People v. Sweeney

• Decision Date: 10 November 1914
• Citation: 106 N.E. 913,213 N.Y. 37
• Parties: PEOPLE v. SWEENEY et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 37

106 N.E. 913

PEOPLE

v.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.John B. Stanchfield, of New York City, for appellant Thompson.

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.

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.

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 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 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 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 accomplice in the consummation of the conspiracy charged therein. It may even be assumed therefrom that the witness Newell, as the attorney for Sipp, was an accomplice in the conspiracy charged therein by reason of the fact of his acting for Sipp as attorney and agent in accepting the promise and guaranty of Hussey that the money which had been so as aforesaid promised to the witness Sipp would be paid on condition that he (Sipp) would so leave and remain without the state of New York.

So far as appears by the indictment itself, the witness Walsh and the the witness Fox performed the acts stated in the indictment only in connection with the defendant Sweeney individually, and without knowledge of any conspiracy as between the defendants or either of them, and not as an accomplice with the defendants in the conspiracy which is charged as a crime by the indictment. All of the statements alleged in the indictment may be true, but the facts so charged, if true, would not warrant a conviction of the witness Walsh or the witness Fox for conspiracy with the defendants.

[6][7] The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary. People v. Glen, 173 N. Y. 395, 400,66 N. E. 112, 114. This court stated in the Glen Case that:

‘Our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony.’

This statement was made in considering the effect of section 313 of the Code of Criminal Procedure, which provides when an indictment must be set aside by the court in which the defendant is arraigned and upon his motion. It must be considered also in connection with sections 314, 315, and 316 of said Code, relating to procedure, and in view of the power of the Legislature, as stated in that case, to regulate mere matters of procedure in all actions and proceedings, both civil and criminal. The court did not say, and it does not mean to hold, that an indictment should be set aside when it is found at the trial or on motion that the witnesses sworn before the grand jury were, in fact, accomplices, without showing that it so appeared to the grand jury, and it also appeared that there was no corroborative testimony before such jury.

[8] The grand jury is an independent body, and the indictment is a record of its conclusions. It can be set aside at any time when it appears that the evidence before the grand jury was insufficient on which to sustain it; but otherwise, when presented in due form, it imports absolute verity. On the trial neither the court nor the jury can have anything to do with the proceedings in the grand jury room. Their only office is to inquire whether the defendants are guilty of the offenses laid to their charge. People v. Hulbut, 4 Denio, 133, 47 Am. Dec. 244. A grand jury, although for some purposes a part of the court in connection with which it is found, is in some...