3. CRIMINAL LAW 318- EVIDENCE SUMPTION FROM FAILURE TO PRODUCE BOOKS OF ACCOUNT-STATUTE. The presumption of Penal Law, § 442, is yot conclusive, but may always be explained away, or the refusal to produce the books justified; if the statute had made the presumption conclusive, a presumption of law, and not of fact, it would have been unconstitutional." PRE- or ability to pay, made in writing and signed 4. CRIMINAL LAW 393(1) TESTIFYING AGAINST SELF-STATUTE. Penal Law, § 442, making purchaser's failure to produce books of account on request of seller of goods presumptive evidence that every pretense relating to purchaser's means or ability to pay contained in a written statement was false when made and known to the purchaser to be false, is not invalid as compelling a defendant to be a witness against himself. Hiscock, C. J., and Collin and Hogan, JJ., dissenting. * * * * that each and every pretense relating to the in said statement shall be presumptive evidence purchaser's means or ability to pay in said statement contained were false at the time of Appeal from Supreme Court, Appellate Di- making said statement and were known to the vision, First Department. Habeas corpus by the People, on the relation of David Woronoff and Bernard Edson, against Peter A. Mallon, Warden of the District Prison. From an order of the Special Term dismissing writ and remanding relators to the custody of defendant, relators appealed to the Appellate Division, which affirmed (166 App. Div. 840, 150 N. Y. Supp. 705), and relators appeal. Affirmed. H. & J. J. Lesser, of New York City (Edward Hymes, of New York City, of counsel), for appellants. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for respondent. CRANE, J. The relators were held upon a warrant issued out of the Magistrates' Court in the city of New York charging them with the crime of grand larceny by false pretenses under sections 442 and 917 of the Penal Law. Pending the hearing before the magistrate, a writ of habeas corpus was sued out to obtain the prisoners' discharge upon the ground that no crime was set forth in the information. purchaser to be false." The information, signed by F. Heinz Bleistein, a representative in America of the International Hide & Skin Company, states that he was requested, in November of 1911, by the relators, Woronoff and Edson, to sell them a bill of goods consisting of three bales of furs known as Chinese Thibet skins. He questioned the credit of the relators and asked for an individual financial statement, which they refused to give, stating that they but gave statements to their banks and the commercial agencies of Bradstreet & Co. and R. G. Dun & Co. They told Bleistein to consult the financial statements given to these agencies, representing them to contain a true and accurate condition of their finances. The seller consulted the statements made to the mercantile agencies, and, finding that Woronoff and Edson were perfectly good according to the figures therein given, sold them a bill of goods valued at $1,266.35. The following month the purchasers went into bankruptcy, and, after request in writing pursuant to the sections of the Penal Law never gave individual financial statements, above set forth, failed and refused to exhibit their books for inspection. Annexed to the information were copies of the financial statements referred to and received from This proceeding raises the constitutionality of section 442 of the Penal Law, and has been instituted for the purpose of having the courts pass upon the validity of this pro-Bradstreet & Co. and R. G. Dun & Co. vision. If section 442 be a proper enactment, then the information in this case sufficiently states a crime. If not, the prisoners must be discharged. Section 947 of the Penal Law, part of ar ticle 86, designated "Frauds and Cheats," reads as follows: "Sec. 947. Verbal false pretense not criminal. A purchase of property by means of a false pretense is not criminal, where the false pretense relates to the purchaser's means or ability to pay, unless the pretense is made in writing and signed by the party to be charged." Section 442, part of article 40, designated "Business and Trade," provides so far as material: "Whenever property shall be purchased by aid of a statement relating to the purchaser's means Woronoff and Edson, in these written statements, specified their business as manufacturers of furs at 80 University place, Manhattan, New York City, and itemized their assets showing a balance over liabilities of $22,827.63 on January 21, 1911. These words appear above their signatures: books and are true to our personal knowledge. We keep a cashbook, a ledger, a salesbook, and other books." "Above items and amounts are included in our All the facts, therefore, necessary to make out an offense and sufficient to give the magistrate jurisdiction to hold the relators for trial were stated in the information, unless section 442 be unconstitutional as claimed. The fault found with the section is that it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes creates a presumption, on failure to produce the books, that the financial statement was false, and known to be false. The creation of presumptions such as this is not new to legislation. In People v. Cannon, 139 N. Y. 32, 43, 34 N. E. 759, 762 (36 Am. St. Rep. 668), we find this statement: "It cannot be disputed that the courts of this and other states are committed to the general principle that even in criminal prosecutions the Legislature may with some limitations enact that when certain facts have been proved they shall be presumed prima facie evidence of the existence of the main fact in question. See cases cited in [Board v. Merchant] 103 N. Y. 143 [8 N. E. 484, 57 Am. Rep. 705] supra. The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact." This is the law applied in many cases. Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; Hawkins v. Bleakly, 243 U. S. 210, 213, 214, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Reitler v. Harris, 223 U. S. 437, 32 Sup. Ct. 248, 56 L. Ed. 497; Cooley, Const. Lim. (7th Ed.) 409, 524, 526. The power of the Legislature to change rules of evidence as they existed at the common law and to limit, change, and vary existing rules for the limitations of actions has been the subject of frequent consideration in the courts, and has been uniformly held not to be affected or restricted by the constitutional limitation prohibiting the taking of life, liberty, or property without due process of law. People v. Johnson, 185 N. Y. 219, 77 N. E. 1164. the United States and the act of Congress passed for its enforcement." 219 U. S. 238, 31 Sup. Ct. 150, 151, 55 L. Ed. 191. [1] Agreeing with this contention, the court considered it unnecessary to pass upon the questions arising under the Fourteenth Amendment, recognizing, however, in the following paragraph, the rule which we here reaffirm: "This court has frequently recognized the general power of every Legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own government. Fong Yue Ting v. United States, 149 U. S. 698, 749, 13 Sup. Ct. 1016, 37 In the exercise of this power L. Ed. 905. numerous statutes have been enacted providing that proof of one fact shall be prima facie eviIdence of the main fact in issue; and where the inference is not purely arbitrary, and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the violate the requirements of due process of law." issue, it has been held that such statutes do not [2] This power of the Legislature is not denied by the appellants, but it is insisted that the presumption raised by section 442 is unreasonable and has no fair relation to or natural connection with the main fact. With this we do not agree. The relators kept books-a cashbook, a ledger, salesbooks, and other books. In a statement to a mercantile agency given for the purpose of establishing their credit they said in writing that these books showed the cash in the bank, the accounts receivable, the merchandise, machinery, and fixtures in their establishments, and also their liabilities, and that the assets over liabilities on January 21, 1911, amounted to $22,827.63. In November of 1911, desiring to purchase a bill of goods, they referred the seller to this statement made to the mercantile agency, and said that it was true of their present financial condition. A month later they went into voluntary bankruptcy, and failed to pay any part of the bill purchased in November. Suppose the seller, with the statement in his possession, called upon the defendants and asked to see their books, and they refused to permit any The presumption declared unconstitutional in Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145, 55 L. Ed. 191, violated the Thirteenth Amendment to the United States Constitution, not the Fourteenth. The statute provided that any person who with intent to defraud his employer entered into a contract in writing for the performance of any service, and thereby obtained money, and with like intent, and without refunding the money, re-examination to be made, or suppose that upon fused to perform the service, was to be punished by a fine. The refusal or failure of any person who entered into such a contract to perform such service or refund such money was to be prima facie evidence of the intent to defraud his employer. "We cannot escape the conclusion," said the court, "that, although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional. * * "In the present case it is urged that the statute as amended, through the operation of the presumption for which it provides, violates the Thirteenth Amendment of the Constitution of a trial involving the truth of the financial statement given to the agency these purchasers failed to produce or account for their books; would there not be a natural inference to be drawn from such refusal and failure that the books were not in accordance with the statement and that the latter was false? This provision of the Penal Law is but a statement of a natural inference to be drawn from such facts. The presumption is not disconnected from the main facts; it is not arbitrary or unreasonable. It is the natural result to which the undisputed facts reasonably lead. The criminal law of our state attempts to meet the new devices and methods of committing crime and to stamp out and punish fraud and theft in its many disguises. It had be come a frequent occurrence for persons false- | given out to the world a copy of his books, ly pretending to be traders or merchants to the law affords him the opportunity to verify obtain large bills of goods and merchandise by his statement by his books; if he fails to do misrepresenting their finances and then fail, so, the presumption is that falsity exists. or go into bankruptcy. That the purchaser He may still prove his books and verify the knew his financial statements to be false and statement at any time or justify his refusal, intended to cheat was often difficult of proof. and thus overcome the presumption. The Knowledge and intent had to be gathered fact that his refusal to comply with the secfrom the circumstances. The criminal sel- tion casts upon him the explanation is not dom declared his intent, but rather posed as compelling him to be a witness. All prean honest, though unfortunate, trader. The sumptions arising from facts cast upon the upright man might be unable to meet his bills, defendant the burden of overcoming them. but he would ever be ready to show that his Thus one in possession of stolen goods imdealings were straightforward, and that his mediately after a larceny or a murder may books corresponded with his financial state- be presumed to be guilty of crime, and the ments. With these simple facts in mind, this burden of explanation be cast upon him. state enacted laws to meet the conditions People v. Galbo, 218 N. Y. 283, 112 N. E. 1041. By chapter 556 of the Laws of 1905 section And in some states this presumption is enact442 was enacted. By chapter 340 of the Laws ed into a statute. Espy v. State, 32 Tex. of 1912 section 1293b was added to the Penal 375; State v. Eubank, 33 Wash. 293, 74 Pac. Law, making it a misdemeanor to make a 378. The law which permits such presumpfalse statement through any agency with in- tions does not compel him to be a witness tent to have it relied upon. against himself. Such is this case. This presumption of a fact reasonably arising out of other established facts is entirely different from a law requiring a defendant to produce his books or papers for examination in a criminal investigation and making his refusal a crime. People ex rel. Ferguson v. Reardon, 197 N. Y. 236, 90 N. E. 829, 27 L. R. A. (N. S.) 141, 134 Am. St. Rep. 871. If this statute had made the presumption conclusive a presumption of law, and not of fact-it would have been unconstitutional. Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. Presumptions are constantly arising from the proof of facts which move juries or courts to a determination. Because these presumptions are not classified into statute law does not weaken their force in the particular case. "Presumptive evidence and the presumptions or proofs to which it gives rise are not indebted for their probative force to any rules of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience and observation, and such inferences are presumptions of facts." Justice v. Lang, 52 N. Y. 323, 329. For example, an adverse inference may be drawn from the party's failure to call a witness under his power and control (Adams v. Davidson, 10 N. Y. 309; People v. Hovey, 92 N. Y. 554), or by withholding or suppressing a written instrument which he ought to produce (Whitney v. Sterling, 14 Johns. 215; Wylde v. No. R. R. Co. of N. J., 53 N. Y. 156; Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786, 22 Am. St. Rep. 845), or from the suppression of evidence by the destruction of books (Armour v. Gaffey, 30 App. Div. 121, 51 N. Y. Supp. 846, affirmed 165 N. Y. 630, 59 N. E. 1118). [3] So in this case experience and the habits and customs of honest merchants and tradespeople would naturally lead to the conclusion that, if a purchaser refused to verify his financial statement by his books, something was crooked, and that he was dishonest. Section 442 of the Penal Law has merely codified this natural presumption. The presumption is not conclusive. It may always be explained away, or the refusal to produce the books justified. [4] It is said, however, that this section requires the defendant to produce his books, and thus compels him to be a witness against himself. The section does not compel the defendant to produce his books. Having voluntarily These conclusions are supported by People v. Adams, 176 N. Y. 351, 361, 68 N. E. 636, 639 (63 L. R. A. 406, 98 Am. St. Rep. 675). Referring to section 344b of the Penal Code, making possession of papers used in playing policy presumptive evidence of possession thereof knowingly and in violation of law, this court said, after quoting the above excerpt from People v. Cannon, supra: "The Legislature, in the section under consideration, has gone a step further, and prothan a public officer, of the various papers and vided that the possession by any person, other writings used in carrying on, promoting or playing the game commonly called 'policy,' is presumptive evidence of possession thereof knowingly and in violation of the provisions of section 344a. In other words, the Legislature has cast the burden of proof upon the person who has in his possession these incriminating him to rebut this statutory presumption. The papers. The fullest opportunity is afforded exercise of this power is clearly within constitutional limitations and calculated to aid the people in prosecuting persons engaged in this form of gambling." These statutory presumptions are scattered through our Penal Law, and it is rather late to question their validity. For instance, section 1898 of the Penal Law makes the possession by any person, other than a public officer, of any of the weapons specified in section 1897 presumptive evidence of possession with intent to use the same in violation of tion is that the books are knowingly false. It no more compels the defendant to produce his books than all the other presumptions above mentioned compel the defendant to take the witness stand to explain them away. It is always open to the defendant to explain away the presumption by showing, through other testimony than his own, the destruction or loss of his books, or any other fact justifying his refusal. law. Section 975 makes the possession of books containing any such entries. What is any papers used in a lottery presumptive the natural presumption? The statute says evidence of the possession with guilty knowl- that under such circumstances the presumpedge. Section 1746 of the Penal Law requires pharmacists and druggists to keep books which shall be open for inspection, and subdivision (j) thereof provides that every manufacturer of such substances (cocaine or its salts), pharmacists, and druggists shall keep an accurate record in a book kept for that purpose of all alkaloid cocaine disposed of by him, and the possession in the place designated in the record of an amount less than the difference between the total amount received by him and the amount shown by his record to have been disposed of shall be presumptive evidence of a sale of the amount of such substances not accounted for, in violation of law. The Conservation Law (Consol. Laws, c. 65) is full of presumptions. It gives the open seasons for birds, deer, and other animals. Section 181, as added by Laws 1912, c. 318, and amended by Laws 1914, c. 92, thereof provides as follows: "Possession of quadrupeds, birds or fish, or of parts thereof, during the time when the taking of the same in this state is prohibited, or when the possession of the same after the close of the open season is not permitted, shall be presumptive evidence that the same was unlawfully taken by the possessor." And section 182, as added by Laws 1912, c. 318, makes a violation of the law a misdemeanor. It is said that the case of People v. Gibson, 218 N. Y. 70, 112 N. E. 730, is a barrier to these conclusions. This case holds that the defendant cannot be compelled by subpœna duces tecum to produce his books and papers in court, and that therefore he cannot be requested in open court before the jury to produce them. Such action would be similar to subpoenaing the defendant to be a witness or asking him in open court to take the stand, but nothing in the section of the Code under discussion compels the defendant to be a witness against himself or to produce his books and papers. The presumption that his books are false arises naturally out of the other facts which must be proved, and the statute merely authorizes a conclusion to which reasonable men would arrive from these facts. So long as the presumption created by the statute arising out of these proved facts is a logical deduction from them, or is reasonable, and not arbitrary, the legislation is not unconstitutional. Chamberlayne on Evidence, vol. Section 393 of the Code of Criminal Procedure permits a defendant to testify in his own behalf, and in this respect modifies the law as it was prior to 1869. People v. Court-2, § 1119. ney, 94 N. Y. 490. "But," says the section, The protection afforded the defendants un"his neglect or refusal to testify does not der the principles enunciated in People v. create any presumption against him." I Gibson should not be extended beyond the know of nothing to prevent the Legislature facts of that case. It probably reached the from wiping out this last clause and thereby border line. The establishment of a fact permitting all the natural inferences and pre- should be by the same methods and evidence sumptions of fact that spring out of the fail-in all classes of trials unless direct and clear ure of the defendant to explain away dam-constitutional or legislative enactment provides otherwise. aging and inculpating testimony. And the same natural presumption would arise, but The order appealed from should be affor section 393, through the failure of the defendant to account for or produce his books when the evidence in the case indi cated them to be false. The statute in this case goes no further than to say that under the circumstances stated the natural presumptions shall follow. The relator in the present case says to the merchant: "I want a bill of goods; I have $20,000 to pay for them, and my books show my possession of this $20,000, and here is a written statement which I give you, being a copy of my books." The merchant goes for his money, and the relator not only pleads insolvency, but refuses to permit him to compare the given statement with the books or to show him the firmed. CHASE, CUDDEBACK, and CARDOZO, JJ., concur. HISCOCK, C. J., and COLLIN and HOGAN, JJ., Order affirmed. dissent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment. 2. UNITED STATES 11 NEW CONGRESSIONAL DISTRICTS-VACANCIES. Laws 1917, c. 797, dividing the state into congressional districts, applies to an election for filling a vacancy caused by the resignation of a Representative whose district at the time of his election was fixed by Laws 1911, c. 890. 3. UNITED STATES 14 - JURISDICTION QUALIFICATIONS OF CONGRESSIONAL REPRE Aug. 8, 1911, c. 5, 37 Stat. 13 (U. S. Comp. St. | United States. The boundaries of such dis1916, §§ 15-19), reapportioning the number of trict at that time were fixed and established Representatives, etc., is valid, although Laws 1911, c. 890, also redistricted the state imme- by chapter 890 of the Laws of 1911. On the diately following said congressional reapportion- 1st of January, 1918, he resigned and a vacancy was thereby created, which now exists. Intermediate his election and resignation the Legislature of the state of New York, by an act which took effect June 9, 1917, changed the boundaries of some of its congressional districts, and among others, the Seventh. Laws of 1917, c. 797. The governor of the state of New York, on the 23d of January, 1918, pursuant to the federal Constitution (article 1, §2, cl. 4) and section 292 of the Election Law (Laws of 1909, c. 22, as amended by Laws of 1911, c. 891) by proclamation duly issued, ordered that a special election be held on the 5th day of March, 1918, in the Seventh congressional district, to fill such vacancy. SENTATIVES. Congress is the sole judge of the qualifications of its members and its action cannot be controlled by the New York Court of Appeals. 4. ELECTIONS 45-CONGRESSIONAL REPRE SENTATIVES-EXECUTIVE DISCRETION. Whether and when a special election shall be held to fill a vacancy caused by the resignation of a congressional Representative involves a matter of executive discretion with which the courts cannot interfere. 5. UNITED STATES 11 - PROCLAMATION CONSTRUCTION. An executive proclamation, calling a special election to fill a vacancy in a specified congressional district, refers to the district as then fixed by Laws 1917, c. 797, and not to the district as it existed under Laws 1911, c. 890, when the resigning Representative was elected. Hogan and Crane, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second Department. The question presented by the appeal is whether the election thus called is to be held in the Seventh congressional district as it existed when Mr. Fitzgerald was elected or as it existed when the governor issued his proclamation. There is, as it seems to me, if the election is to be held at all, but one answer to the question. The federal Constitution provides that: "The House of Representatives shall be composed of members chosen every second year by the people of the several states." Article 1, § 2, cl. 1. The third clause of the same section, as amended by the Fourteenth Amendment, provides that: "Representatives shall be apportioned among the several states ** according to their respective numbers" excluding certain persons named. Application by the People of the State of New York at the relation of Joseph A. Fitzgerald against John R. Voorhis and others, constituting the Board of Elections of the City of New York in which Merton E. Lewis as Attorney General of the State of New York, and John S. Gaynor intervened. An order of the Special Term, denying the application, was unanimously affirmed on the merits and as matter of law by the Appellate Division (168 N. Y. Supp. 1124), and the applicant appeals by permission. Affirmed. The application was for an order restraining the board of elections from holding a special election in the Seventh congressional district, as fixed by chapter 797 of the Laws of 1917, to fill the vacancy caused by the res-ter 5 of the Sixty-Second Congress) reapporignation of John J. Fitzgerald, and for a peremptory writ of mandamus directing such board to hold the election in the Seventh congressional district as fixed by chapter 890 of the Laws of 1911. James D. Bell, of Brooklyn, for appellant. Alfred L. Becker, of Albany, for respondent Attorney General. Meier Steinbrink, of Brooklyn, for respondent John S. Gaynor. William B. Carswell, of New York City, for other respondents. And section 4, cl. 1, of the article provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.' Pursuant to these provisions, Congress, on the 8th of August, 1911, passed an act (chap tioning the number of representatives among the different states. That act provided that: "After the 3d day of March, 1913, the House of Representatives shall be composed of four hundred and thirty-three members, to be apportioned among the several states as follows: * New York forty-three. * Section 3 of the act provides: * "That in each state entitled under this apportionment to more than one representative, the representatives to the Sixty-Third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable, an equal number of inhabitants." MCLAUGHLIN, J. At the general election held November 7, 1916, John J. Fitzgerald [1-3] After the apportionment thus made it was elected a representative from the Sev- at once became and thereafter continued enth congressional district of the state of New to be the duty of the Legislature of the state York to the Sixty-Fifth Congress of the of New York to comply with the act by dî For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |