People v. Chaplin

• Decision Date: 17 June 1959
• Citation: 8 A.D.2d 286,187 N.Y.S.2d 730
• Parties: PEOPLE of the State of New York v. Ralph CHAPLIN and Daniel G. Conway, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 730

187 N.Y.S.2d 730

8 A.D.2d 286

PEOPLE of the State of New York v. Ralph CHAPLIN and Daniel G. Conway, Defendants-Appellants.

Supreme Court, Appellate Division, Third Department.

June 17, 1959.

John F. Kelly, Cohoes, for defendants-appellants.

John T. Casey, Dist. Atty. of Rensselaer County, Troy, for the People.

Before BERGAN, J. P., and COON, GIBSON, HERLIHY and REYNOLDS, JJ. REYNOLDS, Justice.

Appeal by the defendants from a judgment of the County Court of Rensselaer County convicting them of the crime of conspiracy.

The defendants were indicted for conspiracy to commit the crime of robbery against the person of one William J. Tague. The defendants did not testify in their own behalf nor did they call any witnesses. The prosecution called, as witnesses, Tague, Alexander Karichkowski, at whose pawn shop Conway purchased an air pistol, and the police officers involved in the arrest of the defendants. The prosecution also introduced into evidence a statement made by the defendant Chaplin on the night of the arrest. When this statement was offered Chaplin did testify as to the circumstances of its taking. He stated he had been hit by a police officer and the officer denied this. The court below admitted the statement to be used only to determine the guilt of Chaplin, stating further that it was a question of fact for the jury as to whether it had been voluntarily made.

Tague testified that at about 11:40 on the night of December 17, 1957 the defendants entered the restaurant, of which he was the owner, had something to eat and at about 12:30 when people began to come in he heard Conway say, 'Lets blow, its filling up, we will be back later.' In the meantime he, Tague, had phoned the police. The defendants walked across the street and stood on the corner but when the police arrived they were not in sight. Tague got in his car and drove around the neighborhood for about 10 minutes and when he returned to his restaurant the defendants were again standing across the street. A police car then came by and the defendants were taken into custody. When asked what they were doing the defendants stated they were waiting for a bus. Upon searching the defendants an air pistol was found tucked in Conway's belt. Later at the police station Chaplin made a statement. The substance of this was that he and Conway had been drinking, that he accompanied Conway to a pawn shop where Conway purchased an air pistol, that Conway told him he was going to use it to stick up a man who ran a restaurant; he asked Chaplin if he would accompany him and Chaplin replied that he did not want to get in any trouble. Thereafter they went to tague's restaurant and after they walked out Conway told him Tague was the man he was going to hold up. Conway said as soon as he comes out we will stick him up. When he came out there were two men with him so Conway decided not to stick him up and as they were walking away the police picked them up. Karichkowski testified that in December, 1957 Conway accompanied by a man who he could not identify came into his pawn shop and bought an air pistol. He could not identify it as the one taken off Conway but said it was the same kind.

The defendants contend on this appeal that conspiracy was not made out in that no agreement was shown, that prejudicial remarks by the district attorney deprived them of a fair trial and that there was no corroboration of Chaplin's statement. The People maintain that all the essential elements of conspiracy were demonstrated, that the defendants had a fair trial and that there is ample evidence in the record to corroborate Chaplin's statement.

The appellants maintain that there is nothing outside of the statement by Chaplin which indicates that Conway was involved in a conspiracy. The statement made by Chaplin here was an admission of the kind referred to in People v. Bretagna, 298 N.Y. 323, 326, 83 N.E.2d 537, 538, as follows:

'* * *, an extrajudicial admission by a defendant, not amounting to a confession because not directly acknowledging guilt, but including inculpatory acts from which a jury may or may not infer guilt, is circumstantial, not direct evidence.'

The rule as to the admissibility of such admissions made by a conspirator has been often stated to be:

"Declarations made by one conspirator in the prosecution of the enterprise are evidence against all, but they must be made in furtherance of the enterprise and while the enterprise is pending. Narration of past facts after the enterprise has come to an end by success or failure is not admissible in evidence against the others.' People v. Ryan, 263 N.Y. 298, 305, 189 N.E. 225, 227; see, also, People v. McQuade, 110 N.Y. 284, 307, 18 N.E. 156, 166, 1 L.R.A. 273; People v. Kief, 126 N.Y. 661, 662-663, 27 N.E. 556, 557; People v. Vaccaro, 288 N.Y. 170, 172, 42 N.E.2d 472.' People v. Marshall, 306 N.Y. 223, 226, 117 N.E.2d 265, 266.

The court below here properly stated at the time the statement in question was admitted and again in its charge to the jury that it was to be used only to determine the guilt of Chaplin. This statement could not be used to determine the guilt of Conway who could only be convicted on the basis of the evidence in the record exclusive of Chaplin's statement.

Pursuant to section 580 of the Penal Law it is a misdemeanor for two or more persons to conspire to commit a crime. Under section 583 of the Penal Law an agreement to commit a crime does not amount to a conspiracy unless an overt act is done, with the exception of certain crimes. One of these exceptions is an agreement to commit a felony upon the person of another which, of course, the crime of robbery is, so that no overt act is necessary to prove the conspiracy charged herein. What had to be shown here was an agreement between Conway and Chaplin to commit the crime of robbery. The appellants point to a sentence from People v. Flack, 125 N.Y. 324, 26 N.E. 267, 11 L.R.A. 807 to the effect that an agreement to do an unlawful act is not a conspiracy unless the parties were activated by a criminal intent. They then argue that no real and corrupt agreement was shown here between Chaplin and Conway. It does not appear that it is necessary in every case of conspiracy to demonstrate that the conspirators were actually motivated by a corrupt and evil purpose. This is necessary when the unlawful act which is the aim of the conspiracy is only malum prohibitum as was stated in People v. Harris, 294 N.Y. 424, 433, 63 N.E.2d 17, 22:

'The gist of the crime of conspiracy as defined in this statute is agreement to do an unlawful act either as a means or as an end, People v. Flack, 125 N.Y. 324, 26 N.E. 267, 11 L.R.A. 807, and if the unlawful act is merely malum prohibitum, the agreement must have been entered into with criminal intent and evil purpose as distinguished from a purpose to do the act prohibited in ignorance of the prohibition, People of the State of New York v. Powell, 63 N.Y. 88; cf. Gardner v. People of the State of New York, 62 N.Y. 299.'

In People v. Flack, supra, the court said that in many cases the inference of the necessary criminal intent is irresistible. When the unlawful act is malum in se, as the act of robbery certainly is, the inference is open to the jury, and it would seem to be...