People v. Katz

Scott, J.:

The defendant appeals from, a judgment convicting him of grand larceny in the first degree.

The basis of the charge against the defendant, as redeveloped upon the trial, was the allegation that he conspired with one Clark, described as a curb broker, one Persch and one Sherwood, the cashier of a stock brokerage firm, to steal certain stock, the property of one Heinze. The scheme devised to obtain possession of the stock was bold and ingenious, and ' involved the intervention of the officers of a trust company. It was not charged that defendant actually and physically stole the stock. .He was claimed to be what, in former days, would have been termed “an accessory before the fact,” but was charged and indicted as a principal under the provisions of section 29 of the Penal Code (now Penal Law, § 2). He was indicted" alone, Clark, Sherwood, Persch and Field being separately indicted. Defendant’s indictment does not mention any one else as having been concerned in .the larceny, and does not explain that defendant is charged with the crime because he aided and abetted others in committing it. It simply charges him, substantially in the words of the statute, with having committed the crime. It is strongly urged that such an indictment is insufficient under the circumstances of the case, and that the indictment should have alleged who is said to have physically committed the crime. The Court of Appeals in People v. Bliven (112 N. Y. 79) seems to have entertained a contrary opinion, and it is a well-known fact in the legal history of this State that the same contentions now made by the defendant were vehemently, urged upon the Court of Appeals on the motion for a reargument of the appeal from the conviction for murder in People v. Patrick, and were necessarily overruled when the motion for reargument was denied. (People v. Patrick, 183 N. Y. 52.) We are of the opinion, therefore, that this objection to the indictment is not well founded.

We have examined and re-examined the record with great care, and with the aid of exhaustive and able briefs on the part both of the People and of the defendant. We do not consider it necessary to recite at length the evidence upon which the jury reached.their verdict. To prove the conspiracy and defendant’s alleged relation to it the People were, of course, obliged to rely upon the evidence of persons whose character was no better than that which it was sought to attribute to the defendant himself, including at least two self-confessed participants in the conspiracy. They were, however, for the most part, the defendant’s self-chosen associates in other matters, if not in the particular crime charged against him. Their veracity and that of defendant, who contradicted them flatly, was essentially a question for the jury, which, as the record shows, was a special jury drawn from the list authorized by chapter 602 of the Laws of 1901. This special jury list, as the statute requires and as is the fact, is composed of persons specially selected from the general jury list after careful personal examination as to their general intelligence and experience as jurors. We should hesitate long before overturning, on a mere question of veracity, a verdict reached by such a jury, especially when the defendant has been represented, as in this case, by counsel of long experience in criminal trials, and of unquestioned energy and devotion to his client’s cause. It would be easy to go through this record, as it would in many other cases, and argue from the evidence as it appears in type, that the jury must have believed some witnesses whom it should not have believed, and disbelieved some whom it should have believed; but it would also be equally easy to pick out corroborative evidence in many places which, taken in connection with the testimony of the People’s witnesses, would fully justify the verdict. It is not our duty to usurp the functions of the jury and to examine the evidence de novo, with a view to determining whether or not, on the same evidence, we'should have arrived at the same result as that at which the jury arrived. So long as the verdict is not clearly against the evidence, as we think it is not in this case, and it appears that the defendant has had a fair trial before an impartial judge and an intelligent jury of his own selection, as well as the aid of competent counsel, we cannot feel that it is our duty to reverse the conviction because, perchance, if we had been sitting as jurors we might have decided differently. (People v. Taylor,. 138 N. Y. 398; People v. Shea, 147 id. 78; People v. Egnor, 175 id. 419; People v. Bodawald, 177 id. 408; People v. Long, 150 App. Div. 500; affd., 206 N. Y. 693.)

The record bristles with defendant’s exceptions, of which nearly 400 were taken during the course of the trial. Comparatively few of them are now relied upon, and of these some present no question requiring discussion here. Much stress is laid upon the fact that the court admitted evidence to be introduced concerning what is characterized as a different and distinct transáction. The conspiracy charged was that defendant and others had devised a plan to actually loan ITeinze a considerable amount of money upon collateral security of a value much larger than the sum loaned, and then to dispose of the collateral. To carry out this scheme it was necessary to find a well-known stock exchange house, or a bank or trust company to “clear this loan,” as it was called, or, in other words, to become the ostensible lender, as Heinze was unwilling to intrust his securities to an irresponsible lender. To obtain a firm or corporation to “clear this loan” which Would be of sufficient reputation to satisfy Heinzé, and at the same time to be sufficiently pliable to deliver the securities to the conspirators, was not the least difficult feature of the scheme. The evidence objected to was that of a broker named Schwed,. who testified that defendant solicited him to assist in finding a suitable intermediary. In our opinion the evidence was relevant as tending to show the nature of the conspiracy upon which the defendant had embarked, and the preparations which he made to carry it out. Evidence of preparation to commit a crime stands upon the same footing as evidence of previous attempts to commit it, and is always relevant. Thus in murder cases it has been held relevant to show that the accused redeemed a pawned revolver (People v. Scott,, 153 N. Y. 40), or practiced shooting at a mark (People v. McGuire, 135 N. Y. 639; People v. Youngs, 151 id. 210), or, where the crime was committed by stabbing, ground a knife (People v. Tice, 131 N. Y. 651). In the present case Schwed’s testimony merely tended to show that the defendant had endeavored to find a tool to use in committing the crime. It is contended that the court erred in admitting in evidence a statement made by one of the witnesses for the People (Clark) to his own counsel prior to the trial. Clark’s character and previous history were, as the district attorney frankly stated, none of the best. On his direct examination he had given testimony to establish the defendant’s guilt. He was subjected to a prolonged and unusually severe cross-examination, aimed at breaking down his credibility with the jury, and upon the cross-examination the defendant’s counsel himself read from and used parts of Clark’s previous statement to his own counsel. This statement substantially agreed with the evidence given upon the trial. The evident purpose of the defendant’s counsel was to persuade the jury that in giving his evidence upon the trial Clark was actuated by a motive to save himself at the expense of the defendant, and, therefore, that his evidence was untrustworthy. We are of the opinion that the evidence was properly received. The rule applicable to such a case is well settled by Matter of Hesdra (119 N. Y. 615) and Robb v. Hackley (23 Wend. 50). It is thus stated: “ Where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored, statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist.” The learned trial justice was at great pains to impress upon the jury the fact' that Clark’s previous statement was not received and could not be considered a proof of the facts therein stated, but was to be considered only with reference to its bearing upon the evidence given by Clark at the trial. For the same reason and under the rule of evidence above quoted, the defendant can take nothing by his exception to the admission of proof of former statements made by the witness Birmingham. Nor was it error to leave it to the jury to determine whether or not the witness Birmingham was an accomplice.' Such submission was, if anything, more rather than less than the defendant was entitled to demand. The court would probably have committed no error if it had held that Birmingham was not an' accomplice.

The other exceptions to which we deem it proper to refer relate to those taken or endeavored to be taken to the refusals to charge as requested by the defendant,

The charge of the trial justice was eminently fair, full and impartial. The defendant’s counsel took many exceptions to its language, in pursuance apparently of a general policy maintained throughout the trial, to except to everything, but now insists ■ upon only one, and that raises no question necessary to be discussed. Before the jury was charged counsel for the defendant handed to the court one hundred and two written requests to charge. - It is apparent that the court intended to incorporate into the charge practically all of these and in fact did so incorporate, either in paraphrase or in the language of the request, nearly every proposition thus submitted. That the court intended to charge all of the proper requests, and believed that they had been covered is evidenced by what took place at the end of the charge. Referring to the requests defendant’s counsel.said: “May they all go on the record and we have an exception to each one % ” To which the court replied: “ Certainly. The counsel have submitted to the court one hundred and two requests to charge, and the court grants an exception to' each and every request refused by the court, on the ground that they are already covered in the charge.”

It is very doubtful whether exceptions taken in this wholesale fashion raise any question of error. To submit so large a list of requests and then' interpose an omnibus exception amounts to little else than a trap “better adapted to confuse and trip a court, than to serve any purpose of justice. ” (People v. McCallam, 3 N. Y. Cr. Rep. 189, 198; affd., 103 N. Y. 587.) Counsel had been clearly and distinctly advised by the court that the reason for refusing to repeat- and recharge the several propositions embraced in the requests was “ that they are already covered in the charge. ” If some of the proper requests had been overlooked by the court, and thus not included in the charge, it was the duty of counsel to have called the attention of the court to the omitted propositions and ask specifically as to them that, the jury be instructed: (People v. Birnbaum, 114 App. Div. 480, 489.) Having failed to take this course, the defendant is not entitled as a matter of right to insist upon his exception, and we are not required, in consequence, to reverse the - judgment by reason of the exception unless we can clearly see- that the defendant has been prejudiced. We are satisfied that the defendant has not been prejudiced. The requests were not read in the presence of the jury, and the refusal to charge any of them, cannot have been accepted by the jury as tantamount to charging contrary thereto. (People v. Lumsden, 141 App. Div. 158, 169.) One of the requests (numbered 72 on the list) was that the jury be charged that “ the fact that two or more accomplices testify to the commission of a crime, does not dispense with the necessity of corroboration, and the same amount of evidence is required to connect the defendant with the crime as if there had been but one accomplice. ” The court had already charged fully upon the necessity for corroboration of the admitted accomplices, and while he had not adopted the words of the request above quoted, he had covered the same idea in language which an intelligent jury could hardly have failed to understand. If counsel desired a more ample charge on this subject he should have clearly indicated his desire by calling attention specifically to his request.

The other omissions to which our attention is called are those relating to the requests numbered 74 and 93, in which the court was requested to charge as to certain witnesses that: “If the jury believe that [the witness] wilfully testified falsely as to any material fact they are at liberty to disregard the entire testimony of [the witness] if they see fit.” This request is not covered by the main charge, but it is entirely certain that if counsel had been more explicit with the court and had directed its attention to the omission to charge as requested in this particular, the court would have instantly supplied the omission, probably stating the rule as it should be stated that the jury under such circumstances might, but need not, reject the whole testimony of the witness. We do not consider that the omission of this particular charge constitutes reversible error. The proposition embraced in the request is scarcely a rule of law, although its propriety has been affirmed in many cases. It is rather the statement of a rule by which the weight of evidence is to be tested — a rule derived from the experience of mankind both lay and legal. A jury, carefully selected for their intelligence and experience as this jury was, would undoubtedly apply this rule in considering how far a witness was to be believed, éven without a reference to the rule, by the court.

We are satisfied that the conviction was without legal' error and was justified by the evidencé. The judgment is, therefore, affirmed.

Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.