People v. . Sharp

14 N.E. 319, 107 N.Y. 427, 5 N.Y. Crim. 569, 12 N.Y. St. Rep. 217, 62 Sickels 427, 1887 N.Y. LEXIS 1027

• Court: New York Court of Appeals
• Decided: November 29, 1887
• Status: Published

Opinions

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The indictment was found October 19, 1886. In substance it accuses Jacob Sharp and six other persons of giving and offering and causing to be given and offered to one Fullgraff, a member of the common council of the city of New York, $20,000, with intent to influence him in respect to the exercise of his powers and functions as such member of the common council, upon the application of the Broadway Surface Railway Company for the consent of the common council to the construction of a street railway. Sharp was tried separately. Direct evidence was given from which a jury might find that Fullgraff had in fact been bribed, and other evidence altogether of a circumstantial character and by no means conclusive, but sufficient, as the jury have said by their verdict, to warrant a finding that Sharp was concerned in the commission of the crime, and therefore guilty of the offense charged. Exceptions were taken in behalf of the defendant to several decisions of the trial court in admitting against his objection certain items of testimony, which it is conceded were material, and without which it is claimed by the appellant a conviction could not or might not have been obtained.First. Among others the counsel for the prosecution proved that the defendant was examined as a witness before a committee of the senate of this State, appointed to investigate among other things, the methods of the Broadway Railway Company in obtaining such consent, and also the action in respect thereto of the board of aldermen of said city, which granted, or of any member thereof who voted for, the same, and that he upon that occasion gave testimony which the learned counsel for the prosecution claimed to be "irrefutable evidence of his participation and complicity in the commission of the crime." This testimony the prosecutor offered in evidence. It was conceded by the prosecution that at the time he testified the defendant was before that committee under the operation and compulsion of a subpoena duly issued by the committee, and that the testimony he gave was in response to questions propounded in their behalf. Its admission on the trial was objected to on the ground that it was given under privileged circumstances; that the defendant was compelled to attend and testify, and that evidence thus elicited was not competent "upon the trial of a person where the subject under inquiry is that about which he was then interrogated."

The question before the jury was whether the defendant had committed the crime of bribery as alleged in the indictment, and as that offense is declared by section 78 of the Penal Code, under which the indictment was found. This section forms part of title 8 which relates to crimes against public justice, and of chapter 1 of that title concerning bribery and corruption. It is preceded by other provisions concerning bribery as (§ 44) of an executive officer (§ 66) of members of the legislature (§ 71), of a judicial officer (§ 72), of such an officer accepting a bribe (§ 74), of a juror, and embracing all these as well as the provisions of section 78, section 79 declares that (1) a person offending against any provision of any foregoing section of this Code relating to bribery 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. (2.) "But," it declares, "the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying." (3.) 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." By a subsequent section (§ 712 of the Penal Code) these provisions are so modified as not to permit such evidence being proved against the witness upon any charge of perjury committed on such examination.

The first question upon this appeal is as to the meaning and spirit of the statute contained in this section. (§ 79.) The appellant contends that by it the disclosures made by him before the senate committee were privileged and could not be used against him on the trial now under review, and one of the learned counsel for the People concedes that this force might be attributed to the statute if it were wholly a valid enactment (as he contends it was not), and if the evidence given before the committee had not been entirely free and voluntarily (as he contends it was). These propositions lie at the bottom of the controversy.

1st. Is the enactment valid? The learned counsel for the People contrast the constitutional provision, "that no person shall be compelled in any criminal case to be a witness against himself" (art. 1, § 6), with the compulsory words of section 79 already quoted, and pronounce one to be "the direct opposite of the other," and as we understand the argument, it is that the constitutional exemption is absolute and complete, permitting the witness to lock up the secret in his own heart, and does not permit the evidence to be taken from him at all; that this right is infringed by the provisions of section 79, and that it is therefore invalid. It is I think an answer to this proposition that the same section declares not only that the testimony given by the witness shall not be used in any prosecution or proceeding, criminal or civil, against him, but that the very fact of so testifying may be pleaded in bar of an indictment or prosecution for the giving of a bribe which has been accepted. It should be borne in mind that the sole object of the introduction of the defendant's testimony was to prove from it that he was guilty of giving the bribe, which, as the evidence tended to show, Fullgraff accepted, and the giving of which was the sole accusation against the defendant. If then the case is within the terms of the section, as upon this point it is assumed to be, the immunity offered by it distinguishes the statutory provision from the constitutional inhibition, inasmuch as it indemnifies or protects the witness against the consequences of his testimony. To that effect is the decision of the Court of Appeals in the case of People ex rel Hackley v. Kelly (24 N.Y. 74). The court there had under review an order adjudging the relator Hackley guilty of contempt in refusing to answer before the grand jury questions quite similar in substance to those propounded to Sharp by the senate committee. The complaint under examination was against certain aldermen and members of the common council of the city of New York, for receiving a gift of money under the agreement that their votes should be influenced thereby in a matter pending before them in their official capacity, and Hackley as a witness was asked as to the disposition made by him of a certain pile of bills received from one H., and said to amount to $50,000. Hackley asserted his privilege at common law and under the constitution, and demurred to the question. The Court of Sessions adjudged him guilty of contempt for refusing to answer, and ordered him to be imprisoned. The Supreme Court affirmed the order, and the Court of Appeals affirmed the decision. The principal question discussed by this court was whether the relator could lawfully refuse to answer the interrogatory, and in reaching its conclusion the court examined the provisions of chapter 539, of the Laws of 1853, entitled "An act to amend the existing law relating to bribery," and also chapter 446 of the Laws of 1857, amending the charter of the city of New York. Both acts relate to bribery. We shall again refer to them and it is sufficient in this connection to say that each act contains provisions compelling the attendance and testimony of witnesses, but provides full protection against the use of their testimony in any proceeding, civil or criminal, against the person so testifying. The object of these provisions was said to be to enable the public to avail itself of the testimony of a participator in the offense and to enable either party concerned in its commission to be examined as a witness by the grand jury or public officer entrusted with the prosecution, and the court held that the relator was not privileged by the Constitution, inasmuch as he was protected by the statute against the use of such testimony on his own trial.

The learned counsel for the People also argues that the statutory protection afforded by section 79, does not go far enough; that the indemnity it offers to the accused witness is partial and not complete; that while it may save him from the penitentiary by excluding his evidence, it does not prevent the infamy and disgrace of its exposure. This argument is also met by the opinion in the Hackley Case (supra). It was there argued for the relator that he was not wholly protected; that his testimony might disclose facts and circumstances which, being thus ascertained, might be proved against him by other testimony than his sworn evidence. But the answer of the court covered not only that supposed case, but the objection that the disgrace of exposure would still remain, although the evidence was not used. "That," said the court, "is the misfortune of his condition, and not any want of humanity in the law." "If a witness," said Judge DENIO (24 N.Y. 83), "object to a question on the ground that an answer would criminate himself, he must allege in substance that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense," adding, "if the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged." The conclusion of the court was that the relator was not exempt from testifying, and it follows from the decision then rendered that the provision of the Code which embodies the same conditions as those then under consideration, is in no sense repugnant to the Constitution.

2d. Was the testimony of Sharp given of his own will, or by compulsion? He would, as the prosecution concedes, have testified against himself if as a witness on his trial he had sworn as he did before the committee; but he was not sworn upon his trial and this fact they say left him to the operation of the common law rule, when his admissions made elsewhere and in another place where sought to be proved by other witnesses. To reach this conclusion it is argued with great earnestness by one of the learned counsel for the People, "that the resolution of the senate and the inquisition of the committee were illegal and void proceedings, having no significance or force in the judgment of the law." "To say," continues the counsel, "that Mr. Sharp was a witness implies a court or magistrate authorized to administer the oath and take the evidence," and his claim is that Sharp was "under no compulsion of law to be present at this inquisition, to take an oath, or to testify." In the view of the learned counsel for the prosecution and as characterized by him, "the sittings of the committee were merely meetings of private persons, among whom was Mr. Sharp." "There were," he says "conversational questions and answers in which he (Sharp) took a part by answering interrogations addressed to him," and the contention of the learned counsel follows, "that Sharp's statements on that occasion may be used in any proceeding to which he is a party." If the premises were true, this construction might in ordinary cases follow. But if they are correct, the courts below seem to have misconceived the situation in which Sharp was placed, for we cannot find in the voluminous record before us any suggestion that the senate had not full power to take cognizance of, and to inquire through its committee into the alleged abuses of public power and the corruption of public officers, nor that such proceedings in the present case, having in view the possible necessity of an alteration in the existing law, were not in every respect valid and legal. Nor are we left to this negative evidence that such question was not raised upon the trial. It appears by the concession there made and already quoted, that upon objection being made to the introduction of Sharp's testimony, on the ground that his statements before the committee were privileged, made under compulsion of a subpœna and the constraint of an oath duly administered by the committee, who confined his evidence to such questions as the committee chose to ask, the prosecution not only made the admission already set out, but also required the resolution under which the committee assumed to act to be put in evidence and so connected with the admission. That being done, the prosecution went into evidence of the acts of Sharp, to show that he waived his privilege before the committee by not asserting it; in no manner questioning the due appointment of the committee nor its powers. In view of these facts it is too late to raise the question here. Moreover, the decision in the case of People ex rel. McDonald v. Keeler (99 N.Y. 463), establishes, so far as this court is concerned, that the senate had constitutional power to pass the resolution, and that its committee was authorized to carry it into effect. In that case it appeared that charges of fraud and irregularity had been made by the public press and otherwise against the commissioners of public works in the city of New York, and the senate, by resolution, directed its committee "to investigate" that department, with power to send for persons and papers, and report the result of its investigation and its recommendations concerning the same to the senate. The relator was summoned and appeared and testified, but refusing to answer certain questions, was, on the report of the committee, committed by the senate for contempt. Upon habeas corpus questions as to the constitutional power of the senate to order the investigation and legality of its proceedings, were distinctly presented and affirmed.

The case on which the learned counsel for the People now places his argument (Kilbourn v. Thompson, 103 U.S. 176), was cited in favor of the prisoner, fully commented upon by the court, and shown to have no application. The action of congress reviewed in that case was in substance a creditor's bill, or effort to impeach a transaction already closed between the United States and one of its debtors. The Supreme Court of the United States held that as to it congress had no judicial power, and exceeded its authority in the attempted investigation. The McDonaldCase, on the contrary, reviewed a proceeding which was necessary or appropriate to enable the legislature to perform its functions, and it was held to be no objection that it partook in some degree of a judicial character. That case brought up proceedings on all substantial points, like the resolutions which were at the bottom of the inquiry before the senate committee in this case, and its decision makes any further discussion of their validity quite unnecessary. It follows that the investigation before the committee was not beyond its powers, nor were the resolutions under which they acted void, or without legal significance or force. As, therefore, it cannot be said that the committee was without power to compel the witness and require his testimony, the respondent must find elsewhere reasons, if there are any, in support of the proposition that the evidence was by a willing witness. To that end it is further said, in behalf of the People, that Sharp, by not asserting his privilege before the committee, waived it. But if the case comes within the purview of section 79 (supra) of that act, the senate subpœna and the resolution of the senate were compulsory, and it was not necessary for the protection of the witness that he should, either by deed or word, set either at defiance, or refuse to obey the summons, or refuse to answer the questions of the committee. It is enough if he was obliged by law to answer the inquiry, and he could not be required, in order to gain the indemnity which the same law afforded, to go through the formality of an objection or protest which, however made, would be useless. In the Hackley Case (supra), the witness did plead his privilege, but it was of no avail, because he was obliged by law to answer the inquiries, and the law was held imperative and sufficient, although the case was one within the very terms of the Constitution, because by the same law he was protected against the consequences of his admissions. Whether he asserted his privilege, or whether he was silent and submissive to the laws, could make no difference. The legislature, for reasons of public interest, required a discovery of the whole truth as to matters involved in their inquiry. And one answering in compliance with their command cannot be deemed a willing or consenting person within the meaning of the maxim, "volenti nonfit injuria," on which respondent relies. A person who yields from the necessity of obedience cannot be said to have the power of acting by his own choice. And where the law says he shall be compelled to attend and shall be compelled to testify, acquiescence is not election, and he is not one of whom it can be said he receives no injury from that to which he willingly and knowingly agrees and consents. There can be no volition where there is neither power to refuse nor opportunity to elect. Under such circumstances the witness must be deemed to speak for the safety of his person, and in view of the indemnity which the law promises. A man is none the less robbed because, yielding to irresistible power, he makes no resistance; and a witness who gives up his secret at the command of the law is as much under compulsion as if he ventured on the punishment that would follow on his refusing to disclose it. In the Hackley Case there was the plea of privilege, but it availed nothing because the law required an answer. The position of the witness was in no respect changed by the plea. In the Keeler Case (supra) there was refusal to answer under the advice of counsel, but it availed nothing. To refuse to attend the committee or testify would, moreover, have rendered the witness guilty of a misdemeanor. (§§ 68, 69 of the Penal Code). It seems to us that the evidence of Sharp before the committee was given under the penalty of commitment and imprisonment for contempt, and consequently that it was obtained from him by compulsion. So far, we have assumed the case to be within the provisions of section 79 of the Penal Code (supra), and we come now to the contention on the part of the People, that the section (79) does not embrace such investigation, but, on the contrary, is to be limited to such testimony only as might be given upon "trial, hearing, proceeding or investigation in the course of a criminal prosecution, and that it has no application to such testimony as might be given in the course of legislative proceedings or investigations." It was held in People v. Keeler (supra) that the senate might proceed in its own way in the collection of such information as might seem important in the proper discharge of its functions; and whenever it was deemed necessary to examine witnesses, that the power and authority to do so might properly be referred to a a committee with such powers as should appear to be necessary or expedient in the case; and that, notwithstanding the vesting of judicial power in the courts, certain powers, in their nature judicial, belong to the legislature and might be delegated to a committee authorized to take testimony and summon witnesses, and that a refusal to appear and testify before such committee, or to produce books or papers, would be a contempt of the house. It was also held that when institutions or public officers were ordered to be investigated, it is to be presumed that such an investigation was with a view to some legislative action in regard to them; and, moreover, that the terms of the resolution directing it may be looked at to ascertain the legislative intent. The resolutions which led to the examination of Sharp were passed January 26, 1886. They were preceded by a reference to the provisions of the Constitution and statutes relating to street railroads, and the prohibition against such road without "the consent thereto of the local authorities having control of the street upon which it was proposed to construct the road," and a reference to the charges that consent to the railroad upon Broadway, "was obtained through fraud and by and through corrupt influence and bribery of such authorities," viz.: The aldermen of the city of New York, and a recital that a strong and reputable sentiment in that city demands, at the hands of the Senate, "an investigation of the methods in obtaining such consent." It was for these reasons resolved by the senate that its railroad committee be authorized "to investigate fully all matters relating to the methods of the Broadway Surface Railroad Company, or of any other person or corporation relating to, or in obtaining such consent, and also to investigate fully the action of the board of alderman of said city, which granted or gave the same, in respect thereto, or of any member thereof who voted for the same, in respect thereto."

The committee were given full power to prosecute such investigation in such directions as it thought necessary, as to all matters relating to the granting of said consent and the inducements which led thereto, with full power to send for persons and papers and to employ counsel and other assistants in the work before them, and the sergeant-at-arms was directed to attend the sittings of the committee, serve subœpnas and do such other things as it directed. A report was required, with recommendations, and particularly as to the policy of an amendment to the Constitution, vesting the power to grant such consent in some other authority than as at present provided." It is apparent from their terms that the resolution which permitted the examination of Sharp involved an inquiry which the legislature had a right to make, and which, in view of the recitals in the resolution, it was its duty to make in order that the abuses which were disclosed might be cured by further action by the legislature or by the People. The inquiry was judicial in its nature, was to be pursued for a lawful end and by means as comprehensive and sufficient as could be provided. The occasion and the action of the legislature meet every suggestion of the court in the case last cited as to the expression of legislative intent and the imposition of the duty of obedience upon all persons who should be summoned to make, by their testimony, the investigation serve the ends of public justice.

We have seen that there is no conflict between the will of the legislature as expressed in section 79 and the Constitution, and we are now to construe that section in accordance with the legislative intent. In its exposition full effect is to be given to that intention, and if possible full force and validity to every word, so that no part be annulled or rendered nugatory. It cannot be doubted that the case is brought literally within the language of the section (§ 79, supra). Sharp was a person offending against one of the specific provisions of the Code in relation to bribery. He was accused, and has been convicted of giving a bribe. He was, therefore, qualified under that section (79) as a "competent witness." Against whom? Why, against another person "so offending," that is, another person offending against any of those provisions of the Code "relating to bribery." He was, in fact, a witness before the committee in relation to bribery. Was he a witness against another person? The resolution recites, as the immediate cause of the action of the senate, the alleged bribery of certain "local authorities consenting to the railway," and then to make the accusation specific as to the person, says, "the local authority" referred to as the authority which consented, "was the aldermen of said city." There was, then, another person offending.

Sharp was, by the statute, made competent as a witness as to the subject-matter against him. The legislature may be presumed to know that such a person, although made by law competent as a witness against that other person, would even then testify, if at all, voluntarily and to his own crime, and therefore, would not be likely to testify at all, and so they not only make him a competent witness, but add, "and" (he) "may be compelled to attend and testify," meaning, of course, to give evidence against that other person, including at any rate the other party to the transaction. If, as in the case before us, the "person offending" is the giver of the bribe, then he might be compelled to testify against the receiver of the bribe. Where? Why, upon any trial, upon any hearing, upon any proceeding, or "upon any investigation." It follows that if we adhere to the ordinary and natural meaning of these words and apply them to the case in hand, we shall find neither inconsistency nor incongruity, but complete adaptation. The senate was dealing with the charge made against the aldermen of the city, that their consent was obtained by and through certain methods, and, among others, bribery; it admitted that an investigation of those methods was demanded; therefore, the senate authorized its committee "to fully investigate" all matters relating to these methods, and also to investigate fully, not only the action of the board of aldermen which granted or gave such consent, but also that of any member of the board, with full power and authority "to prosecute its investigations in any and all directions in its judgment necessary to a full and complete report to the senate as to all matters relating to the granting of such consent and the influences and inducements which led thereto," and gave to the committee full power and authority to send for persons and papers, to hold its sessions in New York and conduct its "investigations" there. Clearly there is to be an investigation, in the language of section 79, of a charge of bribery of a public officer, with an intent to influence him in the exercise of his powers. The committee were to ascertain, through testifying persons and papers, whether the charge was well or ill-founded. Whoever gave evidence before them attended upon an "investigation" and testified, and unless we greatly confine and limit the meaning which the words used by the legislature usually express, it is impossible to say that the case is not within the statute. It is claimed, however, by the learned counsel for the People, that the "investigation in the mind of the legislature did not include an investigation directed by itself and conducted through its committee, but only an `investigation' in the course of a criminal prosecution, and upon that construction the judgment of the court below was put. It is no doubt the duty of the court to restrain the operation of a statute within narrower limits than its words import, if it is satisfied that giving to them their literal meaning, the statute would be extended to cases which the legislature never intended to include. But this can only be done where a reason for some limitation is found, either in the occasion for which they are used, or in the context. That is not the case here. In the first place the construction contended for in behalf of the People is contrary to the plain and ordinary meaning of the words used. "Any investigation" would include all investigations in the conduct of which persons may be called by authority, as witnesses to testify under oath concerning any matter. Therefore it must include, if taken literally, the action of a legislative committee according to the direction given it, and acting with authority to subpœna witnesses, and enforce their attendance, and examine them upon oath. Nor is it any answer to this conclusion to say that only a judicial investigation was intended. If we are right in the views above expressed, the legislature possessed, and might delegate to its committee any power short of final judicial action, which they thought necessary in any particular case, and although the investigation was only for the collection of information required for the proper performance by the legislature of its own functions, it might nevertheless be a proceeding requiring witnesses and power to compel their attendance. It is, moreover, assumed and claimed by the prosecution that the privilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct, is the same in such an examination as when sworn in court. If that be so, it affords a sufficient reason for including a legislative investigation among the proceedings in which persons otherwise privileged should be compelled to testify. Public policy would often require the fullest disclosure, and the very case before the legislature was an instance in which that policy might be defeated if the utmost latitude was not permitted, and the greatest freedom of examination to ascertain the truth of the public charge that a great and valuable franchise had been obtained through corruption and bribery of public officials.

In In re Falvey (7 Wisc. 630) it appeared that in pursuance of a resolution of the legislature of Wisconsin, not unlike that before us, having for its object the investigation of frauds, bribery, and corrupt acts, charged to have been perpetrated by inducing the legislature to grant certain lands, and the investigation of cases of alleged bribery on the part of certain railroad officials and others in procuring the grant, a committee was appointed with powers similar to those conferred by the resolution before us. One Falvey was subpœnaed before the committee, but refused to answer, and on habeas corpus it was adjudged that he could claim no privilege, and his refusal to answer was a contempt, because the law of that State provided that no person so examined and testifying before a committee so appointed should be held to answer in any court of justice, or be subject to any penalty or forfeiture for any fact or act touching which he should be required to testify. It was held that this language furnished a full protection. No such provision relating to the offense of bribery is found in any statute of this State prior to 1869 (Chap. 742, Laws of 1869), but the legislation on the subject extended from time to time, until consolidated and enlarged in the Penal Code. The provisions of the Revised Laws (Vol. 2, p. 191, § 3) were made part of the Revised Statutes (R.S. vol. 2, tit. 4, pt. 4, Chap. 1, art. 2, § 9, p. 682) and related to the bribery of certain state officers, judges of any court of record and judicial officers. Section 10 of the same article related to the acceptance of a bribe by either of these officers; section 11 related to the acceptance of bribes by jurors, arbitrators and referees, and section 11 to persons who should, by gifts, corrupt or bribe them. In 1853 (Laws of 1853, chap. 217, § 14), by the act amending the charter of the city of New York, and above cited, a penalty was imposed for bribing any member of the common council or other officers of that corporation, and it was provided that every person offending in that respect should be a competent witness against any other person offending in the same transaction, and might be compelled to appear and give evidence before any grand jury or in any court in the same manner as other persons, but declared that "the testimony so given should not be used in any prosecution, civil or criminal, against the person so testifying." In the same year (Laws of 1853, chap. 539), the provisions of the Revised Statutes (ante) were amended and added to; other officials were enumerated as the subjects of bribery, and among them "any member of the common council or corporation of any city," and any person offending against either of the provisions of the preceding sections, was declared to be a competent witness against any other person so offending, and might be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, but it provided that testimony so given should not be used in any prosecution or proceeding, civil or criminal, against the person so testifying."

The act of 1857 (§ 52, supra), is confined to the city of New York, and relates only to bribes offered or given to members of its common council or officers of the corporation, makes every person offending against any of the provisions of that section a competent witness against any other person offending in the same transaction, and closes with an absolution or saving clause similar to that of the act of 1853, last cited.

In 1869 (Laws of 1869, chap. 742), an act was framed for "the more effectual suppression and punishment of bribery." It authorized certain actions in favor of parties injured, and by section 8 provided as follows: "No person shall be excused from testifying on any examination or trial for any offense specified in this act, or the trial of any action authorized by this act, or on any investigation by any committee of the legislature, or either house thereof, into the conduct of any member thereof, or on the trial of any civil action for slander or libel, or any criminal action for libel where such alleged slander or libel imputes bribery, or any offense mentioned in this act, or on the trial or examination of any charge of perjury, committed in evidence given upon any such trial or investigation, on the ground that his testimony will tend to disgrace him or render him infamous, or will tend to convict him of a criminal offense, or render him liable to be proceeded against therefor. But the testimony given by such witness on such trial or investigation shall not be used against him on the trial of any action, civil or criminal, against him. And nothing herein shall be construed as compelling any person to testify in any proceeding or trial in which such person is charged with crime."

Keeping in mind the compulsory and the protecting parts of the foregoing statutes, we come to the statute of 1881 (chap. 676), which establishes a Penal Code and which, so far at least as the crime and proof of bribery is concerned, is in part a codification of preceding enactments. So far as the various provisions of these acts make the offender a competent witness and relieve him from prosecution, they are formulated in section 79, already quoted. (Penal Code, § 79.)

It is apparent from this history of progressive legislation that the word "investigation" cannot be treated as a word of mere amplification to broaden the sense of preceding words, but must be deemed the deliberate expression of an intent on the part of the legislature to bring in a distinct class of cases. Can there be any doubt as to the meaning of the legislature in the corresponding clause of preceding statutes? In that of 1853 (chap. 217), requiring the party to give evidence before "any grand jury in any court," or, in chapter 539 of the same year, "before any magistrate, grand jury, or in any court," or in the act of 1869 (supra), "on any examination or trial, or on any investigation by any committee of the legislature, or either house thereof, into the conduct of any member thereof." Each successive statute goes further than the preceding, one not including an examination before a magistrate, another including it, both obviously confined to examinations in the course of criminal procedure, but the last (1869) bringing in a new species, that of legislative investigation for a certain end, and of a certain described class. But other investigations than those relating to the conduct of its members were frequently entered upon or ordered by the legislature to be made through its committee, in pursuing which, testimony from witnesses was required, and we see no reason to doubt that the legislature intended by the provisions of section 79 to cover all such cases, as well as those formerly provided for, when they involve an inquiry into matters relating to bribery as defined by the various sections of the Penal Code, above referred to. The plain object of that statute was to enable these various tribunals, whether magistrates, grand juries, courts or legislature, to make their investigations into alleged abuses effectual, and enable them to prosecute their inquiries successfully, and to that end protect witnesses whose testimony might otherwise be withheld, but without which the investigation would fail. No reason has been suggested for confining that protection to witnesses other than those who appear upon legislative investigations, and we are not permitted by any rule applicable to the construction of statutes to give the section in question such limitation as will exclude them. It could only be done by inference and by importing into the statute words which the legislature did not choose to employ, and which express a meaning very different from the words actually used. This we are not at liberty to do. "What else," asks a learned judge, "is restraining by inference or varying by interpretation but to a certain extent recasting and remodeling the statute, or, in other words, invading the province of the legislature itself." (WILLIAMS, J., in Garland v. Carlisle, 4 Cl. Fin. 726.) It certainly should not be permitted where the object of the act under examination was to extend the policy of existing statutes to new cases, and enlarge and not restrain its application, nor where the intention of the legislature is clearly expressed in words deliberately chosen, and where a literal construction does not take them beyond the mischief at which they were aimed. The case before us is not only within the words, but within the spirit of the statute, and we are unable to find any doubt or ambiguity in its language which should deprive the defendant of a construction according to the manifest import of the words actually used.

We have not overlooked the contention of the respondent "that sections 68 and 69 of the Penal Code, making the refusal of a witness to attend or testify before a legislative committee, a misdemeanor," limit the inquiry to "material and proper questions," nor the argument thereupon that a question which calls for a "criminating answer," is not a proper question and the witness not obliged to answer. But we think that whatever effect may be given to these sections, they cannot be regarded as excluding the operation of the subsequent sections (78, 79) which deal with the offense of bribery and provide with minuteness for its punishment and the means of its discovery. The actual attendance of the witness, and his disclosures are provided for, and it is clear that to make an investigation upon the subject of bribery effectual there must be some way of compelling both. Within the scope of those sections every question may be asked which is "pertinent" to the subject-matter, and whether it is or not pertinent will be the only question. The statute relieves the witness, and it will not be necessary for the examining or investigating tribunal to concern itself with the effect upon him. If this were not so the whole object of the legislature might be obstructed by the neglect or refusal of witnesses to obey the subpœna or answer the questions of the committee. That those put, on the investigation, the results of which are now before us, were pertinent, is apparent from the use made of the answers thereto upon the prosecution of the person who then testified. If the observations already made are correct, it follows there was error in receiving them against his objection.

Second. Another exception brings up the ruling of the court as to evidence from one Pottle, proving a corrupt proposal by the defendant in 1883. The witness was at the time engrossing clerk of the assembly, and the defendant desired an alteration of a certain bill then pending before that body in reference to street railways, so that its terms might authorize the construction of a railroad on Broadway. For this alteration he proposed to pay the witness $5,000. We are unable to find any ground on which the evidence was admissible. It was introduced as part of the affirmative case which the prosecution were bound to carry to the jury. Its admission is justified upon this appeal by various propositions presented by the People. First, say the learned counsel: "We suppose that every criminal trial begins with a presumption of innocence in favor of the accused. This presumption must be founded on the moral rectitude or fear of the law, or both, whichever the person is supposed to possess. The presumption must be overcome before conviction can be had. Jacob Sharp was accused and brought to trial for bribing the aldermen of the city of New York, and by that means procuring the grant of a valuable right. Evidence was offered to show that not long before he had attempted to bribe another official person to do an act, which, as he thought, would promote the scheme which he had so long pursued. This evidence being given proved beyond a question that no sense of right and wrong, no fear of law or punishment, would deter him from committing the offense of bribery for the one purpose which he had in view in all his efforts." * * * "The evidence objected to proved the irresistible strength of the motive as against all other motives which might have deterred him and upon which the presumption of innocence is founded."

This view cannot be sustained; the commission of a crime by Sharp in 1884, was distinctly in issue. It was bribery, but the subject was Fullgraff, a member of the common council. Of the commission of that crime the law presumed Sharp to be innocent. If Sharp had given evidence of good character the prosecution might have answered that evidence by proof that his character was bad, but I believe it has not been thought by any judicial tribunal that such evidence could be given in anticipation of proof from the defendant, nor that an issue upon it could be tendered by the prosecution. (People v. White, 14 Wend. 111;Webster's Case, 5 Cush. 295; De Witt v. Greenfield,5 Ohio, 227; Com. v. Hopkins, 2 Dana, 418; Burr. on Cir. Ev. 533.) But even in the case I have supposed such evidence would be of general reputation only, and not of particular acts by which reputation is shown.

The effect of the argument for the People is that the evidence shows a disposition to commit the crime, that is a criminal disposition. If that is a different view it is equally inadmissible. A man's general character may perhaps be so bad as to permit an inference that evil and good have to him the same meaning, and that it is a matter of indifference by which he accomplishes his purpose. In a judicial proceeding, however, proof of that would be irrelevant, although it might show, in a moral sense, that he would be likely to commit the crime with which he was charged. The person charged might as well seek to repel the imputation by proof of particular acts performed by him at other periods of his life, and a cause submitted to a jury be made to turn upon the preponderance of proof, on one side of antecedent bad conduct, and proof on the other of virtuous acts. Legally speaking, it would be unsafe to draw a conclusion from either. We are referred to no case holding that upon the trial of an indictment charging a specific crime, committed in a specific way, evidence that the accused was of a particular character would be relevant. Moreover, counsel on both sides seem to agree that the commission of one crime is not admissible in evidence on the trial of the same offender for another crime. It is indeed elementary law that no evidence can be admitted which does not tend to prove the issue joined, and the reason and necessity of the rule are much stronger in criminal than in civil cases for the observance of this rule and of confining the evidence strictly to the issue. The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of evidence of another and extraneous crime is calculated to take the defendant by surprise and do him manifest injustice by creating a prejudice against his general character. How then is this case to be taken out of this general rule of law? The learned judge, in submitting the case, desired the jury to consider the Pottle evidence "as only showing the zeal which the defendant exhibited," and not allow themselves to be prejudiced by his testimony in regard to the offer of a bribe saying, "It is only to be considered as showing, like other evidence in the case, the extent of the defendant's feeling, interest and desire," adding, "I should be sorry if the fact that Pottle testified to the offer of a bribe, should be otherwise considered. * * * So far as it tends to throw any dark shadow upon the character of the defendant, I desire you to eliminate it from your consideration and treat it merely as evidence tending to show depth of interest, motive and desire."

These remarks not only answer the respondent's argument, but point to the danger which might follow from the evidence. They were obviously inadequate to prevent it. Nor does the discrimination between crime proven and a conversation, make the evidence less objectionable. As presented to the jury it was distinctly a crime committed. The point of inquiry was that, and it was plainly so avowed by the counsel for the People. He brought the witness Pottle and Sharp together; proved by him that he then had the "general surface railroad act in his possession as engrossing clerk;" that he had a conversation with Sharp "in relation to the bill;" that he had a conversation with him "on the subject of the bill including or not including Broadway as one of the streets in the bill." Then asked, "had you any conversation with him as to whether he did not did not desire to have Broadway included as one of the streets in the bill." The defendant's counsel objected, but the objection was overruled and an exception taken, and the witness replied, "I did." He was then asked to state "all he (Sharp) said on the subject," and the counsel for the defendant asked "to be informed to what point the evidence is to be directed," saying "there is a particular purpose in this question and I think we might properly be advised what it is." After some discussion the district attorney said, "I intend to prove that Pottle was sent for by this defendant; that he went to defendant's room; that this defendant thereupon offered Mr. Pottle the sum of $5,000 to add to one of the sections of that bill the words `Broadway and Fifth avenue,' permitting a horse railway company to be constructed upon those streets; that Pottle declined the proposition, and that Sharp then offered the same sum in case he would give him the original bill; that is what I desire to prove;" whereupon defendant's counsel said, "we object to it upon the ground that it is evidence of an utterly distinct charge of crime." The court said, "upon the whole my judgment is that the evidence is admissible."

A careful examination of the evidence given by Pottle authorizes the comment of the appellant's counsel that "it was not part of the conversation, but that it was the whole." Unless admissible as proving an attempt to commit a crime, it is wholly immaterial, and, as proof of a crime, it was irrelevant, and must have been very prejudicial to the defendant. It showed a capacity or willingness to commit bribery in 1883, to induce an act from which Sharp might be benefited as one desiring the construction of the road, but which, in fact, gave him no advantage over other citizens. It gave him no franchise; but it could not fairly be inferred from such premises that, in 1884, he did also bribe a different person for a different purpose. The inference would be purely conjectural. The mental ability and disposition of the defendant to commit a crime of this sort, while it might persuade a jury, raises no legal presumption. It is not moral evidence even. The fact under investigation, in its circumstances, was entirely unlike the fact disclosed by the witness. There is no analogy between them. Yet the inference drawn by the prosecuting officer, and permitted by the court, left it for the jury to say that the desire of Sharp manifested by the offer of a bribe in one instance, was the same desire which led to the actual giving of a bribe in the other, hence, that the two crimes had the same origin. Evidence of moral character is admitted to disprove the existence of a criminal motive, or to rebut evidence of it, but evidence of a prior crime can have no legitimate place in an investigation as to whether a subsequent crime was committed by the same person. If it had been proven that Sharp had in fact given the money to Fullgraff, and the question was as to its being an innocent or criminal act, a gift which he had a right to make, or which he made corruptly, the fact, if it were a fact, that he sought to attain a similar end by bribery, might seem to show the intent with which the act charged was done. But here the very thing in dispute was whether he gave the money, and that upon a former and different occasion he had offered money with a guilty purpose to another person, could not fairly be held as relevant to that question. Moreover, it had been distinctly conceded by the defendant that he desired to secure the franchise for the Broadway Surface Railroad, and, therefore, evidence of his commission of a crime for the mere purpose of showing that desire, was wholly unnecessary, and we may repeat here the language of ALLEN, J., in the Coleman Case (55 N.Y. 81) upon a similar question: "It was idle and frivolous to put in this evidence for the purpose avowed, while its influence could not be otherwise than damaging to the prisoner." It was put in near the beginning of the trial and the impression then made must have continued with the jury and, in their minds, colored and deepened, if it did not distort the subsequent evidence.

It did, indeed, cast a dark shadow upon the defendant's character — it not only tended very strongly to prove the defendant guilty, it was absolute proof, but it was of a different crime from that charged. It was offered and received directly on the main issue and was of great and persuasive force against him. Such evidence is uniformly condemned as tending to draw away the minds of the jurors from the real point on which their verdict is sought and to excite prejudice and mislead them. It was, we think, improperly received and the exception to its admission well taken.

Third. We are also of opinion that there was error in the examination of the witness Miller. He was an alderman at the time of the passage of the resolution, but we do not find he was a party to any agreement concerning its passage. Against the objection of the defendant he was allowed to testify that after the "consent" was given he received from De Lacy $5,000. The district attorney then asked: "You understood, did you not that you received that money from De Lacy on account of the Broadway Surface Railroad?" A. "No, sir; nothing of the kind." A further examination as to the circumstances and the time of its receipt followed, and the witness said De Lacy gave me a roll of bills "and said there is something to buy election tickets with." Asked by the district attorney: "Did you not understand at the time, it was paid on account of the Broadway Railroad Company?" A. "No, sir; I had no understanding of that kind with him." Q. "What was your understanding at the time?" To this question there was not only the specific objection that the evidence asked for was incompetent against Sharp, but the further objection that it was asking for a conclusion." The court allowed it and the defendant excepted. A. "There was no particular understanding about it so far as I was concerned." "There was nothing said about it." Q. "What did you think, at the time, De Lacy gave it to you for?" The court held this competent. Witness: "What did I think?" District attorney: "That is the question asked you." A. "About what?" District attorney: "As to what De Lacy gave it to you for?" A. "Well I had my misgivings." District-attorney: "Tell us what did you think at the time what he gave it to you for?" Witness: "I supposed it was for the Broadway road." It is quite impossible to find any ground on which the exception taken can be overcome. The transaction was not with Sharp. The question called for no fact, but with frequent iteration for an opinion, a supposition. Its importance in the estimation of the People is manifest from the repeated and persistent attempts to obtain it. The court below were of opinion that the ruling was erroneous, but that the jury could not have given any effect whatever to the mere expression of opinion, or supposition of the witness, because the whole transaction between De Lacy and the witness was afterwards given. It was, but the narration also was received under an objection and was excepted to. It certainly did not cure the difficulty. The question to be settled was whether the money was part of the fruits of a corrupt agreement, whether the transaction was an incident of the scheme with the formation of which the defendant was charged, whether the alleged fact of bribery was true, and this, like any other question of fact was to be settled by evidence. The opinion, the thought, the understanding of the witness was not evidence. The jury might, however, naturally reason that the conclusion of the witness drawn from all the facts within his own knowledge, fairly represented the nature and the extent of the connection between the circumstance to which he testified and the fraudulent practices which had preceded it. It was admitted because claimed to be relevant and material by the prosecuting officer and the court, and whether in any, or in what degree it did affect the jury, cannot be known. The payment of a large sum of money to the witness was a palpable fact. Whether it was paid to him in his capacity of alderman, or in connection with or on account of the consent obtained from the board of aldermen, could not properly be answered by the jury upon the suspicion or conjecture of the witness. That it was not so answered we cannot say. The respondent's counsel, however (the district-attorney), argues that the question was proper, but that the answer was not responsive. The interlocution between the witness and the prosecutor seems to indicate that there was no misapprehension on the part of the witness, and that the answer was the answer called for by the question and directly fitting to it. The learned counsel did not stop his examination after proving the receipt of the money, but sought the mental conclusion of the witness as to the consideration of or inducement to the gift, and the answer was accepted by him.

Fourth. The public prosecutor, to make out the case and as part of his evidence in chief, offered to show by a detective officer that he had been employed by the district attorney to serve subpœnas upon Maloney, Keenan and De Lacy, all of whom the district attorney claimed to be material and competent witnesses, and to show further that the detective was unable to find them in this state, but did find Maloney in Canada, and there served him with a subpœna and learned that the others were in Canada also, although he did not see them. These persons were named in the indictment as co-defendants with Sharp, and the evidence already in, tended to show that some of them, and especially Maloney, were intermediaries between the persons offending against the provisions of the statutes relating to bribery, or instruments of whomever committed the act charged.

The evidence was objected to by defendant's counsel, but admitted. It was not claimed by the prosecution that the defendant was privy to their absence, or that the object of the proof was to furnish a basis for evidence otherwise inadmissible. The learned district attorney disclaimed any intention "of proving the flight of these persons as co-conspirators" and so make use of their absence as evidence of guilt, or an admission by their conduct that the accusation against them and the defendant was true, but said he offered it only for the purpose of showing that after diligent effort he was unable to procure their attendance as witnesses, and thus enable him to account for their absence.

His claim is that they were depositaries of the direct proof of the conspiracy which the prosecution were engaged in establishing, and accomplices of the defendant. The evidence already in was, so far as Sharp was concerned, altogether circumstantial, but tender to show that the persons named, or some of them, were qualified from actual knowledge to give evidence bearing more or less directly upon the very point in issue. We think evidence of their absence was inadmissible. It could have no legitimate bearing upon the issue, and the danger is very great that such testimony will prejudice a party against whom it is offered. It may be, and frequently is admissible in answer to evidence from the other side which would naturally call for an explanation. But the absence out of the jurisdiction of the court of an associate, or one seemingly connected with the defendant in the act charged, is easily construed as evidence of guilt, and unless the occasion calls for such proof it should not be allowed. It is an old maxim that "he confesses the fault who avoids the trial," but in its application, even to the fugitive, there is great danger of error. A man may avoid the trial from many motives besides consciousness of guilt, but however actuated his conduct can in no degree, in a court of justice, reflect upon another. Its admission in this case was virtually saying to the jury, "there is better evidence, and it might be had from the defendant's associates; it is not the fault of the prosecution that the evidence is not before you, but because of the voluntary act of those who, with the defendant, stand charged with the offense." Thus the non-production of the witnesses is made to supply the place of proof of the issue; with that issue the evidence had no possible connection. The rule is that where a party to an issue on trial has proof in his power, which, if produced, would render material, but doubtful, facts certain, the law presumes against him if he omits to produce that proof and authorizes a jury to resolve all doubts adversely to his defense. But the rule cannot be applied unless it appears that the proof, whether it is a living witness or paper, is within his power. It is easy to see that the evidence offered here might be used for an ulterior purpose, although not pressed by the prosecution, yet entertained and made effective by the jury, and there certainly could be no presumption that the prosecution had the power to produce any particular witness, certainly not one of those named, nor did the law require it of them. It is, therefore, impossible to find any reason for, or lawful purpose to be gained by the proof offered, and its admission was a very dangerous innovation upon the general rule, which excludes it as irrelevant to the issue. Nor was it a mere question as to the order of proof. It was introduced as affirmative evidence, and while it could do the prosecution no legal good, must subject the defendant to the prejudices and unfavorable inferences suggested by the absence of a co-defendant whose presence, if innocent, could not but assist the defendant, but whose absence and refusal to obey a subpœna might easily be regarded as a confession of guilt, and could not fail to strengthen in an appreciable degree the case of the prosecution. The only case cited in support of the ruling isPease v. Smith (61 N.Y. 477). That was a civil action. The absent witness was confined in a State prison, not by his own consent, and whatever may be said of the decision, it has no application here nor should it be extended to other circumstances than those there disclosed.

It is also said by the district attorney that the defendant upon cross-examination of one of the prosecutor's witnesses, had shown the absence of one of these persons and that he was in Canada. The same fact as to all of them seems to have been assumed as if already before the jury. Why then was the evidence insisted upon? In answer to a question from the learned trial judge whether the defendant would not "have a right to argue to the jury in summing up, that, in view of all the testimony, the People should have called Maloney," the defendant's counsel said, "no sir; how could we argue that, when we know already from the opening of the district attorney that Maloney is not accessible to a subpœna," and disclaimed any intention of so doing, or that it "could be done in common fairness," with such earnestness that it is very difficult to see why the introduction of the evidence was pressed, if no other purpose existed than to escape the imputation of keeping back testimony. Proof even of the absence of these persons was inadmissible. But that was not all. The proof was not only of their absence, but of unavailing search by a detective, the service of a subpœna upon some of them and the failure to obey its mandate. Under the circumstances of the case the ruling of the court in this instance may not have been of much importance, and upon it alone we should not grant a new trial. But the legal principle which requires relevant and material evidence, and admits no other, is important, and however serious the charge against an accused person may be, and however great the evil it uncovers, he cannot properly be made the subject of a judicial sentence unless the crime is substantiated according to the established rules of evidence. The other exceptions above referred to point to violations of those rules to the manifest prejudice of the defendant, and to the benefit of those exceptions he is entitled. They require a new trial, and that it may be had the judgment of the court below and the conviction should be reversed, and a new trial granted.