People v. Chapman

• Decision Date: 10 July 1963
• Citation: 242 N.Y.S.2d 200,13 N.Y.2d 97,192 N.E.2d 160
• Parties: , 192 N.E.2d 160 The PEOPLE of the State of New York, Respondent, v. William CHAPMAN and George Hogan, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 200

242 N.Y.S.2d 200

13 N.Y.2d 97, 192 N.E.2d 160

The PEOPLE of the State of New York, Respondent, v. William CHAPMAN and George Hogan, Appellants.

Court of Appeals of New York.

July 10, 1963.

Walter R. Shepard and Anthony Marra, New York City, for William Chapman, appellant.

William G. Wall, New York City, for George Hogan, appellant.

Frank S. Hogan, Dist. Atty. (Michael R. Juviler and H. Richard Uviler, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

The defendants were charged with giving, offering and causing to be given and offered to Patrolman William Halley the sum of $500 to influence him to release one Horace Ross who had been arrested by Halley and to drop all charges against Ross. After Ross had been booked on charges of malicious mischief, felonious assault upon a police officer and possession of narcotics, the defendants appeared at the station house. Defendant Hogan said that defendant Chapman was Ross' cousin (which was untrue) and thereafter Chapman in Hogan's presence offered Halley $500 to let Ross go and counted that sum of money out and placed it on a step. Hogan and Chapman were than arrested.

As the case comes to us the fact is established that, as testified by the police officers, this money was offered to Halley to 'Let Horace Ross go free without locking him up.' The indictment charges that the money was offered or paid to Halley 'to influence him to release one Horace Ross arrested by the said William Halley and to drop all charges against said Horace Ross.'

Section 378 of the Penal Law, Consol.Laws, c. 40, makes it bribery to offer or to pay money 'to a public officer, or to a person executing any of the functions of a public office' if it is given to him 'with intent to influence him in respect to any act, decision, oath, opinion or other proceeding, in the exercise of the powers or functions which he had or may have'.

Only one real question remains in the case, which is whether releasing Ross and dropping the charges against him was within the official powers or functions of this public officer. The question is presented in various aspects, such as whether it was necessary to allege in the indictment that this came within Halley's official powers or functions, whether is was a question for the jury or for the court, and whether the jury should have been limited according to an instruction requested in behalf of defendants on the same theory of the law. Apart from a request that defendants could not be convicted of bribery if the release of Ross by Patrolman Halley would be in violation of his duties, the declination of which was clearly correct, defense counsel requested the court to charge: 'I ask your Honor to charge that the bribe must relate to some official act which is in the power of the person bribed to accomplish or to influence, and that if an offer to and acceptance by a public officer of a so-called bribe in connection with some act which is not in his power, as an official to grant or influence, is not bribery.' This request was declined and counsel excepted.

The basis for the request was that at the time when this money was paid to Halley by defendants, Horace Ross had already been booked on the three charges mentioned awaiting arraignment, Patrolman Halley's duties with respect to Ross had ended, and that he was about to start out again on patrol. It is said that he had no power to release him if he would, and that consequently the purpose for which the jury found that the money was offered did not fall within his official duties as required by section 378 of the Penal Law. Halley testified that it was still within his power to 'have physically released' Ross, for the reason that he was his prisoner. The order of events has been, first, that Ross broke the window and otherwise damaged the bar and grill, not in the presence of the arresting officers, later that he was charged with assaulting the officers in making his arrest, and, finally, when searched at the police station, he was found to have been carrying heroin in a glassine envelope in his pocket. It would appear that if the damage to the property at the bar and grill exceeded $250, as defendants' counsel asserted it was, the offense of malicious mischief amounted to a felony (Penal Law, § 1433). In that event the officers had power to arrest him on probable cause without a warrant, from which it follows that it might have been in the power of the officers to let him go on that charge on the basis that they were not in possession of sufficient evidence to constitute probable cause to believe him guilty in making the arrest. We are not inclined to construe the bribery statute narrowly enough, however, to render that of particular importance.

'The gist of the crime of bribery is the wrong done to the people by corruption in the public service' (People v. Lafaro, 250 N.Y. 336, 342, 165 N.E. 518; People v. Ryan, 12 A.D.2d 841, 209 N.Y.S.2d 626) and, although the money must be offered to the officer to act or refrain from acting in a matter over which he may be assumed to have power, the statute against bribery does not refer directly to jurisdiction, and official action means such as properly belongs to the office even if the right to perform it did not exist in the particular case (People v. Jackson, 191 N.Y. 293, pp. 300-301, 84 N.E. 65, pp. 67-68, 15 L.R.A.,N.S., 1173). In the case last cited it was said:

'it is sufficient if the defendant assumed, colore officii, to perform a function belonging to his office, even if the right to perform it did not exist in the particular case (citing cases).

'Just as an officer de facto is punishable for malfeasance in office the same as if he had been an officer de jure, so an officer de jure, acting apparently with, but really without, jurisdiction, is punishable for accepting a bribe the same as if he had had complete jurisdiction, provided the action to be corruptly taken was in form appropriate to the office held by him. State v. Goss, 69 Me. 22; Mechem on Public Officers, § 336; 1 Bishop on Criminal Law, § 917. We have just held that the City Court of the city of New York has no jurisdiction of an action against that city (O'Connor v. City of New York, 191 N.Y. 238, 83 N.E. 979); but is it possible...