People v. Willett

• Decision Date: 12 January 1915
• Citation: 107 N.E. 707,213 N.Y. 368
• Parties: PEOPLE v. WILLETT.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 368

107 N.E. 707

PEOPLE

v.WILLETT.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

William Willett was convicted of procuring a nomination for a public office upon a promise and payment of a valuable consideration, and he appeals. Affirmed.

For opinion below, see 164 App. Div. 1,149 N. Y. Supp. 348.

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered October 2, 1914, unanimously affirming a judgment of the Kings Trial Term, entered upon a verdict convicting the defendant of the crime of requesting and accepting nomination for a public office, upon the understanding and promise of a valuable consideration, and upon the payment of a valuable consideration.

The defendant was indicted in Kings county by indictment as follows:

‘The grand jury of the county of Kings by this indictment accuse William Willett of the crime of requesting and accepting a nomination for a public office upon the understanding and promise of a valuable consideration and upon the payment of a valuable consideration committed as follows: The defendant above named, prior to October 7, 1911, did request one Joseph Cassidy and one Louis T. Walter, Jr., to procure for him from the Democratic judicial convention of the Second judicial department of the state of New York to be held on or about the 6th day of October, 1911, his nomination as a candidate for the office of Justice of the Supreme Court of the state of New York, and said office being a public office, to be voted for at the election to be held in said judicial district on November 7, 1911, and to cause him to be nominated therefor, and did promise to pay and contribute and did pay and contribute therefor to them, the said Cassidy and Walter, a valuable consideration, to wit, a sum of money the exact amount of which is unknown to this grand jury, and the said Cassidy and Walter thereupon promised, in consideration thereof, to procure such nomination for the defendant.

‘On October 6, 1911, in the county of Kings there was held the regular Democratic judicial convention of the Second judicial district, the same being a convention duly and regularly held for the purpose of selecting and nominating three candidates for the office of Justice of the Supreme Court according to the law of the state of New York and the rules of said Democratic party in said state. The said Walter was a delegate to said convention, and did there offer in nomination said defendant as a candidate for said public office, and did vote for him therefor in return for the promise and payment of such valuable consideration by defendant to said Cassidy and Walter as aforesaid. The said defendant was nominated by said convention as a candidate for Justice of the Supreme Court of the state of New York and the said defendant thereafter accepted such nomination in said county of Kings on October 6, 1911.

‘The said nomination was caused and procured by said Cassidy and Walter upon and in return for the promise and payment by defendant to them of said consideration aforesaid and by their influencing and inducing delegates to said convention to vote for said defendant for said nomination and by other means exerted by them to this grand jury unknown.

‘James C. Cropsey, District Attorney.’

Joseph Cassidy, referred to in the indictment, was at all the times mentioned therein the chairman of the Democratic general committee in the county of Queens. Louis T. Walter, Jr., referred to in the indictment, was at all times mentioned therein an intimate friend of Cassidy, and for 15 years had been a client and intimate friend of the defendant.

The Second judicial district is composed of several counties, including the counties of Kings and Queens, and each assembly district in said judicial district is entitled to be represented in the judicial convention mentioned by one delegate. Cassidy, Walter, and the defendant were each residents of the county of Queens, and Walter was a delegate to said judicial convention from on of the assembly districts of said county. Other facts appear in the opinion.Robert H. Elder, of New York City, for appellant.

James C. Cropsey, Dist. Atty., of Brooklyn, for the People.

CHASE, J. (after stating the facts as above).

The unanimous affirmance of the judgment of conviction makes it unnecessary for us to consider the facts shown by the record, except so far as it may be necessary in the consideration of the alleged errors of law. The defendant now insists that the indictment does not state facts sufficient to constitute a crime .

The specific claim of the defendant is that the indictment is framed under section 775 of the Penal Law, and that such section does not apply to a person who requests that he be nominated for office by a party convention and offers to pay and pays a valuable consideration to a political or party leader who is sufficiently influential among the delegates to actually control the action of the convention, and which party leader and one of the delegates offers to procure or cause the nomination on payment of such valuable consideration.

[1] The defendant did not demur to the indictment or make any motion, objection to evidence, or request for instruction to the jury based upon the insufficiency of the indictment. The claim that a crime within the meaning of section 775 of the Penal Law was not charged in the indictment was apparently an afterthought .

It is now claimed by the defendant that the objection to the sufficiency of the indictment should be considered by this court, because he made a motion to set aside the verdict and for a new trial, upon the ground, among others, ‘that the verdict was against the law.’ A motion was made for an arrest of judgment, but the only ground stated was:

‘That the grand jury of Kings county had no jurisdiction to find the indictment herein, and the court did not have jurisdiction of the offense charged, for the reason that the acts and the offense thereof did not take place in the county of Kings.’

The motions in no way suggested that the indictment did not set forth facts sufficient to constitute a crime. The sufficiency of the indictment was recognized, or at least assumed. If it had been intended on the motion for a new trial or in arrest of judgment to raise the question of the sufficiency of the indictment, the attention of the court should have been specifically called to such claim. Unless a motion founded upon the indictment and the insufficiency thereof is made before or at the time when the defendant is called for judgment, the objections thereto are waived. Code Criminal Procedure, §§ 323, 331, 467, 469; People v. D'Argencour, 95 N. Y . 624;People v. Wiechers, 179 N. Y. 459, 72 N. E. 501,1 Ann. Cas. 475;People v. Sheffield Farms-Slawson-Decker Co., 206 N. Y . 79, 99 N. E. 181.

The appeal was argued with the appeal in People v. Cassidy, 213 N. Y. 388, 107 N. E. 713, decided herewith, in which the question whether the facts stated in the indictment constitute a crime is also raised. As the question has been fully argued and must be determined in the decision of the appeals so argued, we will consider the question in this opinion.

[2][3] We are of the opinion that the facts stated in the indictment do constitute a crime. Penal laws defining crimes against the elective franchise have been enacted from time to time during our history, and have increased in number during the last three or four decades. They have not only increased in number, but have been modified and developed to meet the public demand to effect, secure, and enforce honesty in selecting persons for public office.

The Penal Code, enacted in 1881, contained a title (title 5) headed ‘Crimes Against the Elective Franchise.’ It was in 1890 that a law was passed providing for an official ballot at the general elections and also for personal registration in cities. That title was also changed from time to time prior to 1892, and, as it then existed, among many other things relating to the elective franchise, contained, in substance, the provisions now included in section 751 of the Penal Law. Prior to 1892 much had been said and written about the power wielded by political leaders, or so-called ‘bosses' in the state and in the subdivisions thereof. In the second edition of ‘The American Commonwealth,’ by James Bryce, which was issued in 1891, in discussing American politics and the power of individuals to control party nominations, he says:

‘There is usually some one person who holds more strings in his hand then do the others. Like them, he has worked himself up to power from small beginnings, gradually extending the range of his influence over the mass of workers and knitting close bonds with influential men, outside as well as inside politics, perhaps with great financiers or railway magnates whom he can oblige and who can furnish him with funds. * * * He dispenses places, rewards the loyal, punishes the mutinous, concocts schemes, negotiates treaties. * * * Another useful expedient has been borrowed from European monarchies in the sale of nominations and occasionally of offices themselves. A person who seeks to be nominated as a candidate for one of the more important offices, such as a judgeship or a seat in the state Senate or in Congress, is often required to contribute to the election fund a sum proportioned to the importance of the place he seeks, the excuse given for the practice being the cost of elections; and the same principle is occasionally applied to the gift of nonelective offices, the right of appointing to which is vested in some official member of a ring-e. g., a mayor.’

By chapter 693 of the Laws of 1892, title 5 of the Penal Code was generally amended, and several sections were added, including section 41v, which was, except in punctuation, the same as section 775 of the present Penal Law. It was enacted, as we...