People v. Anhut , 162 A.D. 517 ( 1914 )

Hotchkiss, J.:

Briefly, the facts are as follows:

One Thaw having been indicted for murder and acquitted as insane, was committed to and at the time of the occurrences in question was confined in the Matteawan State Hospital, of which one Russell was medical superintendent, and as such was invested with power, subject to certain limitations, to discharge Thaw. On or about November 2, 1912, Thaw agreed to pay defendant $25,000, provided he was discharged before January 1, 1913, but if discharged thereafter and before July 1, 1913, Thaw was to pay only $12,500, and if discharged after July first, he was to pay nothing. Subsequently Thaw caused to be delivered to defendant $5,000 in cash and shares of a well-knoWn investment stock valued at $20,000, and defendant gave to Thaw his two several receipts for $12,500, each dated November 20, 1912. Thaw was never discharged and, concededly, the defendant returned to him $12,500 or the equivalent thereof on or about January 1,1913—the defendant’s trial and conviction having occurred prior to July 1,1913, the record does not show whether the remaining $12,500 was or was not returned. The People’s version of the transaction was that .the money and shares delivered by Thaw to defendant were so delivered in pursuance of a corrupt bargain made by him with Russell, who, in consideration of all or a portion of the bribe, was to discharge Thaw from custody, and that the defendant was the conduit through which it was arranged that- Russell’s share was to be paid. The defendant’s explanation of the transaction was that the moneys and shares were received by him in advance as a fee for his services in proceedings which Thaw retained him to institute for his discharge. Although counsel for the defendant contends that the evidence adduced by the People was not sufficient to justify a verdict of guilty, I am satisfied that on the merits the verdict was right. The principal ground urged for reversal is that the defendant was entitled to immunity for the crime of which he was convicted.

It appeared that prior to defendant’s indictment the Governor, under section 8 of the Executive Law (Consol. Laws, chap. 18; Laws of 1909, chap. 23), had appointed a committee to investigate certain State departments, including the State hospitals for the insane, and that this investigation included an examination into the truth of certain rumors concerning the existence of a conspiracy to release Thaw by bribery. Russell testified as a witness before the committee and swore that the defendant had sought to bribe him. By direction of the committee, subpoenas were issued to secure defendant’s attendance before it as a witness. The defendant having learned that subpoenas had been so issued, caused his counsel to appear before the committee, and it was arranged that defendant should appear and he sworn without being subpoenaed. In pursuance of this arrangement defendant subsequently appeared and testified under oath.

When arraigned on the indictment in question, defendant attempted to file a special plea in which he claimed immunity on the ground that he had been compelled to testify before the committee as to the subject-matter of the indictment. The court refused to accept the plea and directed that a plea of not guilty be entered, whereupon the defendant moved to quash the indictment on the same ground as that on which his special plea was based, which motion was denied. The defendant also unsuccessfully moved to have his aforesaid special plea substituted for the plea of not guilty and by various other motions the defendant unsuccessfully sought to avail himself of his alleged immunity. The court based its rulings adverse to the defendant on the ground that the question of immunity was one to be raised and presented at the trial.

Although the learned district attorney does not concede that defendant was not an involuntary witness before the commit tee, I think it clear that he was. The power of the Governor to appoint a committee and the authority of the latter to issue subpoenas and compel the attendance of witnesses is not denied; the circumstances, therefore, under which defendant gave his testimony show that it was not voluntarily given. (People v. Sharp, 107 N. Y. 427, 445; United States v. Armour & Co., 142 Fed. Rep. 808, 822, 823.) But this question is not material.

For reasons, to which I shortly refer, defendant does not assert any claim to immunity under article 13, section 3, of the Constitution; he rests his case on section 381 of the Penal Law (formerly Penal Code, § 79), which reads as follows:

“ § 381. Offender a competent witness. A person offending against any provision of any section of this chapter relating to bribery and corruption, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution. ”

It will be seen that the 2d paragraph of the section provides that “testimony so given shall not be used in any prosecution,” and that the last paragraph provides for immunity to one who may testify “ to the giving of a bribe which has been accepted.” The distinction between the right to complete immunity to one who has testified, and a provision, whether constitutional or statutory,that testimony “shall not be used” against the witness in any subsequent prosecution, is plain and has been judicially determined. (State v. Lloyd, 152 Wis. 24; Commonwealth v. Cameron, 229 Penn. St. 592, 597.) It is obvious, therefore, that the action of the court in denying defendant’s motions, to which I have referred, and holding that the question of immunity was one to be raised by objections to evidence offered on the trial, was proper, unless defendant w;as protected by the last paragraph of section 381 of the Penal Law. (People v. Cummins, 153 App. Div. 93, 112, 113; affd., 209 N. Y. 283.) That he was not so protected is patent, because • it is undisputed that he did not testify before the committee “to the giving of a bribe which has been accepted. ” On the contrary, it is conceded that he denied that he had directly or indirectly been in any way connected with any bribery or any attempt to bribe Bussell.

The question still remains whether on the trial the People made improper use of the testimony given by the defendant before the committee. The defendant’s position as stated in the brief of his counsel is, “that his constitutional rights were invaded by his being compelled to be a witness against himself, in the sense of his evidence having been used to work up the case against him,” and that under the theory of the Lewisohn case (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253) he had been compelled to disclose to the committee circumstances that enabled the People to complete the subsequent criminal case against him; in short, that he had been compelled by that testimony to supply “ the missing links in the facts from which the district attorney later drew the inference of guilt.” How this testimony was used against him on the trial, according to counsel, is that the court in charging the jury said that, as the testimony of Thaw was that of an accomplice, it could not alone be the basis of a conviction, but that the court left it to the jury to say “whether or not the defendant’s testimony * * * and the receipts which the defendant gave to Thaw for the money, furnish corroboration of the testimony of Thaw.” From this counsel argues that inasmuch as the defendant had given before the investigating committee the same testimony concerning his conversations with Thaw, the receipts, etc., as he gave when sworn as a witness in his own behalf on the trial, he had by his testimony before the committee informed the district attorney as to “just what he might count upon to put into the case to strengthen it through the cross-examination of the defendant himself,” and thus had indirectly, but effectively, been compelled to testify against himself. The district attorney takes issue with this statement and asserts that in no way either before the grand jury or on the trial was there any use made of any of defendant’s testimony before the committee, and that the People’s case was wholly proved by Thaw and the other witnesses. Undoubtedly the burden is on the defendant to show that whatever incriminating facts or circumstances he claims were extorted from him on his examination before the committee and were used against him on the trial, were so extorted and discovered and were not made known through other witnesses, facts or circumstances. (See State v. Lloyd, supra.) In this, a careful examination of the record compels the conclusion that he utterly failed. It would seem to me, however, a sufficient answer to defendant’s argument, that no point such as is now urged was made on the trial, after the taking of testimony began, and that the record discloses, neither by way of objection, exception or otherwise, any suggestion to that effect. The appellant took the stand in his own behalf and was examined and cross-examined, and neither upon such examination nor upon the examination of any other witness or the offer of any exhibit was it argued or objected that the defendant’s testimony before the committee was being used against him. It is plain that the objection was one which could be waived, and should be held to have been waived if the entire record fails to disclose anything to show that it was asserted.

The defendant’s exceptions to the admission and exclusion of evidence show no error and are not of sufficient importance to require discussion.

The judgment should be affirmed.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.