People v. Silverman , 253 A.D. 683 ( 1938 )

Callahan, J.

The appellants were charged with having conspired with each other, with Max Silverman (not apprehended) and with one Alex Bubinstein, to prevent others from exercising a lawful trade, and to commit acts injurious to trade and commerce. (Penal Law, § 580.)

An association, known as “ United Cake, Pastry and Pie Bakers Association, Inc.,” was incorporated in the late months of 1934, by a number of men engaged in the baking business. The object of United Cake, Pastry and Pie Bakers Association, Inc., was to cause manufacturers engaged in the cake and pastry baking business to become members of the association, to control the fixation of prices, and to maintain rules for the operation of the business of its members.

It was charged, in substance, and amply established, that unlawful means were pursued to carry out the objects of this association, in that intimidation, by way of calling strikes, and violence, through the destruction of property, were resorted to.

Bubinstein was the one who conceived the idea of forming the association. There had been other similar organizations in the past, but they had not proved successful. The manufacturers were told that “ this association would be more effective, because it would have teeth in it.” Beference was made to the fact that Max Silverman, who termed himself a “ labor adjuster,” was to lend his services to the United. Silverman’s reputation for ability to control labor unions was called to the attention of the proposed members.

The defendant Spevack was an attorney recommended by Max Silverman. He incorporated United and continued to be active in the conduct of its affairs. He was familiar with the unlawful means resorted to in effecting its purposes.

The defendant Harold Silverman, a son of Max Silverman, was employed in carrying out the work of the association.

Defendants William Goldis and Samuel Schorr were officers of Local 138 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers. The drivers of bakery wagons and routes were employees who came within the purview of this union.

There was another defendant, Nathan Ehrlich, who was the business manager of the Joint Auxiliaries of Locals 505, 507 and 509 of the Bakery and Confectionery Workers International Union of America (inside bakers). He was tried and acquitted.

The charge, in substance, against the defendants who were union officials was that, through the intervention of Max Silverman, they lent themselves to the conspiracy by calling strikes to enforce the demands of the association rather than for legal labor purposes. While the evidence against Goldis and Schorr was largely given by the accomplice Rubinstein, we find that Rubinstein’s testimony was corroborated sufficiently to justify their conviction.

In. addition to discussing the questions of the weight and sufficiency of the evidence, the appellants claim that numerous errors were committed upon the trial. We have carefully examined all of these claims. Though we find no reversible error, we deem it appropriate to discuss several of the points raised.

The appellants contend that the crime charged was barred by the Statute of Limitations. The information upon which they were tried was filed April 19, 1937. There appears to be no evidence of the commission of any overt acts in furtherance of the conspiracy after April 15, 1935. The crime charged being a misdemeanor, the two-year Statute of Limitations would have barred the prosecution (Code Grim. Proc. § 142), unless the statute was rendered inapplicable by the fact that the information on which the appellants were tried was a superseding information. There had been a prior information filed on January 18, 1937, within the two-year period. A prosecution is deemed to have been commenced when the first information is filed, where a second superseding information is resorted to. (Code Grim. Proc. §§ 144, 292-a, 742.)

Section 292-a provides: “ If there be at any time pending against the same defendant, two indictments for the same offense; or two indictments for the same matter, although charged as different offenses, the indictment first found, shall be deemed to be superseded by such second indictment, and shall be set aside. (Added by L. 1909, chap. 66.) ”

It is conceded that this provision applies to informations in the Court of Special Sessions of the City of New York.

Both the first and second informations filed herein were on the calendar until the conclusion of the trial. The defendants moved to dismiss the first. The trial court, instead of granting the motion, merely discharged bail thereon, though earlier in the trial the district attorney had taken the position that he deemed the second a superseding information. The failure to dismiss the first information, though erroneous, would not be determinative of the questions as to whether the second information superseded the first. This depended, under the statute, on whether the second information was for the same offense, or for the same matter as the first. A comparison of the two informations discloses that, in the first, the defendants named were Max Silverman, Benjamin N. Spevack, Harold Silverman, David Elfenbein, William Goldis and Samuel Schorr. In the second, the defendant Elfenbein’s name was dropped and a new defendant, Nathan Ehrlich, was added. The first information charged a conspiracy formed on November 21,1934. The second charged a conspiracy continuing from November, 1934, to August, 1935.

The overt acts charged in the first information are included in the second, with but slight variations. Additional overt acts were set forth in the second information.

Summarizing the two informations, we find that the second was broader than the first, in that the first was based on a conspiracy to put a single concern, known as Mur-Ray Pastry Company, out of business, whereas the second charged a conspiracy to put all non-co-operating bakers, including Mur-Ray, out of business. The inclusion in the second information of the additional defendant Erhlich (who was acquitted) did not necessarily mean that a different conspiracy was intended to be charged against appellants who were parties to both informations. The pleadings show that both charges referred to the same matter, in that everything set forth in the first charge was included in the second. The second information must be deemed to have superseded the first within the meaning of the statute.

The failure of the trial court to dismiss the first information would appear to be a mere irregularity under the circumstances. There has been no attempt to conduct any further prosecution under the first information, and it may still be dismissed.

The appellants also assert the trial court erred in finding defendants Harold Silverman, Schorr and Goldis guilty before hearing the testimony of defendant Spevack. Spevack was the only defendant who took the stand or offered testimony. The other defendants, including Ehrlich, rested on the People’s case. The trial court denied the motions of all defendants, except Ehrlich, to dismiss the information at the end of the People’s case. As to Ehrlich, the court reserved decision at that time, but acquitted him later. Goldis and Schorr asked for leave to withdraw from the case during the presentation of Spevack’s defense. They plainly indicated that they did not desire to take part in the examination of Spevack’s witnesses, or be bound by their testimony. Harold Silverman did not make any specific motion to withdraw* but like Goldis and Schorr, he rested before Spevack’s testimony was received, knowing that Spevack was to call witnesses. The court thereupon found the defendants Harold Silverman, Schorr and Goldis guilty before the receipt of Spevack’s testimony. None of the defendants objected to this procedure on the ground that the disposition of the case as to them was premature. The question is whether there was any prejudicial error committed as to any of the appellants by the procedure adopted. We think not. Obviously the appellants acquiesced in what was done. They may not now assert that they were harmed by the procedure followed, especially since it appears that no injustice occurred. The court evidently did not credit Spevack’s testimony in his own behalf. He offered very little evidence that referred to the other appellants, and what was received relating to them would not appear to warrant any change in the verdict as to their guilt. By this ruling we do not wish to indicate approval generally of the procedure followed on the trial. We merely hold that it did not constitute reversible error, in view of the positions taken by the defendants.

The trial of this action took place prior to the amendment to section 211 of the Civil Practice Act, effective September 1, 1937. At the time of the trial it was permissible in a civil action for one defendant to withdraw during the presentation of testimony by codefendants, and thus avoid having such testimony considered as against the withdrawing defendant. (See Bopp v. N. Y. Electric Vehicle Transportation Co., 177 N. Y. 33; Thomas v. Nassau Electric R. R. Co., 185 App. Div. 326; Notter v. Union R. Co. of New York City, 247 id. 140.)

We need not decide whether that rule applicable to civil actions applied to the trial of the present criminal case. (See Code Grim. Proc. § 392.) Assuming that it did apply, it would in nowise affect the questions raised by these appellants. Only Ehrlich, who was acquitted, was refused the right to withdraw. The appellants Harold Silverman, Goldis and Schorr were, in effect, treated as if the rule did apply to them, in that their guilt was determined before the receipt of the testimony offered by Spevack. Clearly there was no error as to said appellants by the procedure adopted.

As to Spevack, a different question is raised with respect to the correctness of the procedure followed by the trial court. He contends that there were two essential elements in the crime charged against him, i. e., (1) the existence of a conspiracy, and (2) his connection with that conspiracy. Accordingly he asserts that the court prejudged the first of these elements by convicting the codefendants before Spevack’s defense was heard. It seems to us, however, that the effect of the determination of the issues as to the other appellants before Spevack’s testimony was received, did not prejudge Spevack’s defense. It amounted merely to a finding that a conspiracy existed as to which the three defendants who rested were particeps criminis. By denying Spevack’s motion to dismiss the information, the court further indicated that, prima facie, Spevack was connected with this conspiracy charged. This did not prejudice Spevack’s case. The question of his guilt was left open, not only as to his connection with the conspiracy, but as to the actual existence of a conspiracy.

If the testimony introduced by Spevack had created a reasonable doubt as to whether any conspiracy existed, it became the duty of the trial court to acquit him, though some inconsistency in the court’s findings might result. We cannot assume that the adjudication of the codefendants’ guilt influenced the court in considering the weight to be given to Spevack’s defense. His guilt was fully established on the whole case, and we see no reason for disturbing the finding of the trial court in respect thereto.

The appellants further assert an alleged error of the trial court in refusing to hold that certain witnesses were accomplices as a matter of law. Though the trial was proceeding before three judges sitting as triers of the facts, as well as judges of the law, the defendants moved at the close of the People’s case for a ruling by the court that certain of the People’s witnesses were accomplices as a matter of law. The court refused to so rule, except that it did find that Rubinstein was an accomplice.

Assuming, without determining, that some of the witnesses who had admitted contributing money to carry out the unlawful purpose of the conspiracy were accomplices as a matter of law, we see no necessity for a court, constituted as the Court of Special Sessions, expressing its opinion on the legal question presented by the motion referred to. We must assume that the judges properly applied the law relating to the weight to be given to the testimony of the various witnesses.

In addition to the foregoing, appellants make several claims of error in connection with the admission of evidence. We have carefully considered all of these claims, but find no error requiring reversal. It does appear that the court improperly received evidence from a witness, Hartman, who was permitted to testify as to a telephone conversation with “ one of the Schorrs,” meaning either the defendant Samuel Schorr, or his brother Max, who was not a defendant. However, in view of the weight of the competent evidence establishing Samuel Schorr’s guilt, this single instance of error in a long and difficult trial should be disregarded, in accordance with the mandate of section 542 of the Code of Criminal Procedure.

The judgment should in all respects be affirmed.

Martin, P. J., Townley and Cohn, JJ., concur; Dore, J., dissents and votes to reverse and grant a new trial as to the defendants Goldis and Schorr.