People v. Doody

The statutory definition of perjury, so far as it relates to this case, is: “A person who swears . . . that he will truly testify ... ón any occasion in which an oath is required by law or is necessary for the prosecution or defense of a private right or for the ends of public justice or may lawfully be administered and who in such action . wilfully and knowingly testifies . . . falsely in any material matter or states in his testimony . . . any material matter to be true which he knows to be false, is guilty of perjury.” (Penal Code, sec. 96.)

On the Fielding trial when it is claimed that Doody committed perjury it was not only material but necessary for the People to show that Doody had furnished Fielding, who- was then deputy commissioner of city works, the names of men who would bid on public work as his representatives, but also that

So far as appears Doody was the only person other than Fielding, the defendant then on trial, who had direct personal knowledge as to whether such names had or had not been given by Doody to Fielding, and as to whether the corrupt payment had or had not been made as charged in the indictment. If Doody then had a personal recollection in regard hr the matters about which he was interrogated a truthful statement of such recollection was material in determining whether Fielding was guilty or not guilty of the charge against him.

If Doody then well knew and remembered that he did not furnish to Fielding the names of persons who would bid upon work as his representatives, and that he did not pay ten per cent, of the amount of said contract to Fielding, it was necessary for the ends of public justice that he should so testify to the end that the defendant so unjustly charged with crime might be relieved therefrom, and from the danger of conviction on a false charge.

If Doody then well knew and remembered that he did furnish Fielding the names of persons who would bid upon work as his representatives and that he did pay ten per cent of the amount of said contract to Fielding, it was necessary for the ends of public justice that he should so testify to the end that the defendant so on trial should be convicted and punished.

The statutes defining perjury and providing the punishment therefor are designed to prevent the failure of justice. When a person well knows and remembers what occurred in connection with an alleged criminal transaction, and the facts so well known and remembered by him are material in determining the guilt or innocence of a person accused, it is perjury within section 96 of the Penal Code to falsely testify that he does not remember what occurred in connection with such transaction.

In Regina v. Schlesinger (10 Q.

Another member of the' court said: “ The objection to the assignment of perjury in the first and second counts seems to me to amount to no more than this: that, because it is very difficult of proof, therefore it is bad. But there would be an easy mode by which witnesses might' in many cases escape the consequences of perjury if using the saving words ‘I think’ made them not indictable.”

In People v. Robertson (3 Wheeler’s Crim. Cas. 183), it is said: “ In the present case the defendant swears also ‘ that he has cause to suspect and does suspect ’ that the wool was stolen by Bishop. The indictment alleges that he had not cause to suspect and did not suspect that the wool was stolen by Bishop. The jury have pronounced the charge in the indictment to be true. "Whatever doubts may have once existed, it is now clearly settled that a man may be * convicted of perjury in swearing that he believes a fact to be true which he knows to be false.’ ”

An expert may be guilty of perjury in swearing to a false opinion. (2 Bish. Crim. Law, sec. 878; State v. Henderson, 90 Ind. 408 .)

A person who testifies that he believes a certain statement to be true when he has no probable cause for such belief is guilty of perjury. (State v. Knox, 61 N.

“ Where a man swears that a thing is so or that he believes it to be so, when in truth he does not'believe it to be so, the oath is false, though the fact really be as stated.” (State v. Cruikshank, 6 Blackf. [Ind.], 62.)

An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. (Penal Code, sec. 101.) The facts stated in the indictment-of the defendant are sufficient to constitute a crime.

Where oral evidence is relied upon to convict a person of perjury, it- is necessary to prodxic© at least two witnesses, oi* one witness, supported by corroborating and independent circumstances. This rule arises by reason of the fact that where oath is placed against oath it remains doubtful where the truth lies. It is manifest, however, that this rule does not apply in eases where the proof of the perjury is necessarily based upon circumstantial evidence. It is only necessary in any case to produce evidence sufficient to counterbalance the oath of the defendant and the legal presumption of his innocence. (People v. Stone, 32 Hun, 41 .)

That a person can be convicted of perjury without the production of a witness to testify to the falsity of the evidence of defendant on which the indictment rests is held in United States v. Wood ( 14 Pet. 430 ). In that case “ The defendant was indicted for perjury in falsely taking and swearing ‘the owner’s oath in cases where goods have been actually purchased,’ as prescribed by the fourth section of the supplementary collection law of the first of March, 1823. The perjury was charged to have been committed in April, 1837, at the custom house in New York on the importation of certain woolen goods in the ship Sheridan. The indictment charged the defendant with having intentionally suppressed the true cost of the goods with

It follows, therefore, that whether defendant was guilty or innocent of the crime charged in the indictment, was a question of fact for the jury to determine. That the evidence presented a question of fact for determination by the jury seems to have been assumed by the defendant at the trial.

The only answer of the defendant to the testimony presented against him was that his mind and memory had become so impaired by disease that he was not legally accountable for his

The defendant asserts that the district attorney in his opening to the trial jury was erroneously allowed to call their attention to numerous statements made by the defendant involving independent crimes in which the defendant was a participant. A casual reading of the opening might seem to justify such criticism, but a more careful examination of the whole record convinces us that the evidence referred to by the district attorney was properly received and that the defendant has had a fair trial. The opening of the district attorney is expressly based upon the defendant’s statements and confessions. Everything stated by the district attorney in his opening was shown on the trial as stated by him by the receipt in evidence of conceded copies of the defendant’s testimony before the grand jury, and on former trials of indictments found upon the evidence so given by the defendant.

The evidence presented on the trial consisted wholly of defendant’s statements and the circumstances; surrounding the same. It is only necessary, therefore, to consider whether any of such statements and confessions are incompetent and harmful. The question at issue on this trial was not whether the defendant had committed the crime of bribery, but was wholly a question of the defendant’s memory in regard thereto. It is somewhat analogous, to a question of testamentary capacity.

Prior to 1896 defendant had never been engaged, at least to

The defendant had repeatedly testified in substance that he made these unlawful payments to Fielding in every instance and also to others on each contract, so that the unlawful payments amounted to thirty-five or forty per cent, of the entire amount received by him. If his statements were true, the several contracts were so intimately connected and so interwoven as to be difficult of separation in fact, and almost impossible of separation in the memory of the person who arranged and carried out the unlawful agreements. His statements are to the effect that he was unable to get any public work except by making and carrying out such unlawful agreements. His memory in regard to a single contract was necessarily linked to and associated with the entire scheme by which Fielding was in each instance to receive his percentage. The defendant’s statements, theretofore repeatedly made in court and to public officers in regard to the details of such transactions, had a legitimate and immediate bearing upon the strength of the defendant’s memory in these intimately associated transactions. All of the defendant’s statements referred to by the district attorney in his opening and offered and received in evidence on the trial, related to these several contracts, and were in the nature of a consecutive history of his transactions with the city works department and tended to show his mental powers. The time and purpose of these statements and the severe consequences arising therefrom emphasize their materiality.

Confessedly the defendant had taken upon himself the unenviable position of an informer, with full knowledge of the probable consequences to his associates, and his statements in connection with such information were properly considered by the jury in determining whether on the last trial of Fielding the testimony given by him was knowingly false and untrue.

Prior to Fielding being granted a new trial, there had been a failure to convict some of the others who were indicted on the disdosiires made to the grand jury by the defendant. That the defendant sympathized with Fielding was openly stated by him. Notwithstanding defendant had repeated all of the details of the several transactions from time to time under oath and before the district attorney, and that within three days before the last Fielding trial there was read to him his former testimony containing every statement which the defendant now claims the court should have excluded, and that, he then discussed the same without showing any impairment of memory, he suddenly loses all recollection as to whether the transactions with Fielding ever took place, and testifies that he has no memory as to whether they did or did not take place. The important question on the trial of the indictment for perjury herein was the strength of the defendant’s memory. His

The judgment should be affirmed.

All concurred, except Etjrsman, J., dissenting in an opinion.

One Fielding, who was deputy commissioner of a city department of Brooklyn, was indicted and tried for having knowingly approved a false claim against the city. On the trial the defendant was a witness for the People and is charged with having then falsely testified that he did not remember having had any conversations with Fielding in reference to matters material to the issue then being tried. The indictment sets out the alleged false testimony in detail and negatives the truth of such testimony in every particular. I do not deem it necessary to here point out the charges of the indictment more specifically because in my judgment there were errors committed at the trial which compel a reversal of the conviction, and, therefore, the question whether the evidence establishes the guilt of the defendant need not be gone into. Every person charged with crime is entitled to a fair trial, and however guilty he may be his guilt must be established by proper and competent evidence. Every improper statement of a prosecuting officer made during the trial which is calculated to influence or prejudice the minds of the jury against the accused, and each item of incompetent evidence having a tendency to lead them to conclude that he is guilty

Again: “ When the time came to get certain work through in the sewer department he had to see a man named Goff, and Goff demanded fifty dollars a week, and he had to pay Goff and he did pay Goff fifty dollars a week to overlook the work and let things go through.”

Again: “ In the investigation, when the various warrants turned up, this condition appeared. Thomas Fraser & Company seemed to be the repository of nearly all the warrants that came directly to Doody; whether it will become necessary to

Again: “ Contracts made and money expended without any authority in law. What is the cause of it ? They sent over to the district attorney’s office for an investigation, and the investigation proceeds to a certain stage, and immediately we are up against a stone wall. Who is Fraser & Company? Who is Cozzens ? Who is Finlcle, and who is Heyward ? But a little probing soon revealed in all this filth and rubbish this man Doody. What was to be done? It was soon discovered he was the real criminal. ' He was the hub, and without him the spokes of the wagon could not remain on. We sent for his son, as his name appeared on some of the vouchers. It will appear by his father’s testimony that the-son came before the grand jury, and he refused to answer. ... I show motive for the responsibility he was assuming, to show that, under that

Again: “ That was his position in March, 1898, and on his testimony these indictments were all secured against these people. A short while after that Milne, who had been his friend, came into court and pleaded guilty. He was the young inspector out on the works to whom he had paid one hundred dollars. Milne pleaded guilty and was sent to the penitentiary.”

These remarks (and others which I have not quoted) were highly improper and well calculated to excite prejudice and harmful bias against the defendant in the minds of the jury. They were unrebuked by the court and objections to them were overruled. The jury must have supposed that they were approved by the presiding justice, especially as wholly incompetent evidence was afterwards admitted, against objection and exception, in proof of these statements. Statements of this character by the public prosecutor in criminal cases have been repeatedly condemned by appellate courts and new trials granted because of them. (People v. Smith, 162 N. Y. 520 ; People v. Mull, 167 id. 247; People v. Fielding, 158 id. 542, see p. 547 and cases cited; People v. Milks, 55 App. Div. 372 .)

The only crime charged in the indictment being perjury, alleged to have been committed in' falsely testifying that he did not remember certain conversations with Fielding, the prosecution was allowed to prove by reading from the testimony of the

Assuming that this evidence was pertinent to some inquiry then pending before the grand jury, it was clearly incompetent on this trial, and necessarily harmful to the defendant by holding him up to the jury as one habitually guilty of defrauding the city of Brooklyn and bribing its officials. Assuming, again,

The admission in evidence of the several indictments against Willis and Phillips for conspiracy, against Willis for bribery, against Knapp for conniving at the audit of a fraudulent claim, against Milne for the same offense, against Olark and Leaycraft severally for accepting money to influence their acts as aider-men, and against Goff and Jensen for accepting bribes, was improper. An indictment is a mere accusation. 11 neither proves nor tends to prove anything even against the defendant named in it. Even a witness cannot properly be asked whether he has been indicted, because an indictment furnishes no proof of guilt, and to permit an affirmative answer might improperly influence the jury against his credibility. (Kober v. Miller, 38 Hun, 184 , and cases cited.) These indictments bore no relation to any question involved in this trial. It was made to appear that they were found upon the evidence of the defendant above referred to and which connected him with each of the offenses named in them. It is obvious that this evidence could have had no other effect than to improperly influence the minds of the jury against the defendant.

It was error also to permit to be read in evidence the remark of the presiding justice on the first trial of Fielding concerning this defendant to the effect that he was an unwilling witness. The opinion of the judge, thus proved, that the defendant was reluctant to tell the truth on that trial may well have influenced the jury to believe that he testified falsely on the second trial. (People v. Hill, 37 App. Div. 327 ; People v. Brow, 90 Hun, 509 ; People v. Corey, 157 N. Y. 332 .) Other errors are alleged which it is unnecessary now to consider, inasmuch as