Opinion
July Term, 1903.
L. Laflin Kellogg, for the appellant.
Howard S. Gans, for the respondent.
The defendant was indicted for a violation of section 344a of the Penal Code, and appeals from a judgment of conviction. There are two questions presented upon this appeal which we think require discussion. The constitutionality of this section of the Penal Code has been sustained by this court in People ex rel. Wilson v. Flynn ( 72 App. Div. 67), and that question is not open to further debate here.
The first question is as to the sufficiency of the indictment; the objection being that the indictment is insufficient because it neither alleged knowledge by the defendant of the character of the papers, the possession of which is prohibited by the statute, nor that the defendant either had used or intended to use them for an unlawful purpose. Section 344a of the Penal Code provides that "a person * * * who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called `policy,' or in the nature of a bet, wager or insurance, upon the drawing or drawn numbers of any public or private lottery; or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called `policy,' * * * is a common gambler and punishable by imprisonment." The act which this section makes a crime is the possession knowingly of any writing, paper or document representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called "policy," or any paper, print, writing, numbers, device, policy slip, or article of any kind, such as is commonly used in carrying on, promoting or playing the game commonly called "policy." There are two elements necessary to constitute this crime. The first is possession by the defendant. The second is a knowledge of the fact that the writing is in his possession and of the character thereof, and if the indictment sufficiently and clearly charges the defendant with these two essential facts — the possession of the papers, documents or articles specified in the statute, and knowledge by the defendant of such possession, with knowledge of their character — it is sufficient.
By section 275 of the Code of Criminal Procedure, the indictment must contain "a plain and concise statement of the act constituting the crime, without unnecessary repetition;" and section 284 of the Code of Criminal Procedure provides that the indictment is sufficient if it can be understood therefrom "that the act or omission, charged as the crime, is plainly and concisely set forth;" and that "the act or omission, charged as the crime, is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case." Section 285 provides that "no indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits." Section 323 provides that the defendant may demur to the indictment when it appears on the face thereof that the indictment does not conform substantially to the requirements of section 275; that is, where the indictment does not contain a plain and concise statement of the act constituting the crime, without unnecessary repetition. Section 331 provides that "the objections mentioned in section three hundred and twenty-three can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty, and in arrest of judgment."
The only objection to this indictment, therefore, that can be considered on appeal from a judgment is, that the facts stated do not constitute a crime, and it follows that if the indictment charges the defendant with having "in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called `policy,' * * * or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called `policy,'" it states the facts which constitute the crime, and is sufficient after a plea of not guilty. It is settled under the Code of Criminal Procedure that it is generally sufficient to state an offense in the language of the statute defining the crime. ( People v. West, 106 N.Y. 293; People v. Weldon, 111 id. 569; People v. Williams, 149 id. 1.) The indictment in this case is in the words of the statute. There are two counts. The first count charges that the defendant "did knowingly have in his possession a certain writing, paper and document representing and being a record of a chance, share and interest in numbers sold in what is commonly called policy, which said writing, paper and document is as follows, that is to say;" and then follows a description of the document and writing alleged to have been found in the defendant's possession. The second count charges that the defendant "did knowingly have in his possession a paper, print, writing, numbers, device, policy slip and articles of a kind such as is commonly used in carrying on, promoting and playing the game commonly called policy, which said paper, print, writing, numbers, device, policy slip and articles aforesaid is as follows;" then follows a description of the document and writings found in the possession of the defendant. This plainly charged the defendant with the crime specified in section 344a of the Penal Code, and was a plain and concise statement of the act constituting the crime.
The case of People ex rel. Wilson v. Flynn ( supra) is not at all opposed to this view. The court was there considering the question of the constitutionality of section 344b of the Penal Code, and as that section was to be construed in connection with section 344a the question was considered only in relation to the constitutionality of section 344b. We held that the presumption provided for in section 344b could only be applied where the documents or articles are found under such circumstances and conditions as indicate that they may have been used in violation of the prior section, and in order that the People may avail themselves of the provisions of section 344b it must be made to appear that the articles were in use in connection with a place used for doing the prohibited acts, or that a fair inference arose from the circumstances surrounding the possession that they were or might have been unlawfully used; that to justify the presumption specified in section 344b the People must show a relation between the principal fact, viz., the existence of a condition from which it may be fairly inferred that the articles may have been used in violation of the provisions of the section defining the offense. The discussion there had no relation to the sufficiency of an indictment under section 344a, and nothing that was said can be construed as applying to an indictment or proof necessary to convict under that section.
The indictment being sufficient, we think the evidence justified a conviction of the defendant of the crime charged in section 344a of the Penal Code. There was found in a trunk, in a private office exclusively occupied by the defendant, certain sheets which were records of numbers upon which bets had been made in playing the game commonly called policy. This game of policy is described by a witness who had been connected with the game, and was familiar with the materials, papers and writings that are used in its promotion. He testified that there are "policy manifold books." The method of this form of gambling was described as follows: "When an individual makes up his mind to play policy he goes into a place for that purpose, and goes to the man in charge of the place, and says he wants to play 9-19-29, which is known as a dead gig; he puts ten cents on it, or he may put two cents, or whatever he sees fit. The man takes his money, and formerly he used to give him what they called a lottery policy, which is a record. In the case illustrated it was 9-19-29, and ten cents alongside the gig mark, which would serve to identify him in the afternoon, to find the result of his play, and the writer would record that bet on a similar sheet to those. He would take a stylus, or lead pencil, whatever he would see fit to use, and mark in one of those columns 9-19-29, gig mark, ten cents, and he would have a carbon paper over two similar sheets, and make two copies and an original; that the player got a little slip of paper with the numbers on it and a record of his bet, so as to identify him on this return;" that "at the time the book closed, which in the morning was 12:30, these books were sent to headquarters, and at 2:30 the result of the drawing would be sent to these shops by means of what they called a policy slip; in some cases, over the 'phone, and others by messenger; and the man who played in the morning would enter and inquire for the result, and he would then be handed a policy slip, which is a slip generally stamped with a rubber stamp, having two columns, with the morning drawing. He would then consult each one of those columns to find whether his gig had come out. If it had, he was a winner, and would receive ten dollars, and if it had not he would get nothing. * * * These things which are now being shown the jury are the kind of sheets made up by the person who sold the policy, and which I have seen made; we found those all over the city. I have actually seen them in process of making."
There was, therefore, evidence that these manifold sheets were the sheets used in playing policy as thus described by the witness, and if they were found in the possession of the defendant, and he had knowledge of the fact that they were there, he was guilty of the crime specified in section 344a of the Penal Code.
We also think it quite clear that the evidence was sufficient to sustain a finding that these manifold sheets were in the defendant's possession. They were found in a trunk in his private office, which the defendant had directed should be placed in this office, in which there was also a desk and tin boxes. In the desk and tin boxes were found papers that manifestly belonged to the defendant relating to his business, some of which were in his handwriting or had been signed by him. The trunk in which these manifold sheets were found was locked. It had been placed in his office open and empty by his direction, and these sheets were found in the trunk with other papers which clearly belonged to him; we think the jury were entirely justified in finding that these papers were in the "possession knowingly" of the defendant.
The remaining question is as to the competency, as evidence, of the papers found in the desk, tin boxes and trunk in the defendant's office. This office of the defendant was in a back room in the offices of a firm of real estate brokers and agents in the city of New York. It had been occupied by the defendant for several weeks as his private office and had his name upon the door. Police officers under what is stated in the evidence to have been a search warrant, although this search warrant was not produced, took possession of the defendant's office. Shortly after they were in possession the defendant came in, and when he was informed of the object of the presence of the police officers he warned them not to touch anything in the office as nothing there belonged to him. He was, however, arrested and the officers proceeded to examine the trunk, the three tin boxes and the desk. Having discovered in the trunk policy sheets, they took from the desk all papers that were there and, with the trunk and tin boxes, these were conveyed to the district attorney's office. The officers testified that they were acting under a search warrant which was exhibited to the defendant. When the various papers that were found in the desk, tin boxes and trunk were offered in evidence the defendant objected to their admission upon the ground, among others, that "it appears by the testimony that the exhibits sought to be introduced in evidence were the result of a seizure of the defendant's personal papers under a search warrant, and I take the ground that the introduction of the same in evidence against his objection is compelling him to be a witness against himself in violation of the Constitution of the United States and the State of New York, and I protest, on his behalf, against their introduction and say that it is without his consent that they are now offered." This objection was overruled, to which the defendant excepted.
The papers thus found in the defendant's office, either in the trunk or tin boxes, that had relation to the game of policy, were competent evidence as to the main fact upon which the indictment was founded, i.e., the possession by the defendant of these documents and papers. The other papers found in the defendant's office in connection with these prohibited documents with proof that they related to the defendant's private business or property, were competent to prove that the defendant was in possession of the policy papers, unless the fact that they were illegally taken from his possession makes them incompetent evidence against him. We will assume that the seizure by the police officers of all the defendant's private papers was unlawful, and that officers thus seizing the papers were liable for a trespass or larceny. The question then is whether papers thus procured are incompetent evidence against a defendant charged with the commission of a crime because possession of them was illegally obtained?
In support of this objection the learned counsel for the defendant relies upon the opinion of the Supreme Court of the United States in Boyd v. United States ( 116 U.S. 616). That case held that an act of Congress authorizing a court of the United States in revenue cases, on motion of the government's attorney, to grant an order requiring the defendant charged with a crime to produce in court his private books, invoices or papers was a violation of the 5th amendment of the Federal Constitution. This amendment relates solely to proceedings in the courts of the United States, and while there are undoubtedly some expressions in Mr. Justice BRADLEY'S opinion which question the admissibility in evidence of private papers illegally seized as against a person accused of crime, the question decided was as to the provision of an act of Congress which justified the court in granting an order requiring the person accused of a crime to produce in court his private books and papers for examination. The learned counsel for the defendant insists that the admission in evidence of the private papers of the defendant thus unlawfully seized by the police officers was a violation of the defendant's constitutional right to be secure in his person, papers and effects against unreasonable searches and seizures, and that he was compelled thereby to be a witness against himself. The provision of the Constitution of this State which is alleged to be violated is section 6 of article 1, which provides that no person shall "be compelled in any criminal case to be a witness against himself," and the question is whether, by the admission in evidence of these papers and documents, the property of the defendant, unlawfully seized by the police officers, the defendant was compelled to be a witness against himself. The defendant was not called as a witness. He was called upon or required to produce no testimony. Certain documents and papers found in his possession were offered in evidence, as speaking for themselves, as to a fact to be proved upon his trial for a crime. It was not the contents of the papers that were material, except so far as they showed that they were papers which related to the defendant's affairs and were such as were ordinarily found in the possession of an individual. Here certain papers, the possession of which made the defendant guilty of the crime, were found with other papers which showed them to be in the possession of the defendant. All of the papers together thus found, under circumstances which indicated that they were in the possession of the defendant, were introduced in evidence. This was not calling the defendant as a witness or compelling him to testify against himself. It was a fact which was proven by the evidence of a police officer who testified as to the possession of all these papers. Under the search warrant the officers had the right to search the premises of the defendant to discover, if possible, the possession of the papers for which they were authorized to search. If they, in the process of that search, had discovered these other papers that were seized and presented to the court, and had testified to the papers that they found in the office of the defendant, certainly that evidence would have been competent to show that the policy papers were found in connection with other papers clearly the property of the defendant, which tended to show that the defendant had possession of the policy papers with knowledge. That being so, the fact that the police officers took the papers themselves and offered them in evidence, although when they took such possession they exceeded their legal authority under the search warrant, would not have the effect of making the fact of the possession of the papers the property of and in the handwriting of the defendant incompetent evidence. The evidence against the defendant was the evidence of the police officers who found these papers, documents and books in a position which indicated that they were in the possession of the defendant, and which tended to show that the policy papers, the possession of which was a crime, were also in his possession. It was the possession by the defendant of the papers which was the fact testified to, and that testimony was competent, not from the defendant, but from the police officers, who testified as to the location of the papers which were produced and introduced in evidence. Assuming, therefore, the correctness of the opinion of Mr. Justice BRADLEY, I do not think that the evidence of the possession of these papers by the defendant and their production upon the trial was a violation of the privilege secured to the defendant by section 6 of article 1 of the Constitution.
But, irrespective of that, we do not think that this privilege of the defendant was violated by the introduction of papers taken from his possession, however taken. While this question does not appear to have been directly presented in this State in relation to books and papers, it has been uniformly held in other States, and in text books, that the fact that the possession of papers or articles have been illegally taken or seized constitutes no ground for excluding the evidence thus obtained upon the trial under an indictment of a person in whose possession they were found. In Greenleaf on Evidence (Vol. 1 [15th ed.], § 254a) this is expressly stated to be the rule, and this rule has been followed in other States. ( Gindrat v. People, 138 Ill. 103; Commonwealth v. Tibbetts, 157 Mass. 519; State v. Van Tassel, 103 Iowa 6; Chastang v. State, 83 Ala. 29; State v. Flynn, 36 N.H. 64; State v. Atkinson, 40 S.C. 363; Williams v. State, 100 Ga. 511; State v. Kaub, 15 Mo. App. 433.) In Ruloff v. People ( 45 N.Y. 213) the defendant, Ruloff, was convicted upon the evidence procured by a detective, who visited his room where he lived and there found certain burglary tools, papers and articles in a desk which tended to show that the defendant occupied and had control of that room. And in People v. Gardner ( 144 N.Y. 119) and People v. Van Wormer (175 id. 188) this objection is authoritatively answered.
Without further discussion, we think it clear that the introduction of these papers and documents was not a violation of any right assured to the defendant, either by the Constitution or the law, and the admission of the papers did not constitute legal error.
Our attention has also been called to other rulings on evidence and to objections to the charge of the court. It is sufficient to say that we have examined these rulings and find no error. The charge of the court to the jury was very full, and fairly stated the questions that they had to decide, throwing around the defendant all the safeguards to which he was entitled. All of the requests made by the defendant were charged, and there is but one exception to the charge as made, and that is clearly without merit. Twice the jury returned for further directions, and both times the instruction given was satisfactory to the defendant. No exception was taken, and the court instructed the jury in accordance with the requests of the defendant's counsel. The defendant had a fair trial. He was defended by experienced and able counsel. The jury, upon competent and sufficient evidence, found him guilty, and there is nothing in the record that would justify the court in reversing the conviction.
It follows that the judgment appealed from should be affirmed.
PATTERSON, HATCH and LAUGHLIN, JJ., concurred.
Judgment affirmed.