People v. Flack

Decision Date13 January 1891
Citation125 N.Y. 324,26 N.E. 267
PartiesPEOPLE v. FLACK et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, first department.

EARL and GRAY, JJ., dissenting.

Geo. F. Danforth, for appellants.

John W. Goff, for the People.


This is an appeal by James A. Flack and William I. Flack from a conviction of the crime of conspiracy. The indictment contains 16 counts, which may be divided into two classes. The first class charge the defendants together with three other persons with falsely instituting and maintaining an action for divorce in the name of Mary E. Flack, the wife of James A. Flack, against her husband, without her knowledge or consent. The second class charge the defendant with deception and imposition upon the court, and the procuring of a judgment of divorce in the said action by illegal and fraudulent practices. The indictment is founded upon the statute which (omitting clauses not now material) makes it a misdemeanor for two or more persons to conspire ‘falsely to institute or maintain an action or special proceeding, or to commit any act for the perversion or obstruction of justice, or of the due administration of the law.’ Pen. Code, § 168. The action of Flack v. Flack was commenced April 22, 1889, by the service of a summons and complaint upon the defendant therein. The complaint purported to be verified by the plaintiff, Mary E. Flack. It alleged the intermarriage of the parties in 1850, and charged that the defendant since said marriage had committed adultery with one Susan T. Reynolds; and that since the 1st day of October, 1888, and for several years prior thereto, he had lived in adulterous intercourse with the said Susan T. Reynolds at 319 West Twenty-Ninth street, in the city of New York. The complaint also contained the usual averments that the adultery charged was committed without the connivance, privity, or procurement of the plaintiff; that five years had not elapsed since its discovery by her; and that she had not voluntarily cohabited with the defendant thereafter. The complaint demanded judgment dissolving the marriage between the parties, with a provision therein for the reasonable support and maintenance of the plaintiff. The counts in the complaint charging a conspiracy between the defendants falsely to institute and maintain the action without the knowledge and consent of Mary E. Flack, the nominal plaintiff, was sought to be supported on the trial mainly by her testimony. She testified, in substance, that she never consented to or authorized the bringing of the action; and, while it is inferable from her testimony that she suspected her husband's infidelity, she testified that she had no knowledge, until after the judgment of divorce was rendered, either that such an action had been brought, or that her husband had committed adultery as charged in the complaint. She admitted that she did consent that her husband might procure a bill of separation,’ but not that he should procure a divorce. She denied the signature, purporting to be hers, to the affidavit annexed to the complaint, and also the signature to the affidavit of regularity, taken by the referee and annexed to the judgment roll. She admitted that she signed certain papers on several occasions presented to her by her son, but testified that she supposed that they related to the separation which had been spoken of between herself and her husband and son, and that she signed them on that understanding and representation. The jury might undoubtedly have found, upon the evidence, that Mrs. Flack was deceived into verifying the complaint and signing the affidavit of regularity; but there is very little room to doubt, upon the whole evidence, that whatever may have been the fraud practiced upon her, the signatures to these papers were her genuine signatures.

The evidence of James A. Flack, taken before the grand jury, was read in evidence by the prosecution on the trial of the indictment, and the defendant William I. Flack was sworn as a witness on his own behalf. They denied any conspiracy or fraud, and testified that the suit was commenced and prosecuted with the full knowledge and acquiescence of Mrs. Flack. The evidence given on the trial to sustain that part of the charge, that the defendants conspired to falsely maintain the action for divorce, did not proceed upon a denial of the fact of adultery charged in the complaint. On the contrary, it was proved on the part of the prosecution, and was conceded by the defendants, that the defendant James A. Flack had for more than 15 years before the trial lived in adulterous intercourse with a woman whose real name was Sarah Cherry, but who had passed by the name of Susan T. Raymond, and by whom he had a son, who, at the time of the trial, was about 15 years of age. The claim on the part of the people was that this woman was intentionally misnamed in the complaint, which falsely stated the name of the adulteress to be other than her real name; and also that they induced two witnesses, who knew of the adulterous intercourse between James A. Flack and the woman Raymond, and by whose depositions, taken before the referee, the adultery charged in the complaint was proved, to suppress the real name, and to testify that the person with whom James A. Flack lived in adulterous intercourse was known to them as Susan T. Reynolds. It is also claimed that they were induced to swear falsely that they had known Mrs. Flack for five years. It was not denied, indeed, it was conceded, that the testimony of these witnesses was perfectly true as to the material fact of the adultery, and the adulterous intercourse at the place and during the period named in the complaint, and that the only misstatements were as to the identity of the name in the depositions with that of the real adulteress, and in respect of the time the witnesses had known Mrs. Flack. These two witnesses testified on the trial of the indictment that they had never known Mrs. Raymond to pass by the name of Reynolds, and they gave as a reason for suppressing the true name in their depositions, that Mrs. Raymond, who, as agent for James A. Flack, presented the depositions to them for their signatures, on her attention being called by them to the discrepancy, said: ‘It was all right, the name Reynolds, a covering for the boy's sake; it was done for the boy, leaving out the name Raymond, and the name Reynolds was put in instead of Raymond.’ The defendant James A. Flack in his evidence before the grand jury (which was introduced by the people) testified that the woman Raymond went at times by the name of Reynolds.

The counts of the second class, viz., those charging deception and imposture on the court, and the procuring of the judgment of divorce by illegal and fraudulent practices, were sought to be supported, mainly, by proof of certain acts and transactions not disclosed on the face of the judgment record in the divorce action, but proved by witnesses, relating to papers embodied in the record, and upon which the judgment was founded. The judgment, although regular upon its face, was, as was claimed by the prosecution, fraudulent by reason of the circumstances disclosed by this evidence. It appears that on or about the 2d day of July, 1889, Mr. Meeks, who on the 10th of June, 1889, had been appointed, by an order of Judge BOOKSTAVER, referee in the action of Flack v. Flack, applied to the same judge, upon the request of Ambrose Monell, the attorney of record of the plaintiff in the action, (Monell being then ill, and absent from the city of New York,) for judgment of divorce pursuant to the prayer of the complaint in the action. The application was made upon papers, including the original summons and complaint, duly verified, affidavit of default, order of reference, oath of referee, deposition of Mary E. Flack, proofs taken by the referee, and the referee's report. The judge, after examining the papers, declined to grant the application, for the reason that Ambrose Monell, the attorney of record for Mary E. Flack, the plaintiff, was known to him to be the official attorney for the defendant James A. Flack, then sheriff of the county of New York. There is some discrepancy in the testimony as to what further occurred on that occasion between the judge and Mr. Meeks. What the latter did is substantially uncontradicted. He took the papers, and went to the office of Benjamin Wright, a reputable attorney, and stated to him the case and the objection of the judge, and requested him to appear as plaintiff's attorney in place of Monell. Wright, after much persuasion, finally consented to do so, on being assured that he would be furnished with an authority from Monell to appear for Mrs. Flack. The papers originally presented to Judge BOOKSTAVER were then changed and reformed. The original summons, signed by Ambrose Monell, as attorney for the plaintiff, was torn from the complaint, and a new summons was attached thereto, signed by Wright as attorney for the plaintiff, and which differed from the original summons in the name of the attorney only; the signature of Monell, as attorney, signed to the complaint, was erased, and that of Wright was written by him over the erasure; the affidavit of default made by Monell on the 22d of May, 1889, was detached from the other papers, and a new affidavit of the same tenor, purporting to have been made by Wright on the same 22d of May, was drawn, and signed, and sworn to by Wright; a new order of reference, purporting to have been made on the 3d day of June, 1889, ‘on the motion of Benjamin Wright, attorney for the plaintiff,’ appointing Joseph Meeks referee, was drawn; and also a new form of decree, stating that the judgment was ordered on motion of Wright, instead of Monell, as in the other. The new papers, and such of the original ones as had not been changed, were then fastened together, and subsequently were presented to Judge BOOKSTAVER, who...

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