People v. Spencer

New York Supreme Court

People v. Spencer

21 N.Y.S. 33, 10 N.Y. Crim. 236, 48 St. Rep. 803, 73 N.Y. Sup. Ct. 149, 48 N.Y. St. Rep. 803, 66 Hun 149

CourtNew York Supreme Court

DecidedNovember 22, 1892

StatusPublished

Cited by3 cases

This text of 21 N.Y.S. 33 (People v. Spencer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Spencer, 21 N.Y.S. 33, 10 N.Y. Crim. 236, 48 St. Rep. 803, 73 N.Y. Sup. Ct. 149, 48 N.Y. St. Rep. 803, 66 Hun 149 (N.Y. Super. Ct. 1892).

Pincite

Opinion

HERRICK, J.

The defendant was subpoenaed before the grand jury to testify as. to his having given money to the police commissioners to be permitted to keep a gambling house, and upon his testimony, with that of others, such commissioners were indicted for bribery, his testimony showing that he had paid them money for such purpose. A few days after, the same grand jury indicted the defendant for keeping a gambling house. Having used the defendant as a witness, his testimony could not be used against him. Pen. Code, § 79.¹ Here thesame grand jury who heard his testimony found the indictment against him. The fact that it was found a few days after he was sworn, and after the charge upon which he was sworn was acted upon, it seems to me makes no difference. If it had been the testimony of another witness, they would have had the right to consider it, although he was not resworn, or his testimony read in the second case, and the jury could not very well dismiss from their minds his testimony given in the first case, in their consideration of the second one. When a witness is used under such circumstances, the utmost good faith should be observed in dealing with him, and the spirit, as well as the letter, of the law should be regarded. [34]*34Here it seems to me both were violated. How much the grand jury was influenced by his testimony cannot be told, neither does it make any difference. The case seems to me plainly within the principle enunciated in People v. Singer, 18 Abb. N. C. 96; People v. Briggs, 60 How. Pr. 17; People v. Clark, (O. & T.) 14 N. Y. Supp. 642; People v. Brickner, (O. & T.) 15 N. Y. Supp. 528; People v. Clements, 5 N. Y. Crim. R. 298; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195,—and it was a violation of the immunity granted to a witness by section 79 of the Penal Code. The judgment of conviction should be reversed, and the indictment dismissed. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

HERRICK, J.

The defendant was subpoenaed before the grand jury to testify as. to his having given money to the police commissioners to be permitted to keep a gambling house, and upon his testimony, with that of others, such commissioners were indicted for bribery, his testimony showing that he had paid them money for such purpose. A few days after, the same grand jury indicted the defendant for keeping a gambling house. Having used the defendant as a witness, his testimony could not be used against him. Pen. Code, § 79.¹ Here thesame grand jury who heard his testimony found the indictment against him. The fact that it was found a few days after he was sworn, and after the charge upon which he was sworn was acted upon, it seems to me makes no difference. If it had been the testimony of another witness, they would have had the right to consider it, although he was not resworn, or his testimony read in the second case, and the jury could not very well dismiss from their minds his testimony given in the first case, in their consideration of the second one. When a witness is used under such circumstances, the utmost good faith should be observed in dealing with him, and the spirit, as well as the letter, of the law should be regarded. [34]*34Here it seems to me both were violated. How much the grand jury was influenced by his testimony cannot be told, neither does it make any difference. The case seems to me plainly within the principle enunciated in People v. Singer, 18 Abb. N. C. 96; People v. Briggs, 60 How. Pr. 17; People v. Clark, (O. & T.) 14 N. Y. Supp. 642; People v. Brickner, (O. & T.) 15 N. Y. Supp. 528; People v. Clements, 5 N. Y. Crim. R. 298; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195,—and it was a violation of the immunity granted to a witness by section 79 of the Penal Code. The judgment of conviction should be reversed, and the indictment dismissed. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

21 N.Y.S. 33, 10 N.Y. Crim. 236, 48 St. Rep. 803, 73 N.Y. Sup. Ct. 149, 48 N.Y. St. Rep. 803, 66 Hun 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-spencer-nysupct-1892.

Opinion

Related

Cite This Page — Counsel Stack