People v. Cassidy

• Decision Date: 12 January 1915
• Citation: 213 N.Y. 388,107 N.E. 713
• Parties: PEOPLE v. CASSIDY et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 388

107 N.E. 713

PEOPLE

v.CASSIDY et al.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appeallate Division, Second Department.

Joseph Cassidy and Louis T. Walter, Jr., were convicted of the crime of making, tendering, and offering to procure and cause the nomination to a public office, on the payment and contribution of a valuable consideration, and on the understanding and promise thereof, and from judgments of the Appellate Division (164 App. Div. 15,149 N. Y. Supp. 358; 164 App. Div. 25,149 N. Y. Supp. 365) affirming the convictions, they appeal. Affirmed as to defendant Cassidy, and reversed as to defendant Walter.

See, also, 149 N. Y. Supp. 390.

Robert H. Elder, of New York City, for appellant Cassidy.

Robert M. Moore, of New York City, for appellant Walter.

James C. Cropsey, Dist. Atty., of Brooklyn, for the People.

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 was unanimous. Most of the questions presented on this appeal by the defendant Cassidy, and on which he claims that the judgment should be reversed, have been discussed in the opinion in the case of People v. Willett, 213 N. Y. 368, 107 N. E. 707, the decision in which case is handed down herewith.

[1] When sufficient evidence of a common design and purpose amounting to a conspiracy has been given to make the question one for the jury, any evidence of the acts and declarations of the conspirators in furtherance of the common purpose is competent. In a case like this it is not necessary in order to make such proof competent that the conspiracy should be charged in the indictment. People v. McKane, 143 N. Y. 455, 38 N. E. 950 .

[2] There is evidence in this case sufficient to make the question whether the defendants and one Willett unlawfully conspired to bring about the nomination of Willett for the office of Justice of the Supreme Court in the Democratic judicial convention for the Second judicial district in 1911 one of fact. The testimony of Merrill as to what Willett said to him after Willett and defendants had conferred about the nomination, and on October 22d, at the time he procured a loan of $5,000 for Willett on a 30-day note, and before the money was paid over to him, was not error, in view of the agreement which the jury had a right to find was entered into by and between Willett and the defendants herein, relating to the nomination.

The testimony as to the payment of the note by Willett's brother was also properly received, because of the fact that testimony had then been elicited from which, as stated by the Appellate Division in their opinion, the jury could have been asked to draw the inference that a portion of the amount subsequently borrowed by Willett was used by him to discharge the $5,000 30-day obligation which came due in the latter part of October, and thus account for some of the moneys borrowed by him. The evidence as to the payment of the note by Willett's brother was expressly limited by the court for use in contradiction of such inference.

[4] When upon the trial of an action evidence is elicited on cross-examination from which an inference as to a fact favorable to a defendant may be drawn, subsequent evidence of other facts or circumstances showing that the inference sought to be drawn is not warranted becomes competent and material. People v. Buchanan, 145 N. Y. 1, 24,39 N. E. 846;People v. Zigouras, 163 N. Y. 250, 255,57 N. E. 465.

The defendants criticize in many ways the charge made by the court to the jury. Most of such criticisms have been answered by what has been said in this opinion and in the Willett opinion. Taken in its entirety, we do not think that the charge was prejudicial to the defendant Cassidy.

A question has been raised by the defendant Walter that does not apply to the defendant Cassidy. It is of supreme importance to Walter. After the nominating convention referred to in the indictment and information was presented to Supreme Court Justice Scudder, charging that a crime had been committed in connection with the nomination of candidates at such judicial convention, witnesses were sworn and examined before said justice in Queens county, and the defendant Walter appeared voluntarily and offered himself as a witness. He expressly waived immunity, and was also told that any testimony that he might give could be used against him at any time thereafter. He was sworn and gave testimony on the day of such appearance, and also at an adjourned day. On a day to which the proceeding was subsequently adjourned he was duly subpoenaed and attended pursuant to such subpoena. In response to the justice he said that the testimony that he had given was given voluntarily, but that, if he gave any further testimony, he would expect immunity . He was not called as a witness on such adjourned day, but was compelled to sign a transcript of the testimony that he had voluntarily given as stated. The result of the Queens county proceeding was the discharge of the persons there charged with crime. People ex rel. Willett v. Quinn, 150 App. Div. 813,135 N . Y. Supp. 477. Some time thereafter an investigation was conducted by the grand jury of Kings county, and an indictment was found in Kings county against Willett and a separate joint indictment against Cassidy and Walter. The indictment against Willett was first tried, and a few days thereafter the indictment against Cassidy and Walter was tried. The appeal now under consideration by this court is from the judgment of the Appellate Division of the Supreme Court affirming the judgment convicting the defendants of the crime found pursuant to the indictment in Kings county. On the Willett trial Walter was called as a witness by the people, but declined to testify, on the ground that his testimony might tend to convict him of a crime. He was compelled to attend and testify in that case, and was examined at great length therein. On the trial of the joint indictment against him and Cassidy, Walter pleaded, giving his testimony as a witness in the Willett trial in bar of his prosecution under the indictment.

[5] The fifth article or amendment to the Constitution of the United States and section 6 of article 1 of the Constitution of this state provide that no person shall ‘be compelled in any criminal case to be a witness against himself.’ The constitutional provisions quoted gave expression to public sentiment. Public sentiment on the subject grew out of an abhorrence of the inquisitional rack. The personal privilege became a part of the common law of England, and has been made secure by constitutional provision in the federal and most of the state Constitutions. The constitutional provisions must have a broad construction in favor of the right which it was intended to secure. Counselman v. Hitchecock, 142 U . S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. It is a privilege, but a privilege that cannot be asserted unless the person to whom the privilege is given in subject to criminal prosecution or forfeiture. It cannot be asserted in a case where the person offered as a witness has been tried upon the charge and acquitted, nor in a case where the statute of limitations has run against the crime or where...