People v. Arsdale , 264 A.D. 300 ( 1942 )

Per Curiam.

(1) To sustain this conviction, as was said by Cardozo, J., “ Enough must be shown to justify the inference that the offender has counseled or induced or encouraged the crime * * *.” (People v. Swanky, 216 N. Y. 471, 476.)

The proof is overwhelming that riots of a most violent character were in progress between August 1, 1940, and September 24, 1940, particularly on September 24, 1940, at and adjacent to the plant involved in the strike. The proof which the jury was free to credit amply sustained the finding or inference that the defendant “ counseled or induced or encouraged the crime.” His utterances prior to the beginning of the strike evinced a purpose personally to engage in unlawful acts or to encourage others to do so. Only such conduct would result in a situation where defendant would “ sit in jail and rot ” to win the strike. A peacefully or lawfully conducted strike would not expose the defendant to any such hazard. The riot that ensued shortly after the defendant talked to the strikers about six a. m. on September 24, 1940, included riotous and lawless acts of violence which need not be detailed. The evidence warranted the jury in finding that the defendant was present just before and at the time of tins rioting, that he encouraged it, and by his conduct approved it except in the instance when he brought about a partial cessation of it in connection with the violence exerted on a private person and an automobile in which the latter was riding. The evidence established that he was in absolute control of the conduct of the strike and of the actions indulged in to forward it. Evidence of other facts and circumstances reinforced the conclusion that the defendant “ induced or encouraged the crime ” of riot in progress on September 24, 1940.

In arriving at its conclusion, the jury was free to draw from items of direct proof natural, independent, paralleling inferences of fact — which were not superimposed. It must be presumed that the jury did this, and it may not be presumed on a basis of artificial, synthetic speculation that the jury indulged in a supposititious coursé of drawing inferences from inferences when recourse thereto was not indispensable to arriving at its conclusions.

The jury was free to find the defendant guilty on the proof herein whether he was present or absent during the rioting. (Penal Law, § 2, “ Principal.”)

(2) Exhibit 23 was properly received in evidence. Defendant’s counsel did not pursue the practice, with respect to such a paper in the hands of the district attorney, outlined in People v. Walsh (262 N. Y. 140, 149). In connection with this paper he flatly charged that the witness under examination was “ coached.” After thus impugning the integrity of the witness, and with the paper in his hand, he asked repeatedly whether the witness had been interrogated in question and answer form, although the paper disclosed that the witness had signed an affidavit in narrative form. If the paper contained leading questions and answers wherein the questioner’s desired version was projected into the mind of the witness, the form of the paper would sustain the charge that the witness was “ coached.” If the paper contained a series of questions and answers which revealed a moulding of the views of the witness to the views or version desired by the questioner, such a course of the questioning would sustain the view that the witness was “ coached.” The form of the paper, however, disclosed that neither of these conditions existed, and, therefore, repelled the charge that the witness was “ coached.” Certain questions insinuated that what happened while the witness was being questioned by the district attorney was not reflected in the paper; others charged or insinuated that the witness had been influenced or corrupted by named individuals. All these things constituted further attacks upon the integrity of the witness in relation to the paper. This conduct of defendant’s counsel made the exhibit admissible in evidence because the charges and the manner of interrogation of the witness made applicable the exception to the general rule in respect of a prior consistent statement which permits its receipt in evidence “ when the witness rests under the imputation of a recently formed motive to falsify,” as well as on the theory that “ it tends to support the integrity of the witness, no less than the accuracy of his recollection; ” or where the witness rests, as in the case at bar, under the charge that he has been suborned or “ has recently fabricated his testimony to meet the exigencies of the case.” (People v. Katz, 209 N. Y. 311, 339, 340.) i In any event, in view of the volume of proof in the case and the short lapse of time between the signing of the paper and the giving of testimony, the admission of the paper under the circumstances, even if it were not strictly proper, involved no prejudicial error.

The judgment of conviction should be affirmed.

, The appeals from the order overruling demurrer, from the order denying the defendant’s motion for a bill of particulars, and from the order denying defendant’s motion to set aside the judgment of conviction and for a new trial on the ground of newly-discovered evidence should be dismissed as not appealable.

( Carswell, Adel and Taylor, JJ., concur; Lazansky, P. J., and Close, J., concur for dismissal of the appeals from orders, but dissent from affirmance of the judgment of conviction and vote to reverse the judgment and to order a new trial, with separate ■ opinions.