People v. Hayes

• Decision Date: 16 January 1894
• Citation: 140 N.Y. 484,35 N.E. 951
• Parties: PEOPLE v. HAYES.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 484

35 N.E. 951

PEOPLE

v.HAYES.

Court of Appeals of New York.

Jan. 16, 1894.

Appeal from supreme court, general term, first department.

William B. Hayes was convicted of perjury, and appeals. Affirmed.

Geo. M. Curtis,(David B. Hill, of counsel,) for appellant.

De Lancey Nicoll, Dist. Atty., (H. B. B. Stapler, Asst. Dist. Atty., of counsel,) for the People.

PECKHAM, J.

In January, 1891, there was pending in the supreme court of this state an action brought by one Annie M. Keating against the above defendant. The action was brought to recover on a promissory note alleged to have been made by defendant, dated New York, October 27, 1887, and payable to the order of Annie M. Keating two years after the date thereof, for some $2,000, with interest at 6 per cent. Judgment by default was entered January 31, 1891, against the defendant, in Monroe county, for the full amount of the note. A motion was subsequently, and in April, 1891, made, on the part of the defendant, to open that default, and for the purpose of that motion the defendant, in New York county, swore to an affidavit that he never owed Annie M. Keating a dollar in his life; that he had never given to her a promissory note, and that he had never seen the note upon which the action was brought, and knew nothing whatever about it; that at the time the note bore date the defendant was in Florida, and remained there the whole winter; and that he went there the 1st of September, 1887, and did not return until May, 1888. The default was opened, and an answer was thereupon interposed, setting up substantially the facts as contained in the affidavit. The action is still pending, never having been brought to trial. In January, 1892, the defendant was indicted by the grand jury of the county of New York for perjury in swearing to the affidavit; the indictment averring that the allegations of fact set forth in the affidavit, and above mentioned, were false, to the knowledge of the defendant, and that in swearing to them the defendant, had committed willful and corrupt perjury. In February, 1893, the defendant was placed on trial for the offense in the court of general sessions of New York. He had previously been tried at the same term upon the same indictment, and the jury had disagreed. Upon the second trial the defendant was convicted, and sentenced to imprisonment, in the state prison for eight years; and he is now undergoing such imprisonment, a stay of proceedings after the conviction having been refused. From an affirmance of the judgment by the general term the defendant has appealed here. The counsel for the defendant has argued several grounds for a new trial, some of which will be now referred to:

1. It is claimed on behalf of the defendant that when it appeared, as it did in the course of the trial, that the civil suit brought by Annie M. Keating against him had not yet been tried and determined upon its merits, the court should have deferred the trial, upon its own motion, until the determination of that action. It is conceded that no motion was made to postpone the trial of the indictment until after the determination of the civil action. The record does show that the counsel for the defendant, in the course of the trial of the indictment, and after a large amount of evidence had been given, made the objection that no indictment for perjury could stand while the action in which it is alleged it was committed is still undetermined, and that the court had no jurisdiction to proceed with the trial of the indictment. This objection was overruled. Again, the counsel asked the court to charge the jury that the court had no jurisdiction to try the indictment until the determination of the civil action. This was refused, and an exception taken. The court committed no error in refusing to hold as requested by the counsel. It is not a question of jurisdiction, at all. The court had jurisdiction over the offense, and over the person of the defendant, and whether the civil suit had or had not been determined was a matter of not the slightest importance upon that question. The English authorities cited in the brief of counsel only show what is said to have been the practice in the English courts, which was to postpone the trial of the indictment until after the disposition of the civil action, not because the court had no jurisdiction to try the indictment before that event, but because, as matter of judgment, it was thought better to take such a course. Rex v. Simmons, 8 Car. & P. 50, 34 E. C. L. 603, note a. The rule in Pennsylvania does not show that the court has held that there was a lack of jurisdiction. Com. v. Dickinson, 5 Pa. Law J. 164. The rule is one of convenience and propriety, addressed to the sound discretion of the court; and the attention of the court should be called to the matter before entering upon the trial, and an application made to postpone on that ground. Upon this subject, we cannot add to what has already been said at the general term.

2. It is also urged that the court had no power to sentence the defendant, because the law which was in force at the time of the sentence was, as to the defendant, an ex post facto law. The perjury is alleged in the indictment to have been committedin 1891, at which time the statute provided that any one convicted of perjury, in any case other than upon the trial of an indictment for a felony, should be punished for not less than 2 nor more than 10 years. Before the trial the statute was amended (chapter 662, Laws 1892) by leaving out the minimum limitation of the term of imprisonment, so that the punishment might be imprisonment for a less, but could not be for a greater, term than under the statute thus amended. A statute which permits the infliction of a lesser degree of the same kind of punishment than was permissible when the offense was committed cannot be termed or regarded an an ex post facto law. The leading object in prohibiting the enactment of such a law in this country was to create another barrier between the citizen and the exercise of arbitrary power by a legislative assembly. It was well understood by the framers of our federal constitution that the executive was not the only power, in a government such as they were about to establish, which would require constitutional limitations. The possible tyranny by a majority of a representative assemblage was well understood and appreciated, and there were for that reason many provisions inserted in the constitution limiting the exercise of legislative power by the federal and also by state legislatures. Bills of attainder and ex post facto laws had at that time a quite well understood meaning. The former was a legislative judgment of conviction; an exercise of judicial power by parliament without a hearing, and in disregard of the first principles of natural justice. Such bills had been passed in England, and the parties thereby condemned had been put to death. The ex post facto law was regarded as a law which provided for the infliction of punishment upon a person for an act done, which, when it was committed, was innocent. 1 Bl. Comm. marg. p. 46. Enlarging upon this definition as being of the same species, and coming within the same principle, a law which aggravated a crime, or made it greater than it was when committed, or one which changed the punishment,or inflicted a greater punishment than the law annexed to the crime when committed, or a law which changed the rules of evidence, and received less or different testimony than was required at the time of the commission of the crime, in order to convict the offender, was included in the definition of an ‘ex post facto law.’ Calder v. Bull, 3 Dall. 386, per Chase, J., at 390. In the case just cited Mr. Justice Chase said that the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment in consequence of such law; that it was an additional bulwark in favor of the personal security of the subject,-to protect his person from punishment by legislative acts having a retrospective operation. No act that mollified the rigor of the criminal law was regarded as an ex post facto law, but only a law that created or aggravated the crime, increased the punishment, or changed the rules of evidence in order to secure conviction. The same view of the subject was taken by Denio, J., in Hartung v. People, 22 N. Y. 95, at 105. See, also, Shepherd v. People, 25 N. Y. 406. Nowhere is it suggested that legislative interference by way of mitigating the punishment of an offense could be regarded as an ex post facto law, if applicable to offenses committed before its passage. There is no reason for any such holding. It was never supposed that constitutional obstacles would be necessary in order to prevent the improper exercise of legislative clemency. There was little to fear from that quarter upon such a subject. Those who framed the constitution were not engaged in creating obstacles to be placed in the path of those legislators who desired, by legislative enactment, to exercise clemency towards offenders, nor were they anxious lest those who were intrusted with power should be disinclined to exercise it with sufficient sternness. Human experience had furnished them with no examples of danger from that direction, and their anxiety on that account cannot be discerned from a perusal of the federal constitution. In many, if not in most, cases, the reasons for mitigating the severity of the punishment for any particular kind of crime would apply with equal force to those cases in which the crime had been committed before, as well as to those in which the crime might be committed subsequent to, the enactment of the law; and we are aware of no policy which prevents such a construction of the constitutional provision as would permit that kind of a retrospective act. That it materially affects the punishment prescribed for a crime is not...