People v. Kathan

136 A.D. 303, 24 N.Y. Crim. 279, 120 N.Y.S. 1096, 1910 N.Y. App. Div. LEXIS 17

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1910
• Status: Published

Opinions

Woodward, J.:

On April 27, 1909, the defendant, a lawyer, was convicted upon an indictment under section 113 of the Penal Code (Penal Law, § 2440) charging him with giving a bribe' to a person about to be called as a witness, upon the understanding or agreement that the testimony of such person should thereby be influenced, and, in a separate count, with feloniously and ...fraudulently attempting^ to induce said witness to withhold true testimony.

The indictment was based on the following facts: One Louis Wolf was indicted for grand larceny by the grand jury of Kings county, and retained, the defendant to represent him in the matter as his attorney. The indictment against Wolf charged him with having taken the sum of fifty dollars from the pocket of one Frank Haibele. A few days before Wolf’s case was to be called for trial the defendant Kathan gave the sum .of seventy-five dollars to a man named Heene, with instructions to deliver the amount to Haibele. The validity of the judgment convicting Kathan of the crime charged rests entirely upon the. evidence of the purpose for which this money was paid.

It' appears that Kathan, through the agency of friends, brought about a meeting between Haibele and Heene, who had been selected to approach Haibele in regard to the Wolf case. The defendant’s testimony is that his sole object in doing this was to induce Haibele to accept restitution from Wolf, who would then throw himself upon the mercy of the court. The following transcript from the record is Heene’s story of what took place between himself, Kathan and Haibele in connection with the receipt and payment of the money by him:

“ The Witness; It was said, and I told him that I was asked and been told that he was robbed, and he explained that he was robbed. So I told him that I had been instructed if he would take the money back that was taken away from him if he would be satisfied. So I gave him my — I said, the way I was informed, there was a prominent business man from East Hew York. He.says, no, he could not do that, because he lost some time and some wages, so I says, ‘ I don’t know what the proposition is, but,’ I says, ‘ Let me know what you will take.’ By the Court: Q. Who said that?. A. I said so, your Honor. So he says he could not let us know, and I could not tell those people before the next day. By Mr. Elder: Q. How, do you recall anything else that was said in that conversation on Monday ? A. Hot there in. — Q. Well, if you do not remember anything more, what happened on the next day ? A. I told Mr. Kathan — I do not know if it was the same night— * * * Mr. Kathan and Glotthelf — that this man was willing to take the money which was stolen from him-and Twenty-five dollars for his loss in wages and expenses going through. So — Q. Did Kathan say anything? A. Kathan. said he is satisfied to do'this. Q. When you had this conversation with Kathan was anybody- present besides yon and Kathan? A. I don’t know exactly if Mr. Glotthelf was present' or not. Q. You don’t recall ? A. I don’t recall this. By the Court: Q. Wait a, minute. Kathan gave you what money? What did lie give you — how much money ? A. Seventy-five dollars, as far as I understand it. I did not. count the money. By Mr. Elder: Q. Don’t you know how much money he gave you ? A. I. did not count it. The way I got it I put it in a paper. By the Court: Q. What did he give you — a roll of hills or a bag of coin or what? A. A roll of bills, your Honor.. By Mr. Elder: Q. Well, what was said there about the way it should be given, if anything was said ? A. I should' give it to the man that nobody seen it, and tell the man when it comes up in the Court that he should not be so quite sure who was picking his pockets. - Mr. Kathan said that. I put the- money'in an envelope. Mr. Kathan did not tell me to put the money in an envelope. He paid me' the money on my head waiter’s desk. The money was paid me in the afternoon or around dinner. * * * By the Court: Q. Well, in these talks that you had with Kathan. did he mention the name of this prominent man in East Hew° York who was accused ? A. Yes, your Honor. Q. What was the name he told yon ? A. Wolf. Q. Did he tell you - what his first name was ? A. Yes. * * * After getting the money I went down to Broadway to meet this butcher. When I met him I says, 'I got the money from those people.’ He says, ‘ All right.’ * * * So we went up the elevated station, and handed him the money which I was given by Mr. Kathan, and the' next moment I was arrested. *' * * I guess I stated before that the witness Haibele should not — he asked me what to do in Court — what he should say. I says, ‘ don’t remember so quite sure for it who picked your pocket.’ ”

Haibele’s. testimony as to his arrangement with Heene is substantially the same, and he further testified that Heene said to him before the- money was paid, ‘“Well then,' * * * you know what you have got to say. You only say you ain’t sure any more.’ . * * * That I ain’t sure any more if that is Wolf who stole my pocketbook. * * *. ‘ Then it is all over, and you got your money.’ ” To this Haibele testified he replied, “ Well, Mr. Heene, I can’t do that. I was three times in the court. I only told the truth and I swore every time. How I- should say different I will swear false.” Haibele then- took the money, handed it over to a detective, who arrested Heene.

The testimony of Heene, quoted above, as to Kathan’s instructions when he gave him the money to pay Haibele is the only direct evidence in the casé upon that point. Kathan denies that he said anything of the kind to Heene. This raises the one vital point in the case. The corpus delicti, if a crime was committed, was not the paying of the money by Kathan, which is conceded, but the agreement or understanding under which it was given; the intent on the part of Kathan in making the payment through Heene to Haibele.

The section under which the defendant was convicted reads: “ A person who gives or offers or promises to give, to any witness or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony.” The words “upon any understanding or agreement” and “attempts * * * fraudulently to induce ” are tantamount to “ with the intent.”

While criminal intent will be presumed from the commission of an'act in its nature unlawful, the act itself being evidence'of the intent, it is also true that where an act becomes criminal only through the existence of a specific intent such intent must be proved. (Stokes v. People of the State of N. Y., 53 N. Y. 179 ; Miller v. People, 5 Barb. 203; Lawson Presump. Ev. 473.)

If a crime was committed by the defendant, Heene was an accomplice ; and it is provided by section 399 of the Code of Criminal Procedure that “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

In People v. Plath (100 N. Y. 590), in reversing a judgment of conviction of the crime of abduction, the court said in regard to the kind and degree of corroboration required by section 283 of the Penal Code (Penal Law, § 71) : “ In case's where corroboration is required there has been some diversity of opinion iri the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to comply with the rule; but it is now conceded' to be the general rule that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices it was the usual practice of trial'courts to advise an acquittal, unless such evidence was in some respects corroborated by other testimony (although at common law a conviction upon the evidence of the accomplice alone was sustainable). In those cases the extent and degree of corroboration rested in the.discretion of the trials court, and necessarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Roscoe’s Criminal Evidence, 122

*, as follows: ‘ That there should be some fact-deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference not only that a crime has been' committed, but that the prisoner is implicated in it.’ Russell on Crimes, 962,† says: ‘ That it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.’’ 1 Greenleaf on Evidence, § 381,‡ lays down the rule as held by some, that it. is ‘ essential that there should be corroborating proof that the prisoner actually participated in the offense.’ ”

In People v. Courtney (28 Hun, 593) a judgment of conviction for forgery was reversed. The main witness for the prosecution was an accomplice, and it was urged on behalf of the defendant that there was no corroboration of his evidence such as is contemplated by section 399 of the Code of Criminal Procedure. It was said by Hr. Justice Brady : “ The language of the statute, as we have seen, is that the accomplice must be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. The existence of intimate relations is not a circumstance from which participation in the guilty acts of an associate is. to be presumed because it is consistent with innocence. The association may be continued, and may be marked by all the circumstances which characterize the association of the accomplice and the appellant herein, and yet be an innocent one. In other words, the appellant might not have been advised in any way of the intended crime by the accomplice. It is not in the language of the section, such other evidence as tends to connect the appellant with the commission of the crime. And this view of such a relation presents itself with peculiar force when the associate upon his trial for an offense charged against him, the proof of which rests chieffy upon the testimony of the accomplice, solemnly denies all participation in the crime charged.”

The district attorney finds sufficient corroboration of Heene’s testimony as to Kathan’s instructions to him, that is, as to Kathan’s intent,. (1) in a bare recital of the admitted facts of the case; (2) in Kathan’s apparent interest in Heene when he was arrested on a charge of bribery growing out of the same facts, and his exclamation to Heene’s counsel, Heyser, “ My God, I am in it, Heyser,” and (3) in Kathan’s anxiety over a report that Heene was going .to turn State’s evidence. We are unable to concur in this view.

The admitted facts do not tend to prove that Kathan caused the money to be paid to Iiaibele for the purpose of bribing him ; Heene’s testimony stands alone on that point, and is denied by Kathan. , When Kathan heard of Heene’s arrest for handing the money to Haibele he had reason, as the event proved, to show a lively interest in the situation, even though innocent; and his exclamation, “ My God, I am in it, Heyser,” appears in the testimony of the witness Heyser as follows : “ I told Kathan, when he told me what had happened, that I thought that he was in it, too. By the Court: Q. What did he tell you ? A. Why, he told me that they had sent Mr. Heene to — I did not know at that time who the man was or what his name was — to somebody to give him some money in the Wolf case. Q. Did he say what it was for? A. Ho, he did not say what it was for.. By Mr. Elder: Q. Well, what else did he say, if you recall ? A. He said, ■' My God, I am in it, Heyser.’ I think Mr. Kathan said this; either Mr.. Kathan or Gottlielf. They were all in the room together. I believe it was Mr. Kathan that said that.”

Whether there is any evidence of corroboration is a question of law for the court. (People v. Farina, 134 App. Div. 110), and we feel constrained to hold that there was none in this case going to the essential element of the crime charged.

The record discloses a number of instances where conversations had between divers individuals in the absence of the defendant were admitted in evidence over the objection and exception of the defendant’s .counsel. The district attorney seeks to justify these rulings on the ground that the conversations were in furtherance of a conspiracy to bribe Haibele, and cites People v. Miles (123 App. Div. 862) in support of his contention. That case was a prosecution for' conspiracy, and the defendant’s coconspirators were all directly interested in the plan to defraud the city. In this case the only persons directly interested in the'giving of the money which constituted the alleged crime were the defendant and his client, Wolf. The others were merely their agents. The evidence of these conversations must necessarily have tended to impress the minds of the jurors that the defendant was one of an organized gang banded together to commit a crime, and so was prejudicial. Its admission was error. (See Coleman v. People of the State of New York, 58 N. Y. 555, 561.)

From all the evidence it seems quite probable that the only motive of the defendant in causing the money to be paid to Haibele was that of restitution. The extra twenty-five dollars was paid at Haibele’s own suggestion; he said he had lost five days’ time in the matter, and that he should be compensated for that in addition to the return of the money taken from him. If bribery had been intended by the defendant, it is reasonable to assume he would have offered an amount sufficient to afford a substantial inducement for Haibele to commit perjury. And there was nothing furtive in the actions of the defendant; he took several persons into his confidence. He was a lawyer, and may be presumed' to have known the penalty of the crime, of bribery. Some degree of secretiveness would have been his first aim if he had had a criminal intent.

If it be contended that anything occurred in the conduct of the trial tending to prejudice the rights of the defendant, which cannot be reviewed on this appeal because of the want of specific objection and exception, the answer is that the. exception to the ruling of the court denying the defendant’s motion to dismiss the indictment, made at the close of the whole case, was sufficient to raise all these questions. This appears in the record as follows : “ Mr. Baldwin I move upon the record that your Honor dismiss this indictment upon the ground that there has been a failure here to prove the case ; that with relation to the proof offered by alleged accomplices in this alleged crime there has not been any sufficient corroboration ; that thej*e has been a failure on the whole case, and that the case should not be submitted to a .jury. Motion denied. . Defendant excepts.”

But no exception was necessary. In cases of this kind the Appellate Division has broader powers of review than the Court of Appeals. Certain powers can be exercised bythe Court of Appeals only when the judgment is of death. Ho such limitation is placed upon the Appellate Division. (Code Crim. Proc. §§ 527,528.) This distinction is thus pointed out by Judge Cullen in People v. Sherlock (166 N. Y. 180, 183) : “ By section 527 of the Code of Criminal Procedure the Appellate Division is authorized to grant a new trial in a criminal case when satisfied that the verdict against the prisoner is against the weight of evidence, against the law, or that justice requires it, whether exceptions have been taken in the court below or not. But by section 528, which regulates appeals to this court, the broad power given to the Appellate Division of the Supreme Court is bestowed upon us only where the judgment is of death. In other cases we can take notice only of- legal errors appearing in the record or raised by exception on the trial. (People v. Driscoll, 107 N. Y. 414; People v. Lyons, 110 N. Y. 618; People v. Leonardi, 143 N. Y. 360.) ”

This trial was in the Supreme Court. That court consists of all its justices, and the Appellate Division is the constituted quorum of that court, designated to determine whether trials have been according to the judgment of the court, as distinguished from the judgment of the individual member who happens to preside at the particular trial.

The judgment should be reversed and a new trial granted.

Jenks and Rich, JJ., concurred; Thomas, J., concurred in result in a separate opinion, .in which Woodward, Jenks and Rich, JJ:, concurred save as to the sufficiency of the corroborative évidence; Burr, J., read for affirmance.

See 11th ed. p. 124.— [Rep.

See vol. 2, 5th Am. ed.— [Rep.

See 2d ed.— [Rep.