the prosecution of this indictment against him. (Penal Law, § 770; People v. Hayes, 140 N.Y. 484.)

James C. Cropsey, District Attorney (Hersey Egginton and Ralph E. Hemstreet of counsel), for respondent. The indictment herein accuses the appellants of the crime of 'making, tendering and offering to procure and to

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cause a nomination to a public office upon the payment and contribution of a valuable consideration and upon the understanding and promise thereof.' This was charged and proved to have taken place in Kings county, and constitutes the offense defined, even if the persons making the nomination held no official place and exercised no official authority. (Penal Law, § 775, subd. 3.) Merrill's testimony as to what Willett said when he borrowed the $5, 000 was properly admitted. (Clune v. U. S., 159 U.S. 590; People v. Peckens, 153 N.Y. 576; People v. Sharp, 45 Hun, 460; 107 N.Y. 427; People v. McKane, 143 N.Y. 455; People v. Hall, 51 A.D. 57; Lincoln v. Claflin, 6 Wall. 132; Kelly v. People, 55 N.Y. 565; People v. Bassford, 3 N.Y. Crim. Rep. 219; 102 N.Y. 647; People v. Miles, 123 A.D. 862; 192 N.Y. 541; People v. Kief, 58 Hun, 337; 126 N.Y. 661; Brown v. U. S., 150 U.S. 93.)The testimony showing that Willett had not paid the Merrill note was proper. (1 Jones on Ev. § 171; 1 Wigmore on Ev. § 15; People v. Buchanan, 145 N.Y. 1; People v. Zigouras, 163 N.Y. 250; Waldron v. Romaine, 22 N.Y. 368; Stape v. People, 85 N.Y. 390; People v. Barone, 161 N.Y. 451; Gray v. Met. Ry. Co., 165 N.Y. 457; Blanchard v. New Jersey Stbt. Co., 67 Barb. 101; 59 N.Y. 292; Quinn v. Lloyd, 41 N.Y. 349; People v. Chacon, 102 N.Y. 669; Parkhurst v. Berdell, 110 N.Y. 386.) Walter was not immune because he had been called as a witness for the prosecution in the Willett case and there compelled to testify. He had waived all claim of immunity and had testified under oath previously to the same matters he was questioned about on the Willett trial. (Matter of Cullinan, 76 A.D. 362; 173 N.Y. 610; Sentenis v. Ladew, 140 N.Y. 463; State v. Van Winkle, 80 Iowa, 15; Com. v. Pratt, 126 Mass. 462; Com. v. Price, 10 Gray, 472; People v. Sebring, 14 Misc. 31; People v. Hayes, 140 N.Y. 484; McKinney v. G. S., P. P. & F. R. Co., 104 N.Y. 352; Schlotterer

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v. B. & N.Y. F. Co., 89 A.D. 508; People v. Bloom, 193 N.Y. 1.)

CHASE, J.

The defendant Cassidy in this case based his motion in arrest of judgment upon the ground, among others, that the indictment did not state facts sufficient to constitute a crime. In this respect the record on his appeal differs from the record in the Willett appeal. The judgment of the Appellate Division affirming the judgment of the trial court as against the defendant Cassidy...

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