People v. Sweeney

CourtNew York Court of Appeals
Citation106 N.E. 913,213 N.Y. 37
PartiesPEOPLE v. SWEENEY et al.
Decision Date10 November 1914

213 N.Y. 37
106 N.E. 913

SWEENEY et al.

Court of Appeals of New York.

Nov. 10, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Dennis Sweeney, John J. Murtha, and James F. Thompson were convicted of a conspiracy to pervert and obstruct justice, and the due administration of law, and from an order of the Appellate Division (161 App. Div. 221,146 N. Y. Supp. 637) affirming the conviction and affirming orders denying motions of defendants severally to inspect the minutes of the grand jury, on which the indictment was found, and denying motions of the defendants severally to dismiss and set aside the indictment, and an order granting a motion of the district attorney for the drawing of a special jury to try the issues formed by the plea of the several defendants to the indictment, and also affirming an order denying a motion for a new trial and in arrest, they appeal. Affirmed.

[106 N.E. 915]

[213 N.Y. 40]John B. Stanchfield, of New York City, for appellant Thompson.

213 N.Y. 39]Edgar T. Brackett, of Saratoga Springs, for appellant Sweeney.
A S. Gilbert, of New York City, for appellant Murtha.

Charles S. Whitman, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

[213 N.Y. 41]CHASE, J.

The defendants were indicted for a misdemeanor, in that they conspired to commit an act for the perversion or obstruction of justice or of the due administration of the laws. The statute on which the indictment is based is section 580 of the Penal Law . It provides, so far as material to the questions now considered, as follows:

‘If two or more persons conspire:

‘1. * * *

‘2. * * *

‘3. * * *

‘4. * * *

‘5. * * *

‘6. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws,

‘Each of them is guilty of a misdemeanor.’

[1][2] There were four persons indicted, and it was necessary, in order to sustain the indictment against either of them, that the conspiracy charged in the indictment should be shown to have been entered into by two or more persons. Such a conspiracy can be shown by a direct oral or written agreement entered into by and between them, or it can be inferred from conduct which discloses a concert of action and a common design and intent to accomplish the unlawful purpose.

[213 N.Y. 42]It appears from the indorsement on the indictment that four persons were sworn as witnesses before the grand jury, namely: Eugane F. Fox, Thomas W. Walsh, George A. Sipp, and Edward J. Newell. They were each, in fact, accomplices, and the court so charged the jury in submitting the case to them at the trial herein.

[3] The Code of Criminal Procedure expressly provides that ‘a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’ Code Cr. Proc. § 399. It also provides that ‘the grand jury can receive none but legal evidence.’ Section 256. And that an indictment should not be found by a grand jury unless ‘all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.’ Section 258.

It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury.

[4] The appellants severally asked the court to have a copy of the minutes of the minutes of the proceedings of the grand jury, which found said indictment delivered to them. It was the avowed purpose of the appellants to use such copy of the minutes to show that there was no evidence before the grand jury on which the indictment was found, other than the testimony of accomplices in the alleged crime. The court refused to give to the appellants a copy of the minutes, and they seek to review the order made by the court denying the motion for a copy of the minutes, but the decision of the court upon such motion rested to such an extent in discretion that it cannot be reviewed by this court. Eighmy v. People, 79 N. Y. 546, 560.

[5] After a denial of the motion for a copy of the minutes, a motion was made by the appellants severally to dismiss the indictment on the ground that it was wholly founded upon evidence of [213 N.Y. 43]accomplices. The motion was based upon the indictment and upon affidavits. The affidavits state that the witness Fox was a patrolman of the municipal police force of the city of New York, and had been indicted by the grand jury for receiving bribes for protecting said Sipp in maintaining a disorderly house, and that he had pleaded guilty to said offense and was awaiting sentence thereon; that the witness Walsh was a captain of police in said municipal police force, and had pleaded guilty to an indictment charging him with receiving bribes from said Sipp to protect him in maintaining said disorderly house, and that he was awaiting sentence thereon; that the witness Newell had pleaded guilty to an indictment for persuading the witnesses Sipp to leave the jurisdiction of the court and not to testify against the witness Fox, and that he had pleaded guilty to said indictment and was awaiting sentence

[106 N.E. 916

thereon. The affidavits also state that it appears on the face of the indictment that each of the four witnesses sworn before the grand jury were accomplices in the commission of the offense charged in the indictment against the defendants. It does not appear from the affidavits upon which said motions were based, apart from what they state appears on the face of the indictment, that the evidence before the grand jury, which found the indictment against the defendants, shows that all of the witnesses before the grand jury were accomplices of the defendants. The statements made in the affidavits upon which the motions were based may have all been true, and yet the testimony before the grand jury may not have disclosed that the witnesses sworn before them and all of them were parties to the crime charged against the defendants or accomplices of the defendants in the commission thereof. The grand jury was ‘entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records in the county’ (Code Cr. Proc. § 261), and they could have received in evidence written admissions and [213 N.Y. 44]writings of any kind bearing upon the subject under consideration if such writings were fully authenticated without oral proof from witnesses or if proven by one of the four witnesses named who had not been shown before them to be an accomplice. It is also the duty of a member of a grand jury who knows that a crime has been committed to declare the same to his fellow jurors. Code Cr. Proc. § 259.

It may be assumed from the indictment that the witness Sipp was necessarily an...

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