People v. Bloom

• Citation: 193 N.Y. 1,85 N.E. 824
• Parties: PEOPLE v. BLOOM.
• Decision Date: 06 October 1908
• Court: New York Court of Appeals

193 N.Y. 1

85 N.E. 824

PEOPLE

v.BLOOM.

Court of Appeals of New York.

Oct. 6, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Isaac Bloom was convicted, in the Court of General Sessions of the Peace, of perjury, and from a judgment of the Appellate Division (124 App. Div. 767,109 N. Y. Supp. 344), affirming the judgment of the Court of General Sessions of the Peace, and an order denying a motion in arrest of judgment, he appeals. Affirmed.

On the 21st of December, 1905, the defendant was convicted of the crime of perjury, alleged to have been committed under the following circumstances: On the 3d of January, 1905, he was sworn as a witness in his own behalf, upon the trial of an action brought by him against the Metropolitan Street Railway Company to recover damages which he alleged he had sustained through its negligence. He testified, in substance, that on the 9th of December, 1901, he was a passenger on a car of said railway company, and when it reached the point where he wished to alight, he notified the conductor, and the car came to a full stop. As he was getting off, with one foot on the step of the rear platform and one hand on the handle, he put his other foot on the pavement, when the car suddenly started. He was thrown to the ground, dragged a short distance, and severely injured. Prior to this accident his health and physical condition had been perfect, and there was no trouble with his left arm or his right leg, both of which were in perfect condition. He had never suffered from paralysis, and had never carried a cane. Right after the accident his left arm and his right leg became paralyzed so that for a long time he could not use them, and while his leg had improved a little at the time of the trial, his arm was still so that he could not use it at all. His mouth also had become twisted and distorted. All this evidence was material to the issue in that action. During that trial four physicians were sworn for the railway company, and, no objection being made by Bloom or his counsel, testified that prior to December 9, 1901, they had treated him professionally, and that some of the occasions were but a few weeks before the accident; that he was then suffering from total paralysis of the left side, left arm, and left leg, and that the left side of his face was involved a little; that this condition was caused by syphilis; that sometimes he carried one cane and sometimes two, and when he first came to the office of one of the physicians, he was supported by two persons; and, finally, that he had permanent, chronic, organic paralysis. No objection was made to any part of this testimony, and the plaintiff there, but defendant here, through his counsel, cross-examined the physicians at length upon the subjects embraced by their direct evidence. Bloom was indicted for perjury in giving said testimony on the trial of the civil action, and upon the trial of the indictment the people proved what he swore to on that occasion. Then they called the four physicians, who, subject to objection and exception, gave evidence as they had before, tending to show that the testimony of Bloom on the previous trial was utterly false. This evidence was objected to, generally and specifically, in various forms, and especially upon the ground that the relation of physician and patient was shown to have existed between the several witnesses and Bloom, and that the testimony was prohibited by section 834 of the Code of Civil Procedure. The trial court overruled the objection upon the ground that Bloom had waived the privilege of the statute. Aside from the testimony of these physicians, there was much evidence tending to show that the defendant was not injured by the accident, and that his ailments were of long standing. He swore to the contrary, and was corroborated to some extent. The jury found the defendant guilty of perjury, and, a motion to arrest judgment having been denied, he was sentenced to imprisonment in state prison for the term of seven years. Upon appeal to the Appellate Division the judgment and order were affirmed, two of the justices dissenting. The defendant appealed to this court.

D. Cady Herrick, for appellant.

Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for the People.

VANN, J. (after stating the facts as above).

The question presented for decision is whether the defendant, by failing to object to the testimony of the physicians on the trial of the civil action, waived his right to object to their testimony upon the trial of the criminal action. The parties to the two actions were not the same, although the defendant was a party to both. His adversary in the one was the Metropolitan Street Railway Company, and in the other the people of the state of New York. The nature and object of the two actions were utterly unlike. One was a civil action, prosecuted by him against a railway company for the recovery of a sum of money as damages for personal injuries caused by its negligence, while the other was a criminal action, prosecuted against him by the people for perjury. The defendant did not cause or procure the evidence of the physicians to be admitted when the civil action was tried, but he made no attempt to prevent its admission, although it was within his power to keep it out, or to avail himself of the privilege conferred by the statute. He did not waive by acting, but by failing to act. Whether his failure to object was owing to inadvertence, or policy, or to some other reason, does not appear, and is not now material. It is conceded that the defendant waived the benefit of section 834 so far as the trial of the civil action was concerned, and the real question is, what effect did that waiver have upon subsequent trials, civil or criminal? This depends upon the intention of the Legislature, which must be gathered from a reasonable interpretation of its language, read in the light of previous legislation upon the subject and the decisions of the courts relating thereto.

While the prohibition is of long standing, and from the outset it has been held that it could be waived by the person for whose protection it was designed, still there was no statutory provision relating to waiver until 1877, when the Code of Civil Procedure, passed the previous year, went into effect. Laws 1876, pp. 158, 289, c. 448, §§ 836, 1496. That act provided that the prohibition should apply ‘to every examination of a person as a witness, unless * * * the patient, * * * is present or represented by counsel, and does not object to the testimony.’ Apparently this was regarded as too narrow, for the section in that form was in force but four months when an amendment took effect by which the prohibition was made to apply ‘unless the provisions thereof are expressly waived by * * * the patient. * * *’ Laws 1877, pp. 442, 467, c. 416, §§ 1, 4. This was general as to the power to waive, and the omission to prescribe the manner and effect left those subjects open to construction by the courts.

In 1891 an express waiver was allowed ‘upon the trial or examination,’ but while the statute provided when, it did not provide how, the privilege could be waived, nor measure the effect of a waiver when once made. Laws 1891, p. 736, c. 381. Since 1899 the waiver ‘must be made in open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver’ is ‘insufficient as such waiver.’ The statute further...