People v. Clougher
| Decision Date | 20 July 1927 |
| Citation | 158 N.E. 38,246 N.Y. 106 |
| Parties | PEOPLE v. CLOUGHER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Thomas J. Clougher was convicted of the crime of bribery, under Penal Law, § 372, and of receiving a gratuity as forbidden by section 1826. From a judgment of the Appellate Division, First Department (220 App. Div. 712, 221 N. Y. S. 876), unanimously affirming a judgment of the Bronx County Court, entered on the verdict of conviction, defendant appeals by permission.
Affirmed.
See, also, 219 App. Div. 781, 220 N. Y. S. 897; 219 App. Div. 824, 220 N. Y. S. 898.
Appeal from Supreme Court, Appellate Division, First Department.
James C. Van Siclen, of Jamaica, and Henry Vollmer, Jr., and George C. Wildermuth, both of Brooklyn, for appellant.
John E. McGeehan, Dist. Atty., of New York City (George B. De Luca, I. J. P. Adlerman, and Herman J. Fliederblum, all of New York City, of counsel), for the People.
Defendant, a public servant with many of the indicia of a public officer, was indicted in two counts, one for receiving a gratuity as forbidden in section 1826 of the Penal Law (Consol. Laws, c. 40), and another for taking a bribe upon an agreement that his opinion, judgment, and action should be influenced thereby, as prohibited in section 372 of the Penal Law. He was found guilty under both counts and sentenced under one, The agreement and the receipt of money were so proved that, under the court's charge respecting the meaning of these two sections of the Penal Law, the jury could not reasonably entertain any doubt concerning defendant's guilt of the crimes alleged in the indictment.
The prosecution resulted from circumstances surrounding the issue of a temporary permit by the commissioner of health of the city of New York in August, 1924, for the admission into that city of cream from dairies in Wisconsin. In May or June, 1923, and succeeding months, representatives of Nestles Food Company and its subsidiaries, which owned numerous dairies in that state, visited the health department for the purpose of obtaining permission to market their products in New York City. Among the officals whom they met was defendant, who was secretary to the health commissioner. Shortly after their first visit, the Nestles Company made a contract with a man named Danziger by which he was to receive $1 per can for each can of cream shipped into New York by that company and sold by him. In the summer of 1923 Danziger showed his contract to defendant, who put it in his pocket and kept it. Between that time and August, 1924, when the permit was issued for the admission of Wisconsin cream, Danziger had no fewer than fifty conversations with defendant on the subject of admitting such cream. Defendant assured him, ‘I will take care of it and put it over;’ ‘I will take care of it, just leave it to me.’ These conversations occurred at defendant's home, at his office, at restaurants, hotels, roadhouses, a golf club, and on automobile rides. Defendant advised the health commissioner that western cream was a necessity, and he became known throughout the department as an ardent advocate of its admission. In August, 1924, the commissioner's assistant secretary, a subordinate to defendant, a guest with him and Danziger at half a dozen of their conferences, his intimate friend and later his business partner, telephoned the commissioner, then on vacation, that there was a stringency in the market for cream and that the admission of western cream should be approved. The commissioner, accepting the statement of fact concerning stringency in the cream market, gave his approval for temporary admission. Cream was no scarcer then than at the corresponding season in any other year, but defendant assured the commissioner to the contrary on his return from his vacation. This temporary permit never was revoked during that administration, nor did defendant, as secretary, ever call the commissioner's attention to its continuance. When Danziger received his first check as commission from the Nestles Company, he gave 90 per cent. of its amount to defendant. The same thing happened upon the receipt of each succeeding check. The total sum paid by Danziger to defendant was approximately $90,000. The specific transaction upon which the indictment is based is the receipt by defendant in Bronx county of $1,080 on January 19, 1925.
No evidence was offered by defendant, no fact controverted except by cross-examination and, consequently, nothing remained for the jury except the function of testing the credibility of the people's witnesses. The finding concerning the existence of an agreement whereby defendant promised to assist in the admission of the Nestles products and the receipt of money by him in pursuance of such understanding is fully supported by the evidence. Many exceptions were taken. All have been carefully considered, but none require discussion except that relating to the question whether a witness named Sprey was an accomplice and those relating to the court's interpretation of sections 1826 and 372 of the Penal Law.
[1][2] The corrupt agreement and the receipt of money by defendant were proved by Danziger, an accomplice. Defendant's official position, his zealous espousal of the cause of western cream, his relations with the assistant secretary, the message to the absent commissioner, the approval of the temporary permit, its continued existence, the presence of Danziger in defendant's home, and their joint inspection of milk depots were proved by officers and employees of the health department who were in no way implicated in the crimes. However, the main corroboration of Danziger, the accomplice, rests upon the testimony of Helen Sprey. It was her corroboration more than any other that tended to connect defendant with the commission of the crimes. At the request of defendant, the court charged that, before a conviction could be had, the jury must find as a fact that the witness Sprey was not an accomplice. The verdict imports that she was not an accomplice. Under no view of the case was the court bound to charge that she was such as matter of law. One can be so considered only when he can be prosecuted as a principal at common law. That is the test. People v. Swersky, 216 N. Y. 471, 476,111 N. E. 212;People v. Cohen, 223 N. Y. 406, 426,119 N. E. 886. He must be shown to have counseled, induced, or encouraged the crime. People v. Swersky, supra. When questions of fact arise whether a witness has done any of those things and different inferences can be drawn, it is the jury, not the court, that must determine. People v. Katz, 209 N. Y. 311, 332,103 N. E. 305, Ann. Cas. 1915A, 501. The trial judge observed this rule and left the question to the jury. People v. Crossman, 241 N. Y. 138, 142, 149 N. E. 330. By no possibility could the evidence sustain a contention that the witness Sprey counseled or induced the commission of the crime. Neither did she command or procure it. Whether she aided or abetted it and so became a principal (Penal Law, § 2) is a closer issue, but we cannot say that the verdict is without support. On occasions, Danziger handed money to her and asked her to count it. She did count it and returned it to him, who put it in his pocket and later gave it to defendant. Her testimony is to some extent conflicting; she swears that she knew that Danziger's intention was to give to the health commissioner's secretary this money received by Danziger for western cream; again, she swears that she did not know that he gave it to defendant for what defendant was doing for him in the department. Under the judge's instructions the jury was free to determine whether she was an accomplice. We can see no reversible error in this ruling.
[3] Appellant vigorously argues that there is no evidence to show that he violated section 1826 of the Penal Law, as alleged in the indictment. That section provides, among other things, that any person appointed or employed by or in the office of a public officer who shall in any manner act for or in behalf of any such officer, and who receives or agrees to receive any money for doing or omitting to do any official act, or for having performed or omitted to perform any act whatsoever, directly or indirectly related to any matter in respect to which any duty or discretion is by or in pursuance of law imposed upon or vested in him or may be exercised by him by virtue of his office, or appointment or employment or his actual...
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