People v. Buckley

Willard Bartlett, J. :

That portion of section 87 of the Penal Code which is material to the case at bar is as follows : “ A person who, with intent to effect or facilitate the escape of a prisoner, whether the escape is effected or attempted or not, * * * conveys to a.prisoner any information, * * * is guilty of felony, if the prisoner is held upon a charge, arrest, commitment, or conviction for a felony.”

The indictment is based upon the provision which I have quoted. It accuses John Buckley of “the crime of sending and conveying into a prison and to a prisoner confined therein charged with felony a letter or thing óf information with intent to thereby effect or facilitate the escape of a prisoner or prisoners then confined in said prison upon charges of felony.” The act charged as constituting the crime is the sending by the defendant to one William Carroll, a prisoner confined in' the Queens county jail upon the charge of burglary, of a letter with intent to effect or facilitate the escape of prisoners confined in the same jail upon charges of felony. The letter is set out in the indictment. It does not contain any information calculated directly to aid an escape; but it communicates to the recipient a somewhat complicated system of cipher writing, which the sender expresses the intention of using in a subsequent letter in which he will give the details of a plan for effecting the release of two of the defendant’s fellow-prisoners. The cipher consists of short marks above and below a straight line, resembling in some respects the symbols employed in stenography, and strikingly suggestive of the cipher solved by Sherlock Holmes, which forms the basis of Conan Doyle’s well-known story of “ The Dancing Men.”'

Upon the-trial the defendant admitted having sent this letter, but denied that he intended thereby to convey any information whereby the prisoners could effect their escape. There was testimony in behalf of the prosecution, however, tending to show that the intent of the sender must have been to facilitate such escape.

Assuming that intent to have existed, the question is whether the sending of a letter of this character constitutes the offense defined by that portion of section 87 of the Penal Code which has been quoted, or only an attempt to commit that offense. I am of the opinion that under this* indictment no conviction can be sustained for anything more, than an attempt. The pleader has-assumed, and I think correctly, that the information, the sending of which is prohibited by section 87, is only such as can have some tendency, if acted upon, to enable prisoners to escape from incarceration. Ho such information is conveyed by this letter. The writer promises to send information of this character hereafter, by means of the cipher which he sets out, but he expressly withholds the details of his plan for future communication through the instrumentality of that cipher. Such, at least, is the conclusion which might be reached by a jury upon a consideration of the letter itself in the light of the evidence in the record. The letter was obviously designed to be the first link in a chain of communication between the sender and the recipient. The omission' therefrom of the information which the statute is intended to prohibit, does not prevent it from being regarded as a step toward the furnishing of such information. If so,. I think the sending of the letter, with the intent to facilitate the escape of a prisoner confined upon a charge of felony, may well, be deemed an attempt to commit the crime denounced by section 87 of the Penal Code. To constitute an attempt there must be an overt act done with the intention of eventually committing the crime and having a tendency to effect its commission. Here was. the necessary overt act in the sending of the letter. The intent is sufficiently charged in the indictment, and, as I have said, a jury might well infer its existence from the evi•dence. But was the sending of the letter an act tending to effect the commission of the crime ? I think it was. It established, if . the missive were not intercepted, a secret method of communication between the parties to the correspondence, not innocent in its character, but intended to be employed for a criminal purpose. It is .argued in behalf of the appellant that the facts, charged in the indictment and proved upon the trial, constitute at most a preparation to commit a crime, being acts merely of a preliminary nature, and that such preparations have never been held to amount to an attempt to commit the offense in contemplation. This doctrine, that mere preparation can never be deemed an attempt to commit a -crime, has not been universally accepted, as is pointed out in the ■case of People v. Sullivan (173 N. Y. 122), where the opinion of the Court of Appeals was written by Cullen, J., and contains an interesting and instructive discussion of the law of this State relating to the elements necessary to constitute an attempt to commit a -crime. He shows that the courts of this State have not accepted the doctrine of the early English cases to the effect that in order to constitute an attempt the overt act must be the final one toward the completion of the offense, and of such a character that .unless interrupted the offense itself would have been committed. While conceding the difficulty of formulating any general rule by which to determine whether acts are too remote to amóunt to an attempt to commit a crime, he lays down this proposition as the result of his examination of the cases: “ Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an •attempt to commit the offense, whatever may be the rule as to his conduct before it reached that stage.” In the case at bar the sending. of the cipher placed it in the power of the defendant to communicate secret information for the purpose of promoting the' escape of prisoners in the jail to which the letter was sent. If, as a jury might have found, the interception of the letter alone prevented the defendant from sending such subsequent information he would be guilty of an attempt to commit a felony under section 87 of the Penal Code provided the proof also established the existence of the necessary criminal intent.

If I am correct in. these views it follows that the Conviction, which is for a felony under section 87 of the Penal Code and not for an attempt to commit such a felony, must be reversed; and as the indictment sets out facts Constituting an attempt only, the new trial must be confined to that charge alone. Por the guidance of the court upon such new trial! it may be well to point out that we-regard it as error to permit witnesses for the People, called in rebuttal, to characterize the testimony of witnesses for the defendant as untrue as was done upon the trial under review.

Hirschberg, P. J., concurred in. separate opinion, with. whom. Woodward, Jemes and Hooker, JJ., concurred.