People v. Kuland

Citation193 N.E. 439,266 N.Y. 1
PartiesPEOPLE v. KULAND et al.
Decision Date27 November 1934
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Jacob Kuland and others were convicted, by the Court of Special Sessions, Borough of Queens, on December 14, 1933, of the crime of conspiracy in violation of Penal Law (Consol. Laws, c. 60), § 580, and sentenced to an indeterminate sentence in the state penitentiary. The Appellate Division, by a judgment and order (241 App. Div. 772, 270 N. Y. S. 532), reversed the judgment, and the People appeal.

Appeal dismissed in accordance with opinion.

Appeal from Supreme Court, Appellate Division, Second department.

Charles S. Colden, Dist. Atty., of Whitestone, L. I. (Mordecai Konowitz, of New York City, of counsel), for appellant.

John C. Judge, of Brooklyn, for respondents.

CROUCH, Judge.

The defendants were convicted of conspiring to commit a felonious assault upon one Michael Capura, by throwing sulphuric acid upon him. The Appellate Division reversed the judgments of conviction upon the law, dismissed the information, exonerated bail, and discharged the defendants. ‘There is,’ says the decision, ‘no competent evidence in the record showing that defendant Chegan had anything to do with the conspiracy alleged in the information, and without this the judgments may not be sustained. (People v. Hamilton, 165 App. Div. 546 .) 241 App. Div. 772, 270 N. Y. S. 532.

The effect of an acquittal or of a reversal as to one or more, but not all, of the defendants tried upon a charge of conspiracy, is an old and much debated question. Upon an indictment against two only, where no others are named, the rule commonly stated is that an acquittal or reversal as to one is an acquittal or reversal as to the other. 2 Wharton Crim. Law (12th Ed.) § 1657: Bishop Crim. Law (9th Ed.) § 801; State v. Tom, 13 N. C. 569.People v. Hamilton, 165 App. Div. 546, 151 N. Y. S. 125, cited by the Appellate Division as authority for its decision in this case, rests upon that rule. A contrary view is arguable. Cf. Jones v. Com., 31 Grat. (72 Va.) 836; Lord Coleridge, C. J., in The Queen v. Manning, 12 Q. B. Div. 241, 245; State v. Taylor, 160 Iowa, 328, 141 N. W. 946;Woody v. State, 10 Okl. Cr. 322, 136 P. 430, and note thereon 49 L. R. A. (N. S.) 479; 16 Harv. L. Rev. 142; 25 Harv. L. Rev. 288. Where three or more are indicted or named, while there is still diversity of opinion, the better view, apart from dry logic, is that acquittal or reversal as to one or more is not such repugnancy on the record as to require the setting aside of the conviction of the other or others. People v. Olcott, 2 Johns. Cas. 301, 1 Am. Dec. 168;People v. Miles, 123 App. Div. 862, 108 N. Y. S. 510, affirmed 192 N. Y. 541, 84 N. E. 1117; Browne v. United States (C. C. A.) 145 F. 1; Dufour v. United States, 37 App. D. C. 497;Motes v. United States, 178 U. S. 458, 20 S. Ct. 993, 44 L. Ed. 1150; Harv. Law Review, ubi supra.

‘The law must be practical.’ Crane, J., People v. Rizzo, 246 N. Y. 334, 337, 158 N. E. 888, 889, 55 A. L. R. 711. The case against Chegan as it now appears falls for lack of competent proof. The dismissal of the information as to him amounts to little if anything more than a verdict of not proven. Schindler v. Royal Ins. Co., 258 N. Y. 310, 313, 179 N. E. 711, 80 A. L. R. 1142. If the evidence against the other two proves them beyond a reasonable doubt to have been guilty, their conviction may stand. They chose, as they had the right to do, not to take the witness stand. If, because of that choice, Chegangoes free, while they suffer, they have no cause to complain.

We are, however, without jurisdiction to decide the case upon the record now before us. The orders of the Appellate Division fail to show that it exercised its power and duty to review the facts....

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15 cases
  • United States v. Oil Co Oil Co v. United States
    • United States
    • United States Supreme Court
    • May 6, 1940
    ...... was referred to again as follows: 'A hundred lawyers employed—the very cream of the American Bar, the very best legal talent that these people can obtain—every one of them working night and day with suggestions as to how the red herring can be drawn across the clear cut issue in this ...497, 510, 511; State v. Christianson, 131 Minn. 276, 280, 154 N.W. 1095; Commonwealth v. Bruno, 324 Pa. 236, 248, 188 A. 320; People v. Kuland, 266 N.Y. 1, 193 N.E. 439, 97 A.L.R. 1311; Browne v. United States, 2 Cir., 145 F. 1. There is a complete lack of any showing of abuse of discretion ......
  • People v. Bauer
    • United States
    • New York Supreme Court Appellate Division
    • September 11, 1969
    ...... In People v. Hamilton, 165 App.Div. 546, 151 N.Y.S. 125, the court held that a conspiracy involves of necessity the joint agreement of at least two parties and that it is necessary to prove the guilt of both in order to sustain the conviction of one. In People v. Kuland, 266 N.Y. 1, 193 N.E. 439, 97 A.L.R. 1311, it was held that upon such an indictment against two persons an acquittal or reversal as to one is an acquittal or reversal as to the other. (See also People v. Chaplin, 8 A.D.2d 286, 187 N.Y.S.2d 730.) . Page 47 .         It follows that the ......
  • People v. Mackell
    • United States
    • New York Court of Appeals
    • June 10, 1976
    ...... (Cohen and Karger, Powers of the New York Court of Appeals, § 201, p. 754.) .         Occasionally, the same rule was applied to orders of appellate courts which reversed and dismissed indictments and informations. (People v. Kuland, 266 N.Y. 1, 3, 193 N.E. 439, 440; People v. Mitchell, 142 N.Y. 639, 36 N.E. 1051.) However, the sounder and more well-established principle was that an order reversing and dismissing an indictment though recited to be upon the facts as well as on the law, presented a case within this court's ......
  • Com. v. Byrd
    • United States
    • United States State Supreme Court of Pennsylvania
    • August 15, 1980
    ......Monroe, 164 F.2d 471 (2d Cir. 1947), cert. denied, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed.2d 1113 (1948), dead, People v. Nall, 242 Ill. 284, 89 N.E. 1012 (1909), or even, in some instances, unknown, United States v. General Motors Corp., 121 F.2d 376, 411 (7th Cir.), ...922, 973 (1959). The only question still apparently open to any debate, see e. g., People v. Kuland, 266 N.Y. 1, 193 N.E. 439 (1934) (question is "arguable"), is whether an acquittal of all alleged co-conspirators should produce a different result. ......
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