People v. Glennon

• Decision Date: 28 April 1903
• Citation: 175 N.Y. 45,67 N.E. 125
• Parties: PEOPLE v. GLENNON.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 45

67 N.E. 125

PEOPLE

v.GLENNON.

Court of Appeals of New York.

April 28, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Edward G. Glennon was convicted of willful neglect of duty as a public officer, and from an order of the Appellate Division (79 N. Y. Supp. 997, 1141) he appeals. Reversed.

Gray and Bartlett, JJ., dissenting.Judson S. Landon, Abram I. Elkus, Joseph M. Proskauer, and Ira Leo Bamberger, for appellant.

William Travers Jerome, Dist. Atty. (Howard S. Gans, of counsel), for the People.

CULLEN, J.

The appellant, a patrolman of the police force of the city of New York, was indicted and convicted for neglect of duty in failing to restrain and repress a house of prostitution kept by one Laura Maurat at No. 148 West Thirty-Third street in said city, and in failing to arrest the persons keeping and maintaining the same. The house was situated in the precinct to which the appellant was attached. Though not technically a detective, the duties which he was assigned to perform were of a similar character to those of a detective, he being what is known as a ‘plain clothes man’; that is to say, he did not wear his uniform, or anything to call attention to his position, while on his rounds. The attention of the captain of the precinct had been called to the character of the house mentioned by complaints of various persons and by notice from his superiors, and the appellant, with certain other officers, was instructed by the captain to watch the house, ascertain its character, and, if it proved a disorderly house, to break it up, and arrest the persons maintaining it. It was conclusively proved by men who visited the place that it was a house of prostitution. Some of these witnesses were officers or agents of the Society for the Prevention of Crime. They seem to have had no difficulty whatever in obtaining access to the house. The place had been maintained as a house of prostitution for over two years, when it was closed, and the proprietor and inmates were arrested on a warrant issued on the complaint of such officers. A number of the neighbors testified that during this period women, inmates of the house, either from the windows or from the stoop, frequently and constantly solicited men passing by. Men in numbers visited the house. The peace and order of the neighborhood were disturbed by the noise of singing and musical instruments and by the flagrant misconduct of the house's occupants. Without going into further details, it is sufficient to say that, if the testimony of these witnesses was credited, it was impossible for a passer-by to mistake the nature and character of the house. On the other hand, the defendant testified that he carefully watched the house, and noticed no signs of disorderly or immoral conduct on the part of its inmates; that he endeavored to obtain entrance to it several times, but was refused; and that he saw nothing that justified his either arresting the occupants or making a complaint. In this he was corroborated by the testimony of other policemen and some of the neighbors. Whitney, a discharged agent of the Society for the Prevention of Crime, testified that he had a conversation with the defendant about the character of the house; that the defendant said that it had been there for some time, and he did not want to break it up, unless it was necessary to do so, and asked him (Whitney) as to the probable action of the society. He also requested Whitney to give him notice of any anticipated raid on the house by telephoning simply its street number to the station house. In pursuance of this conversation, but only to test the conduct of the appellant, Whitney telephoned to the station house. The defendant was not there at the time, but subsequently met Whitney, and gave him $100 for sending the notice. The defendant denied the whole of Whiteney's statement. The defendant, having been convicted, was sentenced to imprisonment for the term of six months. his conviction was affirmed by the Appellate Division, and from the judgment of that court this appeal is taken.

Numerous exceptions to the admission of evidence were taken on the trial, some of which it is necessary to notice in detail. It is contended that proof of the conduct of the inmates of the house and acts done while the defendant was not proved to have been present was not competent evidence against him. We think the testimony admissible on two grounds. The foundation of the charge against the defendant was that the place was a house of prostitution. This was the first fact that it was necessary for the prosecution to establish. The evidence was clearly competent for this purpose, but its effect was not by any means limited to that fact alone. The defendant was detailed to watch the house. It is true he testified that he witnessed no immoral or disorderly acts, but the jury was not bound to believe his statement. While a single occurrence, or even several occurrences, transpiring when the defendant was not shown to be present, would not be sufficient to prove that he had observed the character of the house, or to charge him with neglect of duty, still the acts and behavior of the inmates and the scenes which occurred at the house might be so numerous, so constant, and extend over so long a period of time, that the jury would be justified in finding, as a matter of fact, either that the defendant did actually witnesssome of them, or that, if he failed to do so, it was because he purposely and willfully refrained from observing them. If, in addition to this, the jury credited the story of Whitney, the evidence was ample to show that the defendant knew the character of the house, and willfully refrained from interfering with it. These views also dispose of the objection that the court erred in refusing, at the close of the evidence, to instruct the jury to acquit the appellant.

Evidence of the occurrence when Whitney telephoned to the station house as to the proposed raid on the premises 148 West Thirty-Third street, though the defendant was not at the station house at the time, was rendered competent by the subsequent admission of the latter that he had heard of it, and by his payment of money to Whitney for his services. The testimony of Whitney as to his conversations with the defendant concerning poolrooms was incompetent, because it had no bearing on the case, but, having been subsequently stricken out, constituted no error. Several communications and reports from the captain of the precinct, the inspector, and others, were admitted in evidence. These were not competent, except the letter of the officer from the Society for the Prevention of Crime, which was shown to the defendant at the time he was set at work for the suppression of the house and gave him notice of its character. The error, however, was harmless. There was nothing in these papers prejudicial to the defendant. The rules of the police department were properly received. The head of the department is authorized to make rules for its government, and the intentional violation of those rules would tend to establish a willful neglect of duty.

The evidence that Capt. Chapman raided the house, and drove out its inmates, was incompetent. This occurred before the times mentioned in the indictment, during which it is charged the defendant willfully neglected his duty, and he was not shown to have had any knowledge or information of the occurrence.

The most serious question presented by the rulings on evidence is the refusal of the trial court to permit Whitney to be interrogated as to whether his bail had not been increased by the district attorney. Whitney himself, after his discharge from the society, seems to have been engaged to some extent in illegal occupations. He was arrested for maintaining a poolroom, and gave bail to answer to the charge. The morning of the trial of this case he was again arrested, and the defendant sought to prove by him that his bail had been increased to $10,000, on failure to furnish which he was still kept in arrest. Whitney told the district attorney of his transctions with the defendant. Now, though the evidence, other than that of Whitney, was sufficient to warrant the submission of the case to the jury, still his testimony bore most strongly against the defendant. Indeed, if Whitney was credited, it is difficult to see how there could be any question as to the defendant's guilt. Therefore it was most important to the defendant to show, as...