People ex rel. Pincus v. Adams

• Decision Date: 02 June 1937
• Parties: PEOPLE ex rel. PINCUS et al. v. ADAMS, Warden. PEOPLE ex rel. WILLIAMS et al. v. SAME.
• Court: New York Court of Appeals Court of Appeals

274 N.Y. 447

9 N.E.2d 46

PEOPLE ex rel. PINCUS et al.

v.ADAMS, Warden.

PEOPLE ex rel. WILLIAMS et al.

v.SAME.

Court of Appeals of New York.

June 2, 1937.

Appeal from Special Term.

Habeas corpus proceedings by the People, on the relation of Max Pincus, John J. Williams and another, against William A. Adams, as Warden of Tombs Prison, or any other person having custody of relators. From orders of Special Term which dismissed writs of habeas corpus and remanded relators to jail, relators appeal on constitutional grounds.

Affirmed.

The writs were sought upon the grounds that section 279 of the Code of Criminal Procedure and subdivision 4 of section 2190 of the Penal Law were unconstitutional and ex post facto. Section 279 of the Code of Criminal Procedure provides as follows: ‘When there are several charges for the same act or transaction, constituting different crimes or the same crime alleged to have been committed in a different manner or by different means, or for two or more acts or transactions connected together or constituting parts of a common scheme or plan, or for two or more acts or transactions constituting crimes of the same or a similar character, instead of having several indictments or informations, the whole may be joined in one indictment or information in separate counts, and if two or more indictments or informations are found in such cases, the court may order them to be consolidated; provided, however, that where the charges involve two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan, the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different charges set forth in the indictment or information or indictments or informations, be tried separately. The joinder or consolidation of indictments or informations shall not be prevented by the fact that different penalties may be imposed for conviction upon the several crimes charged.’ (Added by Laws 1936, c. 328, in effect April 9, repealing former § 279, applicable to all indictments or informations hereafter filed whether crimes or offenses alleged therein were committed before or after April 9, 1936, providing any part of section held invalid or unconstitutional not to affect any other part.)

Subdivision 4 of section 2190 of the Penal Law, as added by chapter 328 of the Laws of 1936, provides as follows: ‘Where a person is convicted of two or more offenses constituting different crimes set forth in separate counts of one indictment or information, or in separate indictments or informations consolidated fof the purposes of trial, the court may impose a separate sentence for each offense of which he is so convicted, and the court may order such sentences or any of them, if imprisonment is imposed, to be served concurrently or consecutively.’ Lawrence Kovalsky, David Goldstein, and Joseph W. Ferris, all of New York City, for appellants.

William Copeland Dodge, Dist. Atty., of New York City (Thomas E. Dewey and Stanley H. Fuld, both of New York City, of counsel), for respondent.

FINCH, Judge.

The relators and several others were indicted on charges of conspiracy to extort money, extortion and attempted extortion. In all there were forty-nine counts in the indictment, one being for conspiracy, the others for extortion or attempted extortion. Each count set forth a separate and distinct crime, all but three of which, it is alleged, were committed prior to April 9, 1936, the time when the statute, the validity of which we are asked to pass on, was enacted. The defendants were found guilty on all counts submitted to the jury.

Prior to the commencement of the trial a writ of habeas corpus obtained by the relators was dismissed. After the trial had begun another writ of habeas corpus was obtained by the relators and this writ also was dismissed. From the dismissal of these writs the relators appeal directly to this court on the ground that the joinder of the various counts in the indictment was improper, the statute authorizing such joinder being unconstitutional.

Prior to 1936 an indictment in this state could charge only one crime except that section 279 of the Code of Criminal Procedure provided that, ‘The crime may be charged in separate counts to have been committed in a different manner, or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,’ but an amendment to that section, which took effect on April 9, 1936 (Laws 1936, c. 328, § 1), provided that the state may consolidate into one indictment crimes of a similar nature or crimes not of a similar nature which are ‘connected together or constituting parts of a common scheme or plan.’ It is ‘provided, however, that where the charges involve two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan, the court, in the interset of justice and for good cause shown, may, in its discretion, order that the different charges set forth in the indictment or information or indictments or informations, be tried separately.’ The fact that different penalties may be imposed for conviction upon the several crimes charged is not to prevent the joinder or consolidation of the indictments.

At the same time section 2190 of the Penal Law was amended (Laws 1936, c. 328, § 6). To the requirement, that where a person is convicted of two or more offenses before sentence is pronounced upon him for either offense the court is obligated to impose cumulative and successive sentences, was added a new subdivision which provided that where conviction for two or more offenses constituting different crimes is had on separate counts of one indictment (the situation resulting from the application of section 279 of the Code, as amended), the court is not required to impose successive sentences but may order such sentence or any one of them to be served concurrently. The relators contend that these statutes as amended are unconstitutional or at least they are unconstitutional in so far as they are made to apply retroactively.

There is nothing unique about a statute which provides that a person may be tried in a single trial for a number of crimes of a similar nature or connected together as part of a common plan. Laws substantially the same as those involved herein have been for many years a part of the federal statutes and are to be found on the statute books of many of the states. Such procedure was not unknown to the common law. People v. Gates, 13 Wend. 311, 322; Queen v. Castro [1880] L. R., 5 Q. B. D. 490, affirmed 50 L. J., Q. B. D. 497. The constitutionality of these statutes and the validity of convictions obtained under them have been challenged on a number of occasions but uniformly they have been upheld. In Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208, it was held that an indictment charging the defendant with two independent murders was a proper joinder under the federal statute. ‘The accused having been charged with different acts or transactions ‘of the same class of crimes or offences,’ it is scarcely necessary to say that the transactions referred to in the indictments, being of the same class of crimes, could properly, that is, consistently with the essential principles of criminal law, be joined in one indictment against a single defendant without embarrassing him or confounding him in his defense.' Williams v. United States, 168 U.S. 382, 390, 18 S.Ct. 92, 95, 42 L.Ed. 509. In the state courts such statutes have been sustained in People v. Kelly, 203 Cal. 128, 263 P. 226;State v. Fox, 56 S.D. 294, 228 N.W. 382;State v. Brunn, 145 Wash. 435, 260 P. 990. Cf. Webb v. State, 177 Ga. 414, 170 S.E. 252;Com. v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281;Sheppard v. State, 104 Neb. 709, 178 N.W. 616,18 A.L.R. 1074;State v. Semeraro, 99 Vt. 275, 131 A. 798;Gutenkunst v. State of Wisconsin, 218 Wis. 96, 259 N.W. 610, certiorari denied, 296 U.S. 608, 56 S.Ct. 124, 80 L.Ed. 431.

Resort is had to article 1, section 10, of the United States Constitution, and it is asserted that the application of the statute to offenses committed prior to its enactment renders it ex post facto. To test this contention we turn to the well-known case of Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648, for a definition of ‘ex post facto laws.’ ‘I will state what laws I consider ex post facto laws, within the words and...