People v. Jaehne

Decision Date05 October 1886
CourtNew York Court of Appeals Court of Appeals


Appeal from judgment of general term of supreme court, First department, affirming a judgment rendered against defendant in the court of oyer and terminer in the city and county of New York, convicting him of the crime of bribery.

In the year 1884, defendant was a member of the board of aldermen of the city of New York, and, as such, a member of the common council of that city. The indictment charged that in the month of August, 1884, there was pending before said board of aldermen an application of a corporation, the Broadway Surface Railroad, for the consent of said board, as provided by law, to construct and operate a railroad on Broadway, in the city of New York; that at the time aforesaid the defendant agreed, with some person to the grand jury unknown, to receive for his vote and influence in favor of said application the sum of $20,000.

Roger A. Pryor and Rich'd S. Newcombe, for appellant, Henry W. Jaehne.

De Lancey Nicoll, for the State.


The principal question on this appeal is whether the crime of bribery, committed by a member of the common council of the city of New York, is punishable under the Penal Code, or only under the New York city consolidation act of 1882. The materiality of the question presented lies in the fact that the defendant was indicted and convicted of bribery, as a member of the common council of the city of New York, under section 72 of the Penal Code, and was sentenced to imprisonment in the state prison for the term of nine years and ten months, pursuant to the provisions of that section, whereas, if he was punishable under the consolidation act of 1882, the maximum punishment by imprisonment could not have exceeded two years in the penitentiary.

After a careful consideration, we have reached the conclusion that section 58 of the consolidation act is superseded by section 72 of the Penal Code, and that the crime of bribery committed by a member of the common council of the city of New York is defined and made punishable by that section. In determining this question, it is to be assumed that the Penal Code was the later enactment, although in point of fact it was passed prior to the consolidation act.

The Penal Code was passed July 26, 1881, and took effect December 1, 1882. The consolidation act was passed July 1, 1882, and took effect March 1, 1883; but section 2143 of the consolidation act expressly declares that, ‘for the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the first day of January, A. D. 1882. All acts passed after such date, and the Penal Code, are to have the same effect as if passed after this act.’

By the express prescription of the legislature, therefore, the Penal Code, although enacted before the consolidation act, is to have the same effect upon the consolidation act as if it had been passed after that act. This provision, although somewhat anomalous, does not, as we can perceive, transcend the legislative power. It subordinates the consolidation act to the Penal Code wherever the two statutes are in conflict; and, moreover, what is material to notice, the provision affords the plainest implication that, in the sense of the legislature, there were or might be penal provisions in the consolidation act in conflict with the Penal Code. For the purpose of construction, the legislature has declared in what order of time the two statutes shall be deemed to have been enacted, and, there being no question of legislative power, it is the plain duty of courts to construe the two statutes in accordance with this direction.

Section 58 of the consolidation act is a re-enactment of section 100 of the charter of 1873, which in turn was a re-enactment of section 114 of the charter of 1870. It is sufficiently specific, for our present purpose, to state that the section makes it a felony for any person to give or promise to any member of the common council, or any municipal officer, any money or valuable thing, with intent to influence his official action, or for any such officer to accept any such gift or promise, under any agreement or undertaking that his vote, opinion, judgment, or action shall be influenced thereby; and subjects the bribe-giver, upon conviction, to imprisonment in the penitentiary for a term not exceeding two years, or to a fine not exceeding $5,000, or both, in the discretion of the court; and the bribe-taker, on like conviction, to the same punishment, by fine or imprisonment, or both, and, in addition, subjects him to a forfeiture of his office, and disqualifies him from holding any office under the city of New York.

Section 72 of the Penal Code is in the following language:

Sec. 72. A judicial officer, a person who executes any of the functions of a public office not designated in titles 6 and 7 of this Code, or person employed by or acting for the state, or for any public officer in the business of the state, who asks, receives, or agrees to receive, a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding, or any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years, or by fine of not more than five thousand dollars, or both. A conviction also forfeits any office held by the offender, and forever disqualifies him from holding any public office under the state.’

It is material, at the outset, to inquire whether the offense of bribery, committed by municipal officers, is, as a general rule, embraced within and punishable under this section of the Penal Code. If the section does not apply to the bribery of a municipal officer in any case, then, plainly, there is an end of the argument in support of this conviction. If, on the other hand, the section applies, in general, to this class of officers, then it becomes necessary, in order to reverse the conviction, that it should be found that the special case of bribery committed by municipal officers in the city of New York is excepted, or in some way taken out of the operation of this section. The comprehensive character of the provisions of the Penal Code relating to bribery, both in respect to the definition of the offence and the officers by whom it may be committed, is apparent upon the most cursory reading. They form to a great extent the subject of three titles. Title 6 relates to crimes against the executive power of the state, and prescribes the punishment for giving or offering bribes, or for the asking or receiving of bribes by executive and administrative officers. Title 7 relates to crimes against the legislative power of the state, and contains provisions for the punishment of bribery of members of the legislature. Title 8 is entitled, ‘Of Crimes against Public Justice.’ Section 71 prescribes the offense of giving or offering a bribe to a judicial officer, and certain other persons enumerated, connected either with the administration of justice or who exercise quasi judicial functions. Section 72, which prescribes the offense of receivingbribes, is not thus limited. It specifies judicial officers, but the specification is followed by words of the most comprehensive meaning, intended, apparently, to include in this final provision all public officers within the state, of whatever character or grade, not included within the previous titles. It, in terms, not only embraces a judicial officer, but also ‘a person who executes any of the functions of a public office’ not designated in titles 6 and 7. That it was not the intention to confine the section to judicial officers is manifest also from the subsequent designation in the same section of ‘a person employed by, or acting for, the state, or for any public officer in the business of the state;’ and also from section 78, which supplements section 72, and prescribes the offense of giving or offering a bribe to ‘a person executing the functions of a public office,’ although the bribery of a judicial officer is specially provided for by section 71.

It is plain that a member of the common council, or other municipal officer, is a person ‘who executes the functions of a public office,’ and we cannot doubt that municipal officers are within the purview of section 72. If this was less plain in the language of the section itself, there are cogent reasons for giving it this construction, in view of the antecedent legislation, and the presumed intention of the legislature. A reference to the successive statutes on the subject of bribery, commencing with the statute (chapter 181, Laws 1806) re-enacted by the Revised Laws of 1813, shows a constant tendency on the part of the legislature to extend the statutes against bribery to persons not embraced in previous laws. The statute of 1806 included only state officers and members of the senate and assembly. The Revised Statutes (2 Rev. St. 760) enlarged the enumeration of state officers in the previous statutes, and for the first time included judicial officers. The amendment of 1853 (chapter 539) still further extended the enumeration to ‘any member of the common council or corporation of any city in the state, or to the mayor, recorder, chamberlain, treasurer, or comptroller of such city, or any department of the government thereof.’ The act of 1869 (chapter 742) departed from the practice of special enumeration adopted in the previous statutes, and substituted words of general description,-‘any person holding office under the laws of this state;’ and the law of 1869 was in force until the enactment of the Penal Code.

It will be noticed that members of a common...

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