People v. Adams

CourtNew York Court of Appeals
Citation176 N.Y. 351,68 N.E. 636
PartiesPEOPLE v. ADAMS.
Decision Date10 November 1903

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Albert J. Adams was convicted of the crime of knowingly having possession of a writing, paper, and document representing and being a record of a chance, share, and interest in numbers sold in a gambling game commonly called ‘policy,’ and of knowingly having possession of papers and devices such as are commonly used in carrying on and playing the game called ‘policy,’ in violation of section 344a of the Penal Code, and appeals from an order of the Appellate Division affirming the judgment (83 N. Y. Supp. 481). Affirmed.

The sections of the Penal Code under which conviction was had, read as follows:

Sec. 344a. A person who keeps, occupies or uses, or premits to be kept, occupied or used, a place, building, room, table, establishment or apparatus for policy playing or for the sale of what are commonly called ‘lottery policies,’ or who delivers or receives money or other valuable consideration in playing policy, or in aiding in the playing thereof, or for what is commonly called a ‘lottery policy,’ or for any writing, paper or document in the nature of a bet, wager or insurance upon the drawing or drawn numbers of any public or private lottery; or who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called ‘policy,’ or in the nature of a bet, wager or insurance, upon the drawing or drawn numbers of any public or private lottery; or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in currying on, promoting or playing the game commonly called ‘policy’; or who is the owner, agent, superintendent, janitor, or caretaker of any place, building, or room where policy playing or the sale of what are commonly called ‘lottery policies' is carried on with his knowledge or after notification that the premises are so used, permits such use to be continued, or who aids, assists, or abets in any manner, in any of the offenses, acts or matters herein named, is a common gambler, and punishable by imprisonment for not more than two years, and in the discretion of the court, by a fine not exceeding one thousand dollars, or both.

§ 344b. The possession, by any person other than a public officer, of any writing, paper, or document representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, in what is commonly called ‘policy,’ or in the nature of a bet, wager or insurance upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers or device, policy slip, or article of any kind, such as is commonly used in carrying on, promoting or playing the game commonly called ‘policy,’ is presumptive evidence of possession thereof knowingly and in violation of the provisions of section three hundred and forty-four-a.'

The facts, so far as material, are stated in the opinion.L. Laflin Kellogg and Alfred C. Petté, for appellant.

William Travers Jerome, Dist. Atty. (Howard S. Gans, of counsel), for the People.

BARTLETT, J. (after stating the facts).

As this is a unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain the verdict of the jury, it is only necessary to consider the facts sufficiently to determine the questions of law presented by this appeal.

It appears that the defendant occupied an office in the city of New York, wherein were his desk, trunk, tin boxes, and other articles of personal property. On a certain occasion when the defendant was in his office, the officers of the law appeared and stated that they had a search warrant. The defendant replied, in substance, before they proceeded to execute the same, that it was not his office, and that they would proceed at their peril. The officers thereupon placed the defendant under arrest and searched the premises. A large amount of papers was seized, which may be divided into two classes: (1) The papers referred to in the section of the Penal Code under which this indictment was found; (2) and papers relating to the private affairs of defendant. The evidence discloses in detail the manner of conducting the gambling game known as ‘policy,’ from which it appears that certain papers are sent to a central point from different offices or places in the city where the game is conducted, known as ‘manifold sheets.’ Among the papers seized in defendant's office were 3,500 of these manifold sheets, upon some of which were indorsements and entries in his handwriting. At the trial these manifold sheets were introduced in evidence as papers described in section 344a of the Penal Code. The private papers of the defendant were introduced in evidence for the double purpose of furnishing standards of his handwriting, and also tending to prove that the office in which the papers relating to the game of policy were found was occupied by him. There were also other books and papers put in evidence, in the handwriting of the defendant, relating to the entries on the manifold sheets, that need not be more particularly described.

The first point made by the learned counsel for the appellant is that by reason of the seizure of defendant's papers, as in the manner described, the defendant's constitutional right to be secure in his person, papers, and effects against unreasonable searches and seizures was violated, and he was also thereby compelled to be a witness against himself, in contravention of the fourth, fifth, and fourteenth articles of the amendments to the Constitution of the United States, and article 1, § 6, of the Constitution of the state of New York, and section 11 of the Bill of Rights of this state.

Articles 4 and 5 of the amendments to the Constitution of the United States do not apply to actions in the state courts.

This first point, as stated, involves two distinct propositions, that must be separated in considering them. The first is an alleged violation of the Bill of Rights, which protects a citizen against unreasonable searches and seizures, and the other is an alleged violation of the Constitution by compelling a person in a criminal case to be a witness against himself.

There were two classes of papers seized at the time the search warrant was executed. The legality of the seizure of the papers described in the section of the Penal Code under which the indictment was found cannot be successfully challenged. It therefore remains to consider the effect of seizing the private papers of the defendant. In Greenleaf on Evidence (volume 1, § 245a) the learned author says: ‘It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they were offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained-whether lawfully or unlawfully-nor will it frame issues to determine that question.’ In Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910, it was held as follows: ‘Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally, but his testimony is not thereby rendered incompetent. Commonwealth v. Dana, 2 Metc. 329, 337; Commonwealth v. Lottery Tickets, 5 Cush. 369, 374;Commonwealth v. Intoxicating Liquors, 4 Allen, 593, 600;Commonwealth v. Welsh, 110 Mass. 359;Commonwealth v. Taylor, 132 Mass. 261;Commonwealth v. Keenan, 148 Mass. 470 ;Commonwealth v. Ryan, 157 Mass. 403 ; 1 Greenleaf's Evidence, §§ 254a, 229; 1 Taylor's Evidence, § 922; 1 Bishop's Crim. Proc. (3d Ed.) § 246.’ In this state the same principle has been recognized in Ruloff v. People, 45 N. Y. 213, and a kindred principle in People v. Van Wormer, 175 N. Y. 188, 195,67 N. E. 299. The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence. In the case before us, if there has been any illegal invasion of the rights of this defendant by reason of alleged unlawful searches and seizures of private papers, his remedy is in an independent proceeding, not necessary to be considered at this time. We do not wish to be understood as expressing an opinion in regard to the seizure of defendant's private papers. When the officers entered the defendant's office, he assured them he did not occupy it, and that they would proceed at their peril. It is beyond dispute that the question as to who occupied the office was most material in connecting the defendant with the manifold sheets and other papers seized, relating to the game of policy, and that the private papers were important in this connection. The same may be said as to the standards of defendant's handwriting.

The next question is whether this defendant was compelled to be a witness against himself, in violation of the Constitution of this state (article 1, § 6). The appellant's counsel places great reliance upon the case of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, holding that an act of Congress which authorizes a court of the United States, in revenue cases, on motion of the government attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of...

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