The People of the State of New York, Respondent, v. Edward B. Coombs, Appellant, Impleaded with George H. Nason

The People of the State of New York, Respondent, v. Edward B. Coombs, Appellant, Impleaded with George H. Nason. I. Crime — Fraudulently Presenting Bill to Public Officer for Payment — Sufficiency of Indictment against Two Coroners for Presenting False Bill for Inquests. An indictment, under section 673 of the Penal Code, charging two coroners with having knowingly and fraudulently presented a false bill for inquests to the auditing officer for audit and payment, sufficiently states the offense as to one of the defendants on his separate trial, when it alleges the presentation of the bill, the fact that it was false and fraudulent and known to be so by such defendant when he presented it, and that various items in the bill for which such defendant charged were entirely fictitious to his knowledge, although there is no allegation that the inquests represented by those items were not held by his co-defendant. 3. “ Coroner’s Inquest” Defined. A “coroner’s inquest” means a judicial investigation into the cause of death by a coroner, with the aid of a jury; and a fee for an inquest cannot properly he charged unless a jury was impaneled to determine the cause of death. 8. False Inquest Papers Retained in Coroner’s Office Available-against Him on Trial for Presenting False Bill Based Thereon — 3STo Violation-op Constitutional Rights. False and fictitious inquest papers, made up by a coroner’s clerk and retained in the coroner’s public office for the purpose of being filed with the county clerk at some future time, purporting to be regular public papers, and constituting vouchers for a false bill for inquests, are not private papers of the coroner, and their production on a trial of the coroner for presenting such false bill for audit, under a subpmna to their custodian in the coroner’s office, calling for public documents, is not a violation of the defendant’s constitutional rights of exemption from unreasonable search or seizure of papers, and from being compelled to give evidence against himself. (Argued March 1, 1899; decided April 18, 1899.) 4. Receipt by Defendant of Proceeds of Fraudulent Bill. When, on the trial of an indictment against a coroner for presenting a fraudulent bill for inquests, it appears that the bill was presented to the auditing officer by the defendant’s clerk and not by the defendant personally, it is competent to show that the defendant had received the proceeds. 5. Appeal—Harmless Error Disregarded. When technically inadmissible evidence, admitted on a criminal trial, apparently did not affect the case or prejudice the defendant, the error is to be disregarded on appeal, by force of section 543 of the Code of Criminal Procedure. Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1899, affirming a judgment entered upon a verdict rendered at a Criminal Trial Term convicting appellant of the crime of fraudulently presenting a false and fraudulent bill and claim, and a bill and claim containing false and fraudulent items, to a public officer for audit, allowance and payment, in August, 1897. The facts, so far as material, are stated in the opinion. People v. Coombs, 36 App. Div. 284, affirmed. Joseph A. Burr and Frederick E. Crane for appellant. The demurrer of the defendants was well taken upon the ground that the facts stated in the indictment did not constitute a crime, or if they did that more than one crime is charged in the indictment, and that the defendants have been improperly joined and charged therein. The motion in arrest of judgment was improperly denied, upon the ground that the facts stated in the indictment did not constitute a crime. This question may be raised as well by motion in arrest of judgmerit as by demurrer. (Code Crim. Pro. §§ 275, 278, 279, 331, 333,467; People v. Dumar, 106 N. Y. 502; People v. O’Donnell, 15 N. Y. S. R. 141; People v. Upton, 38 Hun, 110; People v. Rose, 39 N. Y. S. R. 292 ; People v. Tower, 135 N. Y. 457.) Even though the indictment was sufficient and proper in form the judgment of conviction cannot stand for the reasons that the evidence introduced on the part of the People failed-to establish the commission of the crime charged in the indictment, and that serious and fatal errors were made to the prejudice of the defendant in the conduct of the trial by the admission of improper and incompetent testimony. (Penal Code, § 672.) The prosecution wholly failed to prove the main fact essential to the establishment of the crime; namely, that the items of the bill alleged in the indictment to be false were false in a material respect. (L. 1826, ch. 62; L. 1892, ch. 686, §§ 230, 232; Code Crim. Pro. § 773; 2 R. S. [4th ed.] 925.) The prosecution wholly failed to prove another fact essential to the establishment of the crime — namely, that the defendant presented the bill or claim set forth in the indictment and referred to therein for services in holding imprests. (People v. McLaughlin, 150 N. Y. 365 ; People v. McKane, 143 N. Y. 455 ; Penal Code, § 29 ; White v. Ambler, 8 N. Y. 170; Weisser v. Denison, 10 N. Y. 68; Welsh v. German-American Bank, 73 N. Y. 424; Frank v. Chemical National Bank, 84 N. Y. 209; Dykman v. Northbridge, 80 Hun, 258 ; O'Reilly v. People, 86 N. Y. 154.) The prosecution wholly failed to establish that the bill or claim presented was false, in that it contained the items alleged in the indictment . to be false. (Abbott’s Crim. Pr. § 739; People v. Severance, 67 Hun, 182.) The prosecution must show not only that the bill was a bill of items, because the form of the indictment is that it was a bill which contained false items, but they must also show that the defendant had knowledge of the falsity of the items contained in it. (Penal Code, § 718.) The People wholly failed to prove another fact essential to the maintenance of this indictment, namely, that the bill was presented to some one authorized to audit the claim. (People v. Gleason, 75 Hun, 572; L. 1888, ch. 583, § 1; L. 1895, ch. 954, § 4; L. 1896, ch. 753.) The court erred in admitting in evidence against the objection and exception of the defendant the forty-nine papers alleged to be the records of inquisitions held by the defendant in the forty-nine eases attacked upon the trial. (Davis v. Gallagher, 124 N. Y. 487; Rousseau v. Bleau, 60 Hun, 259; McCabe v. D. D., E. B. & B. R. R. Co., 28 N. Y. S. R. 879 ; Boyd v. U. S., 116 U. S. 616; Couselman v. Hitchcock, 142 U. S. 547; Entick v. Carrington, 19 How. St. Tr. 1029; Code Crim. Pro. § 778 ; People ex rel. v. Gallup, 30 Hun, 501; L. 1858, ch. 124 ; L. 1862, ch. 446; People v. Peck, 138 N. Y. 386.) The court erred in permitting evidence of an expert in handwriting, to the effect that the signatures to the inquisitions received in evidence, which purported to be signatures of the jurors, were not the genuine signatures of the persons named as such jurors. (People v. Spooner, 1 Den. 343; Van Wyck v. McIntosh, 14 N. Y. 439 ; Morey v. Safe Deposit Co., 2 J. & S. 154; Frank v. C. Nat. Bank, 5 J. & S. 26; Rudolph v. Loughlin, 48 N. Y. 456; Hynes v. McDermott, 82 N. Y. 49; Kowing v. Manly, 49 N. Y. 192; People v. Severance, 67 Hun, 182; Peck v. Callaghan, 95 N. Y. 73.) Hiram R. Steele for respondent. The indictment was sufficient. (Code Crim. Pro. § 542; Penal Code, § 11; People v. Spiegel, 143 N. Y. 112.) A transcript of the defendant’s account in the Manufacturers’ Trust Company’s ledger was properly received in evidence. (2 Phillips on Ev. 515 ; Langdon v. Mayor, etc., 133 N. Y. 637; Chryster v. Renois, 43 N. Y. 212; Code Crim. Pro. § 542; People v. Wayman, 128 N. Y. 585 ; People v. Buddensieck, 103 N. Y. 500; People v. Dimick, 107 N. Y. 34.) [MAJORITY — O’Brien, J.] O’Brien, J. In the year eighteen hundred and ninety-seven the defendant Coombs and oné George H. Nason were the coroners of the county of Kings, having been elected at the general election held two years previously. They were jointly indicted for a felony under section six hundred and seventy-two of the Penal Code. The charge in the indictment is that they knowingly, with intent to defraud the city of Brooklyn, presented for audit and allowance to the auditor charged with the duty of auditing accounts and claims against the city, a false and fraudulent bill containing false and fraudulent items claimed to be due them for official services. In this bill they made a claim against the city for fees in three hundred and twenty-five inquests held in the month of July, 1897. There were attached to the bill two lists of names of persons upon whose bodies the inquests purported to have been held, naming the day when and place where held. One of these lists purported to be the inquests held by the defendant Coombs, one hundred and sixty-two in number, and the other to be those held by Mason, one hundred and sixty-five in number. The fees allowed to a coroner in the county of Kings were fixed by a resolution of the board of supervisors in eighteen hundred and eighty-one at eight dollars and fifty cents for each inquest, including all charges and expenses. The bill was audited and paid. The defendant Coombs elected to be tried separately and was convicted. The judgment entered against him on the verdict has been affirmed at the Appellate Division. The principal questions in the case were questions of fact. It was, of course, incumbent upon the prosecution to show, to the satisfaction of the jury, that the defendant knowingly presented, or caused to be presented, a false and fraudulent bill for audit' to an officer authorized by law to audit and allow the same. The evidence to sustain the charge in this respect was simply overwhelming. It was shown that the defendant signed and swore to the bill and certified to the list of items attached thereto; that he filed with the health department of the city certificates of death corresponding to each of the alleged inquests appearing in the bill, and it was shown that at least forty-nine of these inquests were fictitious and fraudulent. It is quite unnecessary to go into the details of the proof produced at the trial to establish the charge. It has been very carefully and fairly analyzed and presented in the opinion of the learned court below, and we can add nothing to the force of the argument that follows from the statement of facts there found. It is but fair to say that no claim is made in this court by the learned counsel for the defendant that the proof produced at the trial upon the issues of fact was not entirely sufficient to. justify the verdict of the jury. The argument in support of the appeal is devoted entirely to errors of law which it is claimed appear upon the face of the record and which operated to the prejudice of the defendant at the trial. These questions have also been carefully examined in the court below, and they require very little discussion now. It is urged in the first place that the indictment is defective, in that it charges a crime committed by the two defendants jointly, but fails to state the negative fact that the items contained in the bill were false or fraudulent. The indictment does charge specifically that the several so-called inquests for which the defendant has made charges in the bill, or at least forty-nine of- them, were never held. But the contention of the learned counsel for the defendant seems to be that it was also necessary to allege that these forty-nine inquests were not held by his co-defendant. We think that the indictment contains a full statement of all the facts necessary to constitute the offense. It alleges the presentation of the bill, the fact that it was false and fraudulent, and known to be so by the defendant when he presented it. It alleges that various of the items contained in the bill for which the defendant charged were entirely fictitious to the knowledge of the defendant. This was all that was necessary under the provisions of the Code, which now prescribes the form and substance of the indictment. There was some controversy at the trial with respect to the true meaning and character of an inquest by a coroner in cases of death. It was contended by the learned counsel for the defendant that it is not necessary, in order to constitute an inquest within the meaning of the law, that a jury should be impanelled; that a mere inquiry by the coroner himself, or any one acting under his authority, with reference to the cause of death, constitutes an inquest vyithin the scope and meaning of the statute and the resolution of the board of supervisors prescribing the fees or compensation of coroners. We think the learned trial judge disposed of that question correctly. A coroner’s inquest has always meant and still means a judicial investigation into the cause of death by a coronei-, with the aid of a jury, and hence the fee for an. inquest could not properly be charged unless a jury had been impanelled to determine the cause of death. But the controversy concerning tlie nature and meaning of a coroner’s inquest was really eliminated from the case by the charge of the learned trial judge, since he instructed the jury that if the defendant presented the bill for audit, believing that he had a right to make the charges therein specified and acting honestly, there could be no conviction even though in law the charges were unauthorized. This obviously gave to the defendant the benefit of the contention now made in his behalf concerning the fees allowed by law to coroners in cases of inquests. He virtually told the jury that, even though the defendant had charged for inquests where no jury had been summoned or attended, yet if he acted honestly and believed he had a right under the statute to charge the fee after a mere personal inquiry, the defendant could not be convicted. Surely this was as favorable a view of the law on this subject as the defendant could ask. It is urged that the constitutional right of the defendant to be exempt from unreasonable search or seizure of his person or papers was violated at the trial. It appears that the defendant’s office was in the Court House in Brooklyn ; that he had one or more clerks to assist him in the performance of his duties; that one of these clerks prepared a series of false and fictitious papers designed to show that in each case where a charge was made for an inquest on the bill in question, an inquest with a jury had actually been held. These false vouchers were made out with regard to every necessary detail. On their face it appeared that in every case where a charge for fees had been made in the bill, a jury had been impanelled, witnesses sworn, and a verdict rendered and certified by the defendant. They were in form a compliance with the statute, which requires that in every case of a coroner’s inquest the record of the proceeding and the verdict shall be made up and filed with the county clerk. These false papers had, of course, never been filed, but were retained in the defendant’s office, as the evidence tended to show, for the purpose of filing at some future time. They were still in the office more than a month after the false and fraudulent bill in question had been presented and audited. The district attorney subpoenaed the clerk to produce the inquests held during the month of July, 1897, the period covered by the indictment, and in response to this subpoena they were all produced by the clerk, and in this way came into the possession of the district attorney. They were produced at the trial, offered in evidence and received under objection and exception. The .contention of the learned counsel for the defendant is, that these were the defendant’s private papers, and that their production at the trial by the People, under the circumstances stated, was in substance á violation of the defendant’s constitutional rights. We think there was no search, no seizure, or a violation of any right secured to the defendant by the Constitution or by law. The papers were in a public office, in the custody of a clerk who was paid by the city. On their face they were public records and intended to be used as such. The district attorney could not know when he required their production under the subpoena that they were false or fictitious, and, even if he did, it cannot be said that a public officer is privileged to retain in a public office a fraudulent record made for the purpose of concealing a fraudulent claim for fees. The subpoena did not call for any private papers; only for public documents. The papers in question were' produced in that character, and had they been genuine would have constituted evidence in favor of the defendant. The defendant was not in this way compelled to give evidence against himself within the meaning of the, constitutional provision on that subject. A party on trial for making or uttering counterfeit money may always be confronted at the trial with the work of his own hands, and it has never, so far as I can learn, been supposed that this would be a violation of the constitutional right, exempting a citizen from unreasonable search or seizure or that it was compelling him to be a witness against himself. It appears that the bill in question when audited was presented to the comptroller, who drew a warrant upon the treasurer for its payment. The treasurer paid it by a check upon a bank in which public funds had been deposited. The check was paid and the proceeds credited in equal sums to the defendants, and the defendant drew checks against this deposit. On the trial the district attorney produced and put in evidence the books of the bank containing the defendant’s account and showing a small balance in his favor after these transactions. The books were received under objection and exception from the defendant’s counsel. The learned court below concedes that this piece of testimony was technically inadmissible, and we will assume that it was. It is difficult, however, to see what effect it could have had upon the case one way or the other. The fraudulent bill described in the indictment was presented to the auditor by the defendant’s clerk, and since it could not be shown that he personally presented the bill, it was competent to show that he had received the proceeds. But that fact was sufficiently established by the proof which showed the audit, the warrant of the comptroller upon the treasurer for the payment, the check of the treasurer upon the bank to the joint order of the two defendants, the payment of that check and the deposit of the proceeds to their credit. The books of the • bank could have added nothing to the force or effect of this proof, and it is impossible to conceive how the defendant could have been prejudiced by the evidence. The ruling, therefore, whether right or wrong, comes fairly within the provisions of section five hundred and forty-two of the Code of Criminal Procedure, which requires us to disregard technical errors or defects, or exceptions which do not affect the substantial rights of the parties. We think the case was correctly disposed of in the court below and that the judgment must be affirméd. [DISSENT — Bartlett, J.] Bartlett, J. (dissenting). I think this judgment should be reversed for legal error. 1. The ledger of the trust company was improperly admitted in evidence. 2. iso legal audit of the bill was shown. The learned district attorney admitted in open court that in the absence of Maas he was compelled to prove payment to charge defendant. 3. Papers, alleged to be records of inquisitions held by the defendant, which were drawn nearly a month after the claim is charged to have been presented, and which were never tiled in the county clerk’s office, but remained in defendant’s private custody, were taken from his possession by subpoena duces tecum. These declarations were no part of the res gestae; they did not exist until long after the crime charged is alleged to have been consummated. They were incompetent evidence and obtained in violation of defendant’s rights as secured by the Constitution of .the United States (Amendment IV) and the Bill of Rights of this State (2 R. S. [Banks’ 9th ed.]' 1650, § II). The People in trying a defendant undertake, not only to establish his guilt, but to do so under the forms of law. All concur with O’Brien, J., for affirmance, except Bartlett, J., who files dissenting memorandum, and Martin, h, Who concurs with Bartlett, J., on first two grounds oí nib memorandum. Judgment of conviction affirmed.