author: Conway, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Benjamin Feldman, Appellant.
    Reargued February 24, 1949;
    decided April 14, 1949.

      Rudolph Stand and John McKim Minton for appellant.
    I. The trial court committed prejudicial error in refusing to grant defendant’s several requests to instruct the jury that there was no evidence that defendant administered poison to his wife on the night of December 7th and that the jury must not consider decedent’s alleged condition on December 7th as any evidence of defendant’s guilt. (People v. Molineux, 168 N. Y. 264; People v. Montgomery, 176 N. Y. 219; People v. Posner, 273 N. Y. 184; People v. Flynn, 290 N. Y. 220; Nudd v. Burrows, 91 U. S. 426; People v. Odell, 230 N. Y. 481; People v. Montesanto, 236 N. Y. 396; Andres v. United States, 333 U. S. 740; People v. Jenman, 296 N. Y. 269; People v. Van Aken, 217 N. Y. 532.) II. An atmosphere of ineradicable prejudice to defendant was created in presenting testimony concerning the events in the Feldman home on December 7, 1943, despite the express admission made by the prosecutor — in the absence of the jury — that the People did not contend that defendant administered poison to his wife on December 7, 1943, as charged in the indictment. The trial court should have excluded the evidence. (People v. Corey, 148 N. Y. 476; People v. Davey, 179 N. Y. 345.) III. The trial court erred in refusing to allow defense counsel on cross-examination of the People’s experts to show variances and conflicts between the opinions of the experts and that of recognized authorities. (Hastings v. Chrysler Corp., 273 App. Div. 292; Egan v. Dry Dock, East Broadway & Battery R. R. Co., 12 App. Div. 556; People v. Harris, 136 N. Y. 423; 2 Wharton on Criminal Evidence [11th ed.], § 1024; People v. Lustig, 206 N. Y. 162; Roberts v. New York Elevated R. R. Co., 128 N. Y. 455; Hoag v. Wright, 174 N. Y. 36.) IV. The book on toxicology was illegally admitted in evidence and extracts read therefrom to the jury on strychnine poisoning to the substantial prejudice of defendant. (People v. Waite, 220 N. Y. 714; Commonwealth v. Howard, 205 Mass. 128; People v. Zackowits, 254 N. Y. 192.)

      Miles F. McDonald, District Attorney (Solomon A. Klein of counsel), for respondent.
    I. Guilt was established beyond a reasonable doubt. II. The course of the trial and the court’s charge to the jury precluded a verdict upon the theory that defendant administered poison to his wife on the night of December 7th. (People v. Guardino, 286 N. Y. 132.) III. The trial court properly refused to permit defense counsel on cross-examination of the People’s experts to read from books whose authoritativeness had not been established. (Hastings v. Chrysler Corp., 273 App. Div. 292; People v. Riccardi, 285 N. Y. 21; Commonwealth v. Jordan, 207 Mass. 259.) IV. The book on toxicology borrowed by defendant a few months before his wife was poisoned was competent evidence. (Commonwealth v. Howard, 205 Mass. 128; People v. Benham, 160 N. Y. 402; Walsh v. People, 88 N. Y. 458.)
   Conway, J.

Proof of guilt of administering poison to another, resulting in death, is always difficult and the instant case constitutes no exception. Unless there be a confession or direct testimony by observers of the act, dependence must be upon circumstances attending the event and then the question, in a capital case, which is presented to us for our consideration is whether the guilt of the accused has been established to a moral certainty by circumstances which not only point to the guilt of the accused but are inconsistent with his innocence. (People v. Fitzgerald, 156 N. Y. 253, 258; People v. Razezicz, 206 N. Y. 249, 273; People v. May, 290 N. Y. 369.)

One of the difficulties here is that there is no direct proof that the defendant had anything to do with the strychnine which it is alleged was administered to his wife, the deceased. There was no proof that he ever purchased or possessed any. As a substitute for such proof it is pointed out that the defendant was a licensed employed pharmacist and thus had access to the poison. The bottle alleged to have contained it was discarded as refuse in the hospital (contrary to good practice) by the nurse in attendance on the deceased after her death. Thus no one can say with certainty that the bottle contained strychnine. The toxicologist, who was not a physician, testified to the presence of strychnine in the organs of the deceased, other than intestines, when he performed an autopsy and analyses some five months after burial. He also testified that in discovering it, all of the organs supplied him consisting of the brain, lungs, liver, spleen, heart, kidneys, blood, empty stomach, two pieces of rib' and a male foetus, were used up and that no material is left. There is thus in existence no tangible evidence which others may check and test which would show the presence or amount of strychnine at any time in the body of the deceased. The “ very few notes ” made on pieces of paper from time to time during the tests which took about a week, were destroyed after being typed by the toxicologist personally, after he had completed his examination and tests. We must proceed, of course, upon the assumption, for the purpose of this opinion, that the toxicologist made no error in estimate of quantity of strychnine in the body of deceased and the matter is adverted to only for the purpose of indicating that the entire proof of guilt here depends on oral testimony and not upon articles or objects which can now be touched or viewed. To put it succinctly, the opinion testimony revolved about the estimate of the total amount of strychnine in the entire body, exclusive of the gastro-intestinal tract and exclusive of the urine ” and was calculated upon a body weight of 132 pounds or approximately 60 kilos ”. Moreover, the stomach showed too small a trace of strychnine to estimate it. The case against the defendant hung upon the correctness of the estimate and calculation plus the opinion testimony. It is rare when a charge in a capital case may depend upon such an estimate ” and conviction should follow only upon the clearest and unconfused proof.

In addition to the toxicologist, four experts or opinion witnesses were called upon to give testimony. No one of the five had seen Mrs. Feldman in life. The doctors who had seen and attended her at home on December 7th and in the hospital on December 8th, before her death in the early morning hours of December 9th, diagnosed her case as one of tetany accompanying pregnancy. That indicated a calcium deficiency. The five opinion witnesses called upon the trial all agreed that on December 7th, the deceased had ingested strychnine. There is no contention by the People that the accused had anything to do with that. The two opinion witnesses for the defendant gave it as their opinion that the deceased died from the December 7th ingestion. The three opinion witnesses called by the People gave it as their opinion that she did not, but died from the ingestion of strychnine in the early hours of December 9th at the hospital. There was no strychnine found at either hospital or home. If the deceased died from the ingestion of strychnine in her home on December 7th, the accused was entitled to acquittal of the charge made. If she died from the ingestion of strychnine in the hospital on December 9th, the guilt of the accused depended on whether he had put strychnine in one of the bottles which he brought to the hospital and delivered to the nurse in attendance upon his wife and no part of the contents of which was analyzed because of the conduct of the nurse in disposing of it, to which reference has already been made.

In a case as close as this one, it is clear that it was essential for the trial court to make certain that no error in the admission or exclusion of evidence occurred and that there was no confusion as to facts. Concededly that was not an easy task. It is against the background outlined that we consider some of the facts and some of the rulings made.

The proof offered on this trial and on the first trial of the defendant was substantially the same except that an error in admission of evidence was not repeated. (See People v. Feldman, 296 N. Y. 127.) Moreover, any claim that the defendant was interested in another woman has been abandoned. The People did not engage two of the experts called on the first trial but substituted two others in their places. The People also called as a witness one Wilkoe who had not testified theretofore. His testimony will be discussed later.

On the night of December 7, 1943, the deceased was visited by her sister about nine o’clock. She was alone while her husband, the defendant, was on duty at the drugstore in which he was employed. Following her sister’s visit, she became ill and suffered convulsions. Her condition was diagnosed as a calcium deficiency by two physicians and she was removed before midnight to a hospital. The defendant had requested the first doctor called to engage a consultant. At the hospital Mrs. Feldman had a convulsion at nine o’clock in the morning of December 8th, and then improved. Shortly after noon of that day a third physician, a specialist in “ tetany and calcium metabolism ” was engaged at defendant’s insistence. The defendant on December 8th had suggested that it might be well to get a doctor from Johns-Hopkins Hospital but was told that the first two doctors consulted had selected for further consultation the specialist in tetany to whom reference has been made. That specialist reached the hospital at six o’clock in the evening and found Mrs. Feldman comfortable. The only troublesome symptom was that Mrs. Feldman complained of some tenderness in her feet. The doctor thought her condition was “ strongly suggestive of hypocalcemic tetany of pregnancy ” and finding the prognosis good he dictated a prescription consisting of 60 grains of calcium chloride in 150 c.c. of elixir lactate of pepsin ” to be administered every four hours. That prescription would be contained in six bottles. It was designed to build up calcium content of the blood. He also prescribed a patented medicine known as hytakerol to be given once a day. That consisted of highly concentrated vitamin D.

One of the doctors met defendant in the corridor, told him his wife might be suffering from tetany “ and if so the patient would be very much better by tomorrow, and from all indications she ought to do very well.” Defendant was then given the two prescriptions which had been written on a prescription pad. He was told that he could get the hytakerol at the pharmacy of one Jacoff and while there he might as well have the other prescription filled.

The defendant went to Jacoff’s pharmacy and obtained the hytakerol. He was driven there by the husband of his wife’s sister, one Kushner. Then Kushner drove him to the drugstore of Ruvinsky where the defendant was employed.. There defendant asked one Rothbaum to help him make up the prescription. The defendant prepared the bottles individually, weighing out each quantity prescribed separately and putting it into the bottle then under preparation. Ruvinsky and Rothbaum said that there was nothing unusual about the method of preparation. The largest graduate measure used in the store held but thirty-two ounces. To put thirty ounces as required by the prescription for the five-ounce bottles into the quart measure would render it difficult to stir the compound without spilling it. Rothbaum helped defendant get out the calcium chloride and lactate of pepsin. After the preparation of the first two bottles was completed, Rothbaum left for his home. Ruvinsky was busy waiting on customers but could see the defendant if he looked toward him. There was a cabinet of poisonous drugs near the defendant but no proof that he opened it. After preparing the six bottles containing the medicine he was driven with them, again by Kushner, at about ten-thirty in the evening to the hospital where he knocked on his wife’s door and placed them and the bottle of hytakerol in the hands of nurse Bierle. Shortly thereafter contents of one of the six bottles was administered to Mrs. Feldman. At two-thirty on the morning of December 9th, nurse Worrell, who had succeeded as the attending special nurse, administered the second bottle. One-half hour later the deceased was seized with a convulsion. She died one hour later at four o’clock. The nurse thereafter threw out all of the six bottles. The cause, of death certified was “ tetany with convulsions; cause unknown, associated with pregnancy ”.

The toxicologist who performed the autopsy testified that he estimated from his three analyses of specified grams of brain, liver and of a composite sample of heart, brain, liver and blood that there were 3.7 grains of strychnine in the body of deceased. As we have mentioned earlier, the experts for the defendant gave it as their opinion that death could have been caused by “ a quantity of strychnine ingested by her twenty-eight hours before that the medication administered in the hospital would have tended to postpone death by delaying convulsions and stopping or slowing down intestinal movements. The experts for the People said that that was impossible; that the deceased must have ingested less than a lethal dose on December 7th and must have practically eliminated it from her system; that death was caused by the ingestion of strychnine at two-thirty on the morning of December 9th. Thus the finding of guilt depended on which opinion witnesses the jury believed. The defendant’s experts gave it as their opinion that Mrs. Feldman ingested strychnine once — on the 7th day of December. The People’s experts gave it as their opinion that she ingested strychnine twice — once on the 7th and again on the 9th. All that was opinion based in the final analysis on the testimony of the toxicologist that on autopsy he found strychnine in the organs of the deceased.

If there was but one ingestion instead of two, the defendant must be acquitted of guilt. That is conceded. Thus the assistant district attorney stated to the court early in the trial after the jury had been excluded: I will also frankly state to the Court that it is not the contention of the People that the alleged strychnine poisoning of which the deceased was stricken on December 7th, 1943, was administered by or through any means on behalf of the defendant; that the People will claim on this trial that the strychnine poisoning of which this deceased died was administered to the deceased by and through the agency of the defendant only on the 9th day of December, 1943.”

We cannot .find that the jury was ever told that by the court although, as we shall see, the court was requested specifically to make that charge.

When the assistant district attorney opened his case to the jury he read the indictment in full. A part thereof is as follows: “ * * * on or about the 7th, 8th and 9th days of December, 1943, in the County of Kings, [the defendant] wilfully, feloniously and of malice aforethought poisoned Harriet Feldman, by giving and administering, and by causing to be given and administered, to her a quantity of poison, to wit, strychnine, and as a result of said poisoning the said Harriet Feldman died on December 9, 1943.”

The assistant district attorney, continuing his opening statement, was interrupted when he was about to state the events occurring on December 7th but the court ruled that it would allow him to make a statement ‘ ‘ regarding anything you expect to prove. ’ ’ The assistant district attorney then stated the events which occurred on December 7th during the evening when Mrs. Feldman was first seized with a convulsion and the events which transpired thereafter up to the time of her death. Among other things he said: “ We will show you, and it will be admitted by these doctors, that at that time and while they were treating her in the hospital they did not know what she was suffering from; they didn’t know that she had been poisoned, as we will prove later she was; they didn’t know that and they treated her for what they believed to be a condition superimposed by her pregnancy, the girl having been seven months pregnant at the time.” (Emphasis supplied.)

At the end of the People’s case, after the jury had been excluded, counsel moved to dismiss and asked the court if your Honor denies my motion to dismiss, I would like to have your Honor advise the jury, before the defense starts, that there is no scintilla of evidence supporting any claim that this defendant did administer or cause to be administered poison to his wife on December 7th, and that they must remove from their minds any suspicion that he is responsible for the condition his wife was found in at the hour and the date mentioned.” That, again, was not in the presence of the jury.

The court said: With respect to your first request, that I instruct the jury that they are to disregard the date of December 7th and December 8th, I tell you now, * * * if and when it becomes necessary to charge the jury with respect to the law applicable to the facts in this case, the Court will leave for the consideration of this jury only the occurrence at 2:30 o ’clock in the morning at the hospital.”

On the next page we find: Counsel for defendant: “ Now, I was going to say to your Honor on this matter of instructing the jury at this time as to the date of December 7th is because the indictment recites three days in which this defendant committed felonious, murderous acts, and I think the State having failed to sustain the allegation as to the 7th of December, that at this time it would be proper to instruct the jury on the question of December 7th.

‘ ‘ The Court: I do not agree with you on that proposition * # * .1 believe that the jury, being properly instructed as I have already outlined, will eminently fairly and fully meet with your views and that the jury will be properly instructed in respect to the facts that they must find, as I have already suggested. That request is denied and your motion is accordingly denied.”

Counsel for defendant excepted.

Again at the close of the entire case and again not in the presence of the jury, defendant’s counsel moved: I now ask the Court, at the close of both sides, to instruct the jury that the pleading in the indictment that charges that on or about the 7th and 8th and 9th days of December 1943, in the County of Kings, that the defendant wilfully, feloniously and of malice aforethought poisoned Harriet Feldman by giving and administering and by causing to be given and administered to her a quantity of poisons, to wit, strychnine and as a result of said poisoning said Harriet Feldman died on December 9,1943. In view of the failure of proof on the State’s case to offer any scintilla of evidence to sustain the allegation in the indictment touching December 7th, I ask your Honor now to rule that date from the consideration of the jury.” (Emphasis supplied.) The court said it would submit as to one date only, December 9, 1943. The court also said ‘ ‘ The jury will be instructed, in other words, to disregard and eliminate from their consideration any reference to the dates of December 7th and December 8th.” Decision was reserved, however, until the following morning. When court then reconvened, the court said to counsel in the absence of the jury, “ * * # yesterday you addressed yourself to the Court with respect to a direction to the jury that they disregard in their consideration the dates of December seventh and eighth. After due consideration, in view of the statement I made yesterday, specifically, that I shall instruct the jury to confine their consideration of the evidence in this case as applying only to the date of December 9,1943, that portion of your motion in regard to which only the Court reserved decision is accordingly denied. ’ ’ Exception to that denial was duly recorded.

We have mentioned these matters at length to indicate that there was no question as to what the point involved was. The jury heard none of these discussions and did not know the position of the assistant district attorney, which I have quoted. It will be remembered that in his opening, the assistant district attorney read the indictment with all three dates in it to the •jury.

Shortly after its commencement of its charge the court read the indictment to the jury, reading to them the allegation that the defendant did the acts complained of on the 7th, 8th and 9th days of December.

In the second next paragraph after that, the court told the jury that if the defendant did not cause the death on December 9th by giving and administering and causing to be given and administered strychnine at the Beth El Hospital, he must be acquitted. Then the next paragraph reads: You will take into consideration all of the facts in this case, and if you come to the conclusion that the defendant did not bring about the death of Harriet Feldman, by giving or causing to be given or administered the strychnine poison, as alleged in the indictment, that ends the case.” (Emphasis supplied.)

The court had just read the indictment which charged the acts on the 7th, 8th and 9th. In passing we may note that the court used the phrase “ as alleged in the indictment ” or its equivalent at three other places during his charge.

The nearest approach to telling the jury that it was not contended by the District Attorney that the defendant had anything to do with the administration of strychnine on December 7th is as follows:

1 It is the People’s contention in this case that Harriet Feldman came to her death through the administration of strychnine poison, and it is the burden of the prosecution to establish beyond a reasonable doubt and to your satisfaction that such strychnine poison was administered or caused to be administered through the criminal agency of the defendant. [No mention of time or place.] It is the contention of the defense that the strychnine poison which caused the death of Harriet Feldman was or could have been administered prior to her arrival at the hospital. This issue has been contested by the parties to this action. It is for you to determine whether the cause of death of Harriet Feldman was strychnine poison administered at the Beth El Hospital on December 9,1943, at 2:30 a.m. contained in a bottle of medicine delivered by the defendant and that the defendant caused the death.
£< I charge you that, in order to convict the defendant, you must be satisfied beyond a reasonable doubt that the strychnine poison from which Harriet Feldman died was administered to her at the Beth El Hospital at 2:30 a.m. on December 9, 1943, and that it was contained in a bottle delivered there by the defendant. If you entertain a reasonable doubt as to that, you must acquit the defendant.”

That did not tell the jury that the defendant was not charged with responsibility for the ingestion of strychnine on December 7th, and all the experts on both sides had told the jury that Mrs. Feldman had ingested strychnine on that day.

In an endeavor to make that clear, defendant’s counsel, at the conclusion of the charge, made the following requests (he made only two requests): “ Mr. Murray: Now, your Honor, I have a request to charge on December 7th. Now, I ask your Honor to charge this jury that there is absolutely no evidence that this defendant administered strychnine to the deceased on the night of December 7th, or caused it to be administered, and that the jury must not consider the deceased’s alleged condition on December 7th as any evidence of guilt on the part of the defendant, and in that respect may not even consider it.

“ The Court: I decline to charge in the language employed by you, Mr. Murray; but I do charge you gentlemen, you are restricted in your consideration of the evidence in this case, as applying to the guilt or the non-guilt of this defendant, to concern yourselves only with the occurrence, the alleged occurrence of December 9, 1943. In other words, you are not concerned with what happened on December 7th or December 8th. What you must be satisfied with by the proof in this case and beyond a reasonable doubt is that the defendant on December 9,1943, at 2:30 o ’clock in the morning, that date and no other date, at the hospital and no other place, administered to or caused to be administered the strychnine poison. If you have any reasonable doubt that the People have proved beyond a reasonable doubt that this defendant is guilty of having committed this crime at the Beth El Hospital on December 9, 1943, I charge you now you will acquit him.

Mr. Murray: Your Honor, I respectfully except to your Honor’s refusal to charge in the terms requested.

“ I have no further requests or exceptions.

“ The Court: You have an exception.”

That charge did not present the point to the jury upon which the court, the assistant district attorney and the counsel for the defendant had agreed in the absence of the jury, namely, that it was not contended that the defendant had anything to do with or was responsible in any way for the ingestion of strychnine by his wife on December 7th. It seems to us that it devaluated the testimony of the defendant’s own experts. They were testifying for the defendant that the strychnine ingested on December 7th could have caused Mrs. Feldman’s death on the 9th. They were doing that because, if the jury believed that her death was caused by the ingestion on the 7th, since the assistant district attorney made no contention that the defendant had anything to do with that, the defendant was entitled to an acquittal. When the assistant district attorney and the court did not make that clear to the jury but continued reading from the indictment to the jury that the defendant was charged with the administration of the poison on the 7th of December, the defendant’s own experts may have contributed by their testimony to his conviction. We think the defendant was entitled to have it made clear that as far as his guilt was concerned, Ms wife’s condition on December 7th was not to be considered as any evidence of guilt and that it was not claimed that he administered strychnine to her on the 7th. That request, wMch we have quoted, was declined in the language requested and other words were substituted which did not say it and did not make it clear.

This case could have been tried by beginning the proof at the point where Mrs. Feldman recovered from the convulsion from wMch she suffered at 9:00 o’clock on December 8th and her subsequent improvement on that day. That might have caused the defendant as a matter of trial procedure to go forward with evidence as to the events of December 7th or to leave them out of the case altogether. We tMnk the case could also have been tried as it was tried if the court and the assistant district attorney made it clear that there was no claim that the defendant was responsible for the events of December 7th. This latter was one matter that the court and the assistant district attorney did not make clear to the jury. The events of December 7th and December 8th could have been used for history or background only if it was made clear that that was their only relevancy in the case and to do that, the court should have gone out of its way to make it clear.

We say that because, except as history and background, the events of December 7th had no bearing upon or relationship to the guilt of the accused. That is the position which the assistant district attorney took when not in the presence of the jury. The reason for admission into evidence of the events of December 7th was stated by the assistant district attorney to be: ‘ ‘ I would like to state for the record, if the Court please, that this proof is offered for the purpose of showing the continuity of events. On the further ground that the hypothetical question to be put to the experts to be called by the People must of necessity include the alleged symptoms from which they will state that in their opinion the deceased died of strychnine poisoning.

“ I will also frankly state to the Court that it is not the contention of the People that the alleged strychnine poisoning of wMch the deceased was stricken on December 7th, 1943, was administered by or through any means on behalf of the defendant * * *.” The reasons given by the assistant district attorney were invalid ones. “ Continuity of events ” was no reason for the admission of the evidence to which objection had been made. Events to be admissible must have a clear and connected relation to the guilt of the accused and the assistant district attorney in the portion of the second paragraph which we have just quoted stated in so many words that there was no claim by him that the events of December 7th had reference to the guilt of the defendant. In the second place, the events of December 7th were not necessary for the hypothetical question to the experts for the People because each said that what happened on December 7th had no relation to Mrs. Feldman’s death. The People’s experts were called for the purpose of proving that the events of December 7th had no bearing on the cause of death. It was to testify to that that the District Attorney engaged them. It was only the defendant’s experts who said that the events of December 7th, which the assistant district attorney conceded had no bearing on the defendant’s guilt, could have caused Mrs. Feldman’s death.

Moreover, we think the judgment of conviction must be reversed because of the ruling of the court upon the right of the defendant to cross-examine the expert or opinion witnesses. When the toxicologist was being cross-examined, the following questions were asked of him:

Q. Now, you said that you got part of your information or knowledge about toxicology from literature; is that right? A. That’s right.
Q. Did you ever read Textbook of Physiology ’ by Howell? A. I’ve glanced at it.”

The court, without more, then ruled that if counsel wished to refer to any textbook or literature he must show it to the witness and that if the witness agreed with it and adopted it, the witness might then be questioned about it. The court said, “ * * * I shall not permit you to read from that book or any other book. If you wish to question this witness regarding any material, any writing, any dissertation or questions or statements contained in that book, you will first refer to the witness; let him read it and if the witness replies that he is in agreement with it or that he adopts that argument as his own, then I will allow you to make reference to it. Otherwise, not.”

During the same discussion the court repeated the ruling as follows: * * * you will first refer the book to this witness and if the witness tells the Court that he is in agreement with that statement or that writing and adopts that argument as his own, you may then question him regarding such statement or such argument. Otherwise I shall exclude it.”

In this State when an expert witness has given opinion testimony and on cross-examination has testified that a book called to his attention is recognized by him as an authority upon the subject as to which he has given an opinion, he may be confronted with a passage from the book which conflicts with the opinion he has expressed. This is permitted for the purpose of discrediting or weakening his testimony. (Egan v.. Dry Dock, East Broadway & Battery R. R. Co., 12 App. Div. 556; Hastings v. Chrysler Corp., 273 App. Div. 292.) In the Egan case (supra) it was said: * * * it has been the custom, in this State at least, to call the attention of an expert witness, upon cross-examination, to books upon the subject, and ask whether or not authors whom he admitted to be good authority had not expressed opinions different from that which was given by him upon the stand. The reference to books in such cases is not made for the purpose of making the statements in the books evidence before a jury, but solely for the purpose of ascertaining the weight to be given to the testimony of the witness.” (P. 571.)

There is another matter to which we shall refer since there must be another trial. The People called as a witness one August Wilkoc a teacher in the Brooklyn College of Pharmacy. He had not been a witness on the first trial. He testified that three or four months after he had loaned the defendant a book on toxicology written by Underhill and Koppanyi, he read an article in a newspaper in which the defendant’s name was mentioned. There was also mention in the article of the date of Mrs. Feldman’s death. That recalled to him the fact that the defendant had visited him and asked the witness to loan him his notes so that the defendant might take the State Board examination to become a pharmacist in Florida. The witness loaned "the defendant the book instead. A book was shown to Wilkoc which he said was an exact copy of the book he had loaned. That copy was then received in evidence over objection. The assistant district attorney read at length from the exhibit under the headings as to symptoms of strychnine poisoning, and from headings entitled: “ Fatal Dose”, “ Fatal Period ”, “ Post Mortem Appearances ” and “ Treatment of Nux Vomica Poisoning.”

Apparently the witness had communicated with the District Attorney subsequent to the first trial which occurred in February, 1946.

During his charge the Trial Judge said: “You may only consider on this point, if you find the defendant borrowed the book, whether he did so for the purpose of planning and acquiring knowledge with respect to strychnine poisoning, and you may consider that the borrowing of this book at the time it is alleged to have been given to the defendant, if not too remote to the subsequent death of the defendant’s wife by strychnine poisoning, was such conduct or action on the part of the defendant which you may consider on the question of intent, preparation, premeditation or motive to commit the offense charged.” (Emphasis supplied.)

A borrowing of the book by the defendant was not evidence of a motive for the commission of the crime by him. He was not a layman seeking a book on poisons. He was a duly licensed pharmacist who would not have been licensed unless he had studied toxicology. Moreover there is no proof that he did not borrow the book with the intention of taking an examination in Florida. Motive means the reason why a thing is done and a borrowing of the book by the defendant could not be found to be a reason why he may have killed his wife. Hence the quoted words of the charge were incorrect and must be taken to have unduly prejudiced the defendant with the jury, since the court had earlier told them that the presence or absence of motive was a potent or impelling circumstance which could ‘1 render important aid when, without it, the intent with which the alleged criminal act was committed would remain in doubt.”

The quoted words of the charge were erroneous for another reason, viz.: The Judge left it to the jury to say whether a borrowing of the book by the defendant was “ too remote to the subsequent death of the defendant’s wife by strychnine poisoning ”. Whether evidence is “ too remote ” — i.e., whether it is proximately relevant to some fact in issue — is a question for the court, though in essence that question is one of fact (see People v. Nitzberg, 287 N. Y. 183, 187). The fact of a borrowing of the book in question by the defendant was of merely slight, remote or conjectural significance and accordingly was inadmissible. Hence that fact should have been excluded by the Trial Judge.

The judgment of conviction should be reversed and-a new trial ordered.

Desmond, J.

(dissenting). This defendant has been convicted, by two juries, of murdering his wife, on circumstantial and opinion evidence as all secret poisoners must be, but on proof so strong as to leave no doubt of his guilt (see summary of the case in the two opinions on the former appeal — 296 N. Y. 127). Now there is to be another reversal and a third trial. Let us examine the alleged errors on which this second reversal is based:

1. As to the alleged failure to make clear to the jury that defendant was not being tried in connection with the events of December 7th: From the beginning of the trial to its end, the prosecution directed its efforts to establishing, and the defense to refuting, that defendant poisoned his wife on the early morning of December 9th, at Beth El Hospital, and at no other time or place. No juror of even minimal intelligence could follow the course of the trial and be left with any slightest idea that defendant was being tried for causing his wife’s December 7th attack, or that the testimony as to the December 7th occurrences could make out defendant’s guilt of the December 9th poisoning. The trial court read the indictment which alleged December 7th, 8th and 9th, as the dates of the murder, then he pointed out that the indictment was a mere accusation not evidence, then most carefully stated that the charge actually being tried was that defendant committed the murder on December 9th, at the hospital, and that, if “ that fact has not been established beyond a reasonable doubt, then you must disregard all other evidence in the case and give the defendant the benefit of the doubt and acquit him.” The story of what had happened on the 7th was, obviously, put into the record as a necessary background and base only, for the opinion testimony produced by both sides. If there were any dregs of doubt in any juror’s mind as to this, they were later forthrightly removed by the excerpts from the charge and the ruling, on a request to charge, both quoted in Judge Conway’s opinion. The second of those, delivered just a minute or two before the very end of the trial, told the jurors that they were ‘1 not concerned with what happened on December 7th or December 8th ” and that for conviction they must be satisfied beyond a reasonable doubt c 4 that the defendant on December 9,1943, at 2:30 o ’clock in the morning, that date and no other date, at the hospital and no other place, administered to or caused to be administered the strychnine poison.” And then, to nail that down and hammer it home, the court told the jurors: If you have any reasonable doubt that the People have proved beyond a reasonable doubt that this defendant is guilty of having committed this crime at the Beth El Hospital on December 9, 1943, I charge you now you will acquit him.” A plainer statement could not be devised, and the presumption in law and common sense is that the jury understood and followed it (People v. Barnes, 202 N. Y. 77, 88; People v. Pacelli, 251 N. Y. 66, 67). True, the Judge could have charged all of defendant’s requests in their exact language, and could have elaborated on the simple thought expressed in the quotation above, but he did not have to use counsel’s words or add them to his own (People v. Hughes, 137 N. Y. 29, 40). The County Judge’s plain language gave defendant full protection against any possible misconception by the jury as to the precise issue before it. It should be remarked that this alleged error was really before us on the first appeal, and an excerpt from the charge on the first trial, much like the one quoted above, was set out with apparent approval in the majority opinion of this court, on that first appeal (see 296 N. Y., supra, at p. 134).
2. As to the attempted cross-examination of the People’s experts, by defendant, by use of textbooks: Defendant’s experienced trial counsel at no time complied with the settled rule governing the method by which, on such cross-examination, the opinions of experts may be tested through the use of the literature on the subject. Nor did defendant’s counsel, at any time, have the books he wished to use marked for identification, or disclose to the trial court what those books were or what they said. In the absence of any showing as to what books counsel wanted to read from, or what he wanted to point to therein, how can we say that a substantial right of defendant was affected? To save the point for the Court of Appeals, it was necessary for defendant to do more (see People v. Rizzi, 297 N. Y. 874), than merely tell the trial court that he had a number of unidentified writings on his counsel table. True, the trial court misstated the technical rule as to procedure in confronting experts with opposing authorities, but section 542 of the Code Criminal Procedure, commands us to give judgment on this appeal, without regard to exceptions “ which do not affect the substantial rights of the parties.” Again, we note that this same alleged error was made on the first trial, also, and was argued to us in defendant’s brief on the first appeal, but not mentioned in this court’s opinion for reversal.
3. As to the testimony that defendant borroived a booh dealing with toxicology: The probative effect of this showing was probably slight, and any prejudicial effect was likewise slight. But if the jury believed that, a few weeks or months before his wife’s death from strychnine poisoning, defendant had gone to his former college professor to get detailed information about poisons, the jury could infer — adding it to the already overwhelming case against defendant — that this research was part of his preparations for murder.

Defendant has been fairly dealt with. I vote to affirm.

Lotjghran, Ch. J., Dye and Bromley, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Lewis and Ftjld, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Loughran, Ch. J.

license: Public Domain

text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Appellants.
    Argued April 5, 1949;
    decided April 20, 1949.

      Sherman C. Ward, George H. Kenny, Samuel R. Madison and Joseph J. Doran for appellants.
    I. Under section 23 of the Public Service Law, the Appellate Division was without jurisdiction to grant the stay, in the absence of findings, supported by evidence, that great and irreparable damage would otherwise result. The finding that a ‘ ‘ serious question ’ ’ is presented on the merits was not sufficient for that purpose. (Atlantic Coast Line v. Florida, 295 U. S. 301; Matter of Brooklyn Union Gas Co. v. Maltbie, 266 N. Y. 659; County Transp. Co. v. Maltbie, 273 App. Div. 437; Matter of New Rochelle Water Co. v. Maltbie, 249 App. Div. 378; Matter of Consolidated Edison Co. of N. Y. v. Maltbie, 193 Misc. 1015; Matter of New York Edison Co. v.
      Maltbie, 150 Misc. 200.) II. Under the recoupment provision of section 114, the commission is required to indemnify petitioner against any loss represented by the difference between the temporary rates and the proper, just and reasonable rates ultimately determined for the period from the effective date of the temporary rate order, even if that order were to be annulled upon review. (Prendergast v. New York Tel. Co., 262 U. S. 43; Matter of Bronx Gas & Elec. Co. v. Maltbie, 271 N. Y. 364; Staten Island Edison Corp. v. Maltbie, 267 App. Div. 72, 292 N. Y. 611.) III. If the temporary rates are ultimately determined to be lower than proper final rates for the same period, the commission is required to make up the deficiency to the company in fixing the final rates. (Matter of Bronx Gas & Elec. Co. v. Maltbie, 271 N. Y. 364; Staten Island Edison Corp. v. Maltbie, 267 App. Div. 72, 292 N. Y. 611; Staten Island Edison Corp. v. Maltbie, 270 App. Div. 55, 296 N. Y. 374.) IV. The commission would be required to comply with the recoupment provisions of section 114 even though the rate order were to be annulled. (Staten Island Edison Corp. v. Maltbie, 267 App. Div. 72, 292 N. Y. 611; County Transp. Co. v. Maltbie, 273 App. Div. 437; Matter of Consolidated Edison Co. of N. Y. v. Maltbie, 193 Misc. 1015.)

      Jacob H. Goetz, James P. Hill, Richard Joyce Smith and Cameron F. MacRae for petitioner-respondent.
    I. The order as granted by the Appellate Division contains the requisite specific findings required by subdivision 2 of section 23 of the Public Service Law to justify the stay. (Matter of Brooklyn Union Gas Co. v. Maltbie, 242 App. Div. 718, 266 N. Y. 659.) II. The facts found in the order as granted by the Appellate Division constitute great and irreparable damage within the meaning of those terms as used in subdivision 2 of section 23 of the Public Service Law. (Matter of Bronx Gas & Elec. Co. v. Maltbie, 271 N. Y. 364.) III. The provisions of section 114 do not protect the company against the loss represented by the difference between the existing rates legally in effect and the temporary rates imposed by an illegal order. (Purcell v. New York Central R. R. Co., 268 N. Y. 164; Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U. S. 516; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17; Burke v. Union Pacific R. R. Co., 226 N. Y. 534; People v. Monarch, 193 App. Div. 707.) IV. The finding that the temporary rates would impair the company’s ability to raise needed equity capital conforms in all respects to the requirements of subdivision 2 of section 23 of the statute. (Bluefield Water Works & Improvement Co. v. Public Service Comm., 262 U. S. 679; Federal Power Comm. v. Hope Natural Gas Co., 320 U. S. 591.)
   Loughran, Ch. J.

The parties to this article 78 proceeding are the Public Service Commission of the State and Consolidated Edison Company of New York, Inc., a gas and electric corporation subject to the Public Service Law. Pursuant to section 114 of that statute, the Commission on December 30, 1948, fixed temporary rates to be charged by the company for electric service supplied to its consumers. Enforcement of that order of the Commission has been stayed by an order of the Appellate Division which is now before us for review upon the following questions certified:

1. Does the order [for a stay] as granted contain the requisite specific findings required by subdivision 2 of section 23 of the Public Service Law to justify the stay?
“2. Do the facts found in the order as granted constitute great and irreparable damage within the meaning of those terms, as used in subdivision 2 of section 23 of the Public Service Law? ”

Section 23 requires that an order suspending an order of the Commission fixing rates “ shall contain a specific finding based upon evidence submitted to the court and identified by reference thereto, that great and irreparable damage would otherwise result to the petitioner and specifying the nature of the damage ” (subd. 2). The stay in question was granted by the Appellate Division, because in the judgment of that court there were serious questions as to whether the Commission in fixing the temporary rates had exceeded the powers conferred upon it by section 114 of the Public Service Law, and because the rate provisions of that section, as read by that court, “ were not designed and are not adequate to meet the situation herein presented where the loss, if the [temporary rate] order is void, may well reach astronomical figures.” (275 App. Div. 731, 732.)

The answer to these misgivings is to be found, we think, in the construction which this court put upon section 114 in Matter of Bronx Gas & Elec. Co.v. Maltbie (271 N. Y. 364, 375). Section 114, we there said, forces the Public Service Commission to consider the returns from the temporary rate and to establish the permanent rate, or the final rate, accordingly; that is, if the temporary rate has proved to be too low the final rate must make it up to the company. Over what time it is necessary to provide a rate sufficient to make up the loss, or to include the take-up, is a matter of adjustment, machinery and method. These matters are all in the hands of the Public Service Commission, which may increase or modify a rate to meet the circumstances at any time.”

The recoupment proviso- of section 114 is applicable to the temporary rates here in question. Hence, great and irreparable damage ” cannot result to the company from the temporary rate order, notwithstanding the Commission made its own estimate of the depreciation of the used and useful physical property of the company instead of accepting the figures shown on the company’s records. Hence, too, the magnitude of the sums that the company may be entitled to recapture does not demonstrate either the existence of great and irreparable damage ” or the inadequacy of the recoupment proviso of section 114 (see Staten Is. Edison Corp. v. Maltbie, 292 N. Y. 611).

The order should be reversed, with costs and the motion for a stay denied. The questions certified are answered in the negative.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order reversed, etc.


author: Lewis, J. Desmond, J.

text:
    In the Matter of the Arbitration between Western Union Telegraph Company, Respondent, and American Communications Association, C.I.O., Appellant. In the Matter of the Application of Western Union Telegraph Company, Respondent, to Vacate an Award of Arbitration. American Communications Association, C.I.O., Appellant.
    Argued February 24, 1949;
    decided April 20, 1949.

      Victor Rabinowits, Belle Seligman and Robert B. Seidman for appellant.
    I. The arbitrator did not exceed the powers conferred upon him. (Matter of Smith, 254 N. Y. 283; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; Horby Realty Corp. v. Yarmouth Land Corp., 270 App. Div. 696; Matter of Pine St. Realty Co. v. Coutroulos, 233 App. Div. 404, 258 N. Y. 609.) II,. The award may not be vacated on the ground that it sanctions violations of the Penal Law. (National Labor Relations Bd. v. Mackay Radio & Tel. Co., 304 U. S. 333; Church of Holy Trinity v. United States, 143 U. S. 457; United States v. Kirby, 7 Wall. [U. S.] 482; United States v. Katz, 271 U. S. 354; Woollcott v. Shubert, 217 N. Y. 212; Wass v. Stephens, 128 N. Y. 123; Commonwealth v. Hunt, 45 Mass. 111; Bossert v. Dhuy, 221 N. Y. 342; Paine Lumber Co. v. Neal, 244 U. S. 459; Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260; Goldfinger v. Feintuch, 276 N. Y. 281.)

      John H. Waters and William E. Seward for respondent.
    I. The arbitrator’s award was properly vacated, for it expressly gave sanction to the commission of acts contrary to public policy and made criminal by provisions of the Penal Law. (Penal Law, §§ 552,1423; Matter of Gale v. Hilts, 176 Misc. 277; People v. O’Brien, 111 N. Y. 1; Wass v. Stephens, 128 N. Y. 123; People ex rel. Western Union Tel. Co. v. Public Service Comm., 230 N. Y. 95; National Labor Relations Bd. v. Fansteel Metallurgical Corp., 306 U. S. 240; C. G. Conn, Ltd., v. National Labor Relations Bd., 108 F. 2d 390.) IT. The arbitrator’s award was properly vacated for the arbitrator plainly exceeded the powers granted to him in the contract. (Town of Putnam Valley v. Slutsky, 283 N. Y. 334.)
   Lewis, J.

Our inquiry upon this appeal goes to the legal sufficiency of an award made by an arbitrator named in a collective bargaining agreement between the appellant, American Communications Association, C.I.O.— to which reference will be made as the union — and the respondent, Western Union Telegraph Company.

At Special Term — where an application by the union for confirmation of the award was met by a cross motion by Western Union for vacatur — the award was confirmed and vacatur denied. Upon appeal by Western Union the Appellate Division by a divided court reversed the order of confirmation “ upon the law, the questions of fact not having been considered ’ ’. The present appeal by the union is taken as of right.

Since its merger in 1943 with the Postal Telegraph Cable Company Western Union has been the only landlines telegraph carrier operating in the United States. As a separate enterprise Western Union operates a cable division which is one of several competing international telegraph and radio carriers. In the operation of that single landlines system, and to insure a fair distribution of cable traffic among the several competing carriers handling international messages, Western Union is required by the Federal Communications Act to accept all outbound international communications offered to it by the public and to transmit the same in accord with a formula and regulations prescribed by the Federal Communications Commission. When such cable messages are received at Western Union offices on its vast web of lines within the United States the landlines division transmits them to its international distribution office in New York City where all outbound cablegrams are distributed to the international carriers in accord with quotas prescribed by the Federal Communications Commission. As to inbound cable messages which have their origin in foreign countries, each message is transmitted to the United States on the cable facilities of the international carrier with which it originates — including those facilities operated by Western Union’s cable division. When such an inbound cable message reaches this country it is taken over by Western Union’s landlines division for transmission to the addressee and is handled as a domestic telegram. It thus comes about that Western Union’s landlines division acts as a connecting carrier — within the United States — for its own separate cable division and for all other competing international carriers according to rates, routing and regulations promulgated by the Federal Communications Commission under the Federal Communications Act. By that act (U. S. Code, tit. 47, § 201) Western Union is required — to furnish such communication service upon reasonable request therefor ” (suhd. [a]). In payment for its service as a connecting carrier Western Union landlines division collects from its separate cable division and from competing international carriers according to tariffs established by the Federal Communications Commission and may not accord preferential treatment of any kind to any international carrier.

Important to our inquiry is the fact that the 7,000 employees of Western Union’s landlines division within the metropolitan area of New York have as their agent in matters relating to collective bargaining the appellant union’s Local No. 40. The employees of Western Union’s cable division — approximately 350 in number — are represented by the appellant union’s Local No. 11.

On June 18, 1947, Western Union entered into a collective bargaining agreement with the appellant union covering employees who are members of that union’s Local No. 40. Included in that agreement was the following provision: “ Section 31. Since the Company’s business is one of serving the public and it is the mutual desire to both the Company and the Union to provide uninterrupted and continuous public service, to prordote industrial peace and to provide for stable labor relations, the Company agrees that there shall be no lockouts and the Union agrees that there shall be no strikes or other stoppages of work during the life of this contract ” (emphasis supplied).

On January 2, 1948 — contemporaneously with other locals affiliated with the appellant union and representing employees of competing international cable companies — Local No. 11 called a strike of employees in Western Union’s cable division which strike prevailed until March 31,1948. At a “ special membership meeting ” held January 3, 1948, the day following the onset of the strike called by Local No. 11 and other locals, Local No. 40 — which was not on strike and which, as we have seen, comprised landlines employees of Western Union in the metropolitan area of New York — passed unanimously a formal resolution which provided in part “ we will take every action necessary to force the Mackay Radio, Commercial Cable, All America, and the Western Union Cable Companies to bargain in good faith with Locals 10, 11, and 15. To accomplish this purpose we will not handle struck traffic (emphasis supplied).

Although Local No. 40 did not strike, a substantial number of its members — employees of Western Union’s landlines division — complied with the resolution quoted in part above and refused to handle hot traffic ”, viz., cable messages which had been transmitted by or were destined for any of the international companies in which strikes prevailed. The refusal to handle ‘ hot traffic ’ ’— concededly practiced by such employees— interrupted and delayed the forwarding of . messages which Western Union was required by law to transmit, disarranged a system of work designed by Western Union to assure the quick dispatch of those messages, and made idle those employees who, although trained in the- technique of such work, refused to transmit messages which were within their prescribed duties in the performance of an ordinary day’s work. The arbitrator found that On January 9th the Company began advising employees who were refusing to handle hot traffic ’ that they would be suspended for four months if they did not perform all of their customary duties. Warnings which were ignored were followed by suspensions. On January 23rd the Union requested the instant arbitration and hearings were held on January 26th and 27th.”

By the award made following those hearings it was determined that section 31 of the collective bargaining agreement (quoted supra, p. 181), when read in the light of a “ custom of trade ” which the arbitrator found existed, viz., the refusal by nonstriking employees in the telegraph industry to handle 6 ‘ hot traffic ”, did not prohibit the union from directing employees not to handle such traffic or the employees from following; such directions. The award also directed Western Union to submit to the union for future action by the arbitrator a list of employees whom the company claimed had hidden or mutilated cablegrams which had come into their hands and whose suspension it claimed was justified by such misconduct. The company was further directed to reinstate, with back pay, all suspended employees whose names did not appear on such list. The award also provided — It is possible that some employees, because of their unwillingness to handle struck traffic, may not be occupied full time. If the Company [Western Union] sees fit, it may make a proportionate deduction from the salary of any such employee.”

Against this background we are to determine as a matter of law whether, as held by the Justice at Special Term, it was “ within [the arbitrator’s] power to construe and interpret the [collective bargaining] contract in the light of its language and the background of the industry in which the agreement was operating ”, or, as ruled by the Appellate Division, the award herein — ‘1 must be set aside on the ground that the arbitrator exceeded the powers conferred upon him, and, on the further ground that the controversy submitted to arbitration involved the right of telegraph employees to conduct themselves in a manner expressly forbidden by statute.” (274 App. Div. 754.)

We agree with the bases upon which rests the decision of the Appellate Division. The collective bargaining contract under which the arbitrator acted contains the following provision: Section 6. (a) In the event that an agreement cannot be reached between the Union and the Company with respect to the application or interpretation of this contract, or with respect to any grievances as defined in Section 5(h), it is agreed that such matters shall be submitted on the request of either party to Max Meyer, as impartial arbitrator * * *. The arbitrator shall not have the authority to alter or modify any of the express provisions of the contract, nor shall he have the power to make a ruling contrary to any agreement reached by the parties in the course of negotiations for this contract ” (emphasis supplied).

In view of the clearly expressed agreement by the parties that in the event of their disagreement with respect to the interpretation of their contract an arbitrator shall have no authority to modify its express provisions, and in view of the express provision in section 31 of the contract that “ there shall be no strikes or other stoppages of work during the life of this contract ”, the award before us, as we view it, amply demonstrates that the arbitrator exceeded the power granted to him (Civ. Prac. Act, § 1462, subd. 4).

Where, as in the contract which the arbitrator was here called upon to interpret, “ the language is unambiguous, the words plain and clear, conveying a distinct idea, there is no occasion to resort to other means of interpretation. Effect must be given to the intent as indicated by the language employed ” (Settle v. Van Evrea, 49 N. Y. 280, 281). Upon that subject this court has said that “ Evidence of custom is permitted for the purpose of qualifying the meaning of a contract where otherwise ambiguous and of providing for incidents not in contradiction of the fundamental provisions of the contract and of supplying omissions under certain circumstances which have occurred in the agreement of the parties. Evidence of it is not permitted for the purpose of contradicting the agreements which the parties have made or for the purpose of accomplishing an unfair or immoral construction of their contract ” (emphasis supplied). (Gravenhorst v. Zimmerman, 236 N. Y. 22, 33-34, and see Gearns v. Commercial Cable Co., 293 N. Y. 105, 109; Green v. Wachs, 254 N. Y. 437, 440-441.) That no provision in section 31 of the contract impressed the arbitrator as ambiguous is indicated by his statement — If we were to construe that language in vacuo we might well find that the Union’s direction to the employees not to handle ‘ hot traffic’ violated the letter if not the spirit of the clause.” Although the record is clear that “ stoppages of work ” did result from refusal by employees of Western Union’s landlines division to handle 6 hot traffic ’ ’, the arbitrator found that such refusal conformed to a practice generally prevalent in the telegraph industry. Thereupon, despite his own disclaimer of ambiguity in the contract, he concluded that the language of Section 31 must be read in the light of this practice and that so read it does not prohibit the Union from directing employees not to handle ‘ hot traffic ’ or the employees from following such directions.”

By that conclusion, as we view it, the arbitrator — entering a field of decision from which the parties had expressly excluded him — modified an express provision of the contract by which the union had agreed that “ there shall be no * * * stoppages of work during the life of this contract. ’ ’ As the language employed to express the union’s agreement leaves no doubt as to its meaning there is no occasion to resort to other means of, interpretation ” (Settle v. Van Evrea, supra, p. 281; and see Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133).

We know of no case where a court, in construing a contractual obligation expressed in language as clear as is the clause here in controversy, has found it necessary to employ extrinsic means to ascertain a party’s obligation thereunder. The lack of such authority may well be due to the early rule in Collender v. Dinsmore (55 N. Y. 200, 208-209): “ Custom and usage is resorted to only to ascertain and explain the meaning and intention of the parties to a contract when the same could not be ascertained without extrinsic evidence, but never to contravene the express stipulations; and if there is no' uncertainty as to the terms of a contract, usage cannot be proved to contradict or qualify its provisions. * * * Usage is sometimes admissible to add to or explain, but never to vary or contradict, either expressly or by implication, the terms of a written instrument, or the fair and legal import of a contract.”

The modification of the contract. here accomplished, being, as we believe, in excess of the arbitrator’s authority as limited by the parties, serves to vitiate the award (Civ. Prac. Act, § 1462, subd. 4).

We come then to the effect which certain provisions of the Penal Law have upon section 31 of the contract as interpretated by the arbitrator and by Special Term.

On this branch of the case we note at the outset the statement by Dean Wesley A. Sturges, in his text “ Commercial Arbitrations and Awards ” at page 202 (§ 61): “It may be stated generally that controverted claims which are not enforceable for illegality cannot be submitted to arbitration either at common law or under an arbitration statute.” (See, also, 6 C. J. S., Arbitration and Award, § 12; 3 Am. Jur., Arbitration and Award, § 11.)

By section 552 of the Penal Law it is provided:

1 ‘ A person who: * * *
“ 2. Being such clerk, operator, messenger or other employee, wilfully divulges to anyone but the persons for whom it was intended, the contents or the nature thereof of a telegraphic or telephonic message or dispatch intrusted to him for the transmission or delivery, or of which contents he may in any manner become possessed, or occupying such position in a telegraph office shall wilfully refuse or neglect duly to transmit or deliver messages received at such office * * * is punishable by a fine of not more than one thousand dollars or by imprisonment for not more than two years, or by both such fine and imprisonment ” (emphasis supplied).

A further penal provision is found in section 1423 of the Penal Law:

A person who wilfully or maliciously displaces, removes, injures, or destroys: * * *
“6. A line of telegraph or telephone * * * or who shall wilfully prevent, obstruct or delay, by any means or contrivance whatsoever, the sending,"transmission, conveyance or delivery, in this state of any authorized message, communication or report by or through any telegraph or telephone line, wire or cable, under the control of any telegraph or telephone company doing business in this state; or who shall aid, agree with, employ or conspire with any person or persons to unlawfully do, or permit or cause to be done, any of the acts hereinbefore mentioned * * *
“9. * * * is punishable by imprisonment for not more than two years ” (emphasis supplied).

No one has suggested that the collective bargaining agreement with which we are concerned is illegal as drawn. However, if, as the award before us and the decision by Special Term would indicate, we are warranted as a matter of law in reading section 31 of that contract in the light of a practice of the trade ” which permits a telegraph employee, without leaving his job, to refuse to forward a telegram or cablegram which comes to his hand in the ordinary course of business, then judicial sanction will be given to such conduct by an employee who occupying such position in a telegraph office shall wilfully refuse or neglect duly to transmit or deliver messages received at such office ”. That, however, is precisely the act which the Legislature by section 552 of the Penal Law (supra) has declared to be a crime and has made punishable by fine or imprisonment or both.

Likewise if we are to read section 31 of the contract in accord with the award herein and the decision by Special Term — which would permit a telegraph employee while remaining on his job in good standing to refuse to transmit a telegram or cablegram — then judicial sanction will be given to the acts of any such employee who “ shall wilfully prevent, obstruct or delay, by any means or contrivance whatsoever, the sending, transmission, conveyance or delivery, in this state of any authorized message * * * or who shall aid, agree with, employ or conspire with any person or persons to unlawfully do, or permit or cause to be done, any of the acts hereinbefore mentioned ”. That, however, is precisely the conduct which the Legislature by section 1423 of the Penal Law (supra) has declared to be a crime, punishable by imprisonment for not more than two years.

The penal statutes quoted above do not deprive an employee of his right to leave his position and to engage in a strike. Nor can it be said, as suggested by counsel for the union, that those statutes are intended to apply only to employees who have tampered with telegraphic messages for personal gain. The manifest purpose of the Legislature was to preserve for public use the service which a telegraph company is required to furnish (see Federal Communications Act of 1934, § 201, subd. [a]; § 202, subd. [a] ; U. S. Code, tit. 47, §§ 201, 202; Transportation Corporations Law, § 28; Public Service Law, § 91, subd. 3; cf. People ex rel. Western Union Tel. Co. v. Public Service Comm., 230 N. Y. 95, 100-101). To that end and in line with established public policy the Legislature chose penal measures as means to avoid disruption of the public service furnished by a telegraph company.

Obviously the function which Western Union’s landlines division is required by law to perform as the sole connecting carrier for the several international cable companies, is a service affected by a public interest. In that connection the fact is again noted that by section 31 of the collective bargaining agreement here invoked (quoted supra, p. 181), the parties thereto expressly agreed that “ the Company’s business is one of serving the public and it is the mutual desire to both the Company and the Union to provide uninterrupted and continuous public service ” (emphasis supplied). From those circumstances it follows that any construction of the terms of the contract in suit which tends to restrict the free and general use of telegraph lines and the public service those facilities afford is invalid (Central New York Tel. & Tel. Co..v. Averill, 199 N. Y. 128, 134, 135; and see Public Service Law, art. 5).

It is difficult to understand how Western Union can discharge those duties required of it by both Federal and State statutes if it is also required to retain in its service employees whose duty it is to transmit telegraph messages but who refuse to handle messages offered by the public which happen to be routed over facilities of a telegraph company where a strike prevails. To approve such a practice would to that extent oust the employer company from control of its own business and to that extent would prevent it from performing duties to the public required by law.

The award herein as confirmed by Special Term approves of action taken by the appellant union’s Local No. 40 pursuant to its resolution adopted January 3,1948. We are not disposed to approve that award which would permit Western Union’s landlines employees, while still occupying positions in that company’s offices, to determine — for reasons of their own and contrary to the company’s demand upon them for the maintenance of standard service — that messages routed to and from certain cable companies should not be transmitted. “ The law will not presume an agreement void as illegal or against public policy when it is capable of a construction which would make it consistent with the laws and valid ” (Curtis v. Gokey, 68 N. Y. 300, 304; Bigelow v. Benedict, 70 N. Y. 202, 204-205; Lorillard v. Clyde, 86 N. Y. 384, 387; Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437, 439; People ex rel. New York Central & Hudson Riv. R. R. Co. v. Walsh, 211 N. Y. 90, 100; Hobbs v. McLean, 117 U. S. 567, 576).

The order should be affirmed, with, costs.

Desmond, J.

(dissenting). These parties agreed (§ 6, subd. [a]) to send to the named arbitrator for determination, all disputes “ with respect to the application .or interpretation of this contract ”. A dispute arose between them as to the application or meaning of so much of section 31 of the agreement as provided that ‘ there shall be no strikes or other stoppages of work during the life of this contract. ’ ’ The union, in connection with a strike called by another union, had refused to handle struck traffic ”. The arbitrator, after hearings, held that, in view of the tradition and customs of the industry, which he felt he could not ignore and in the light of which the language “ stoppages of work ” had to be construed, the phrase did not prohibit employees refusing to handle “ hot ” or “ struck ” messages. That was a pure question of interpretation and application, and the very kind of question which the parties themselves had agreed should be decided by the arbitrator alone. Accordingly, his decision must stand (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199, 202). Whether we consider that decision to be “right ” or “ wrong ” is beside the point. ‘ ‘ The courts in this State have adhered with great steadiness to the general rule that awards will not be opened for errors of law or fact on the part of the arbitrator.” (Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392, 400.) “ The conclusiveness of awards is based upon the principle that the parties having chosen judges of their own and agreed to abide by their decision, they are bound by their agreement and compelled to perform the award.” (Matter of Wilkins, 169 N. Y. 494, 496, 499; see Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 300, 302; Matter of Morris White Fashions (Susquehanna Mills), 295 N. Y. 450, 456.) “ It is the duty of the court to enforce their agreement rather than to undertake itself to settle the dispute or to narrow the field of arbitral disputes.” (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, supra, p. 202.)

The second ground asserted for vacating the award is that it would, we are told, condone or legalize violations of sections 552 and 1423 of the Penal Law, which make it criminal for telegraph employees willfully to refuse or neglect to transmit or deliver messages, or willfully to prevent, obstruct or delay such transmission or delivery. To refuse confirmation on this ground is to hold, as matter of law, that any refusal by a telegraph company employee, for any reason whatever, to handle a message, is a crime, even though the message is forthwith handled by another employee, after the first employee’s refusal. I think that goes much too far. No decision anywhere upholds it.

If the arbitrator was within his powers in holding, as to the first point, that the employees’ refusal to handle the struck traffic was within the rights of their employment, then, of course, it could not possibly be that their action was criminal as matter of law.

The order of the Appellate Division should he reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division.

Conway, Dye and Bromley, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fuld, J., concur.

Order affirmed.

       Federal Communications Act of 1934; U. S. Code, tit. 47, § 222.

       The record indicates that “ struck traffic ” and “ hot traffic ” are synonymous phrases used by telegraph operators when referring to cablegrams or telegrams which, at some point in their transmission, have been handled by a company where a strike prevails.


author: Conway, J.

text:
    The People of the State of New York, Respondent, v. Eric Hass, Appellant.
    Submitted February 24, 1949;
    decided April 20, 1949.

      'Emanuel Bedfield for appellant.
    Section 21 of article III of the Rules and Regulations of the Department of Parks of the City of New York is unconstitutional on its face and as applied to defendant. (Commonwealth v. Gilfedder, 73 N. E. 2d 241; Saia v. New York, 334 U. S. 558; Hague v. C. I. O., 307 U. S. 496; Lovell v. Griffin, 303 U. S. 444; Martin v. Struthers, 319 U. S. 141; Jones v. Opelika, 319 U. S. 103; Jamison v. Texas, 318 U. S. 413; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88.)

      Miles F. McDonald, District Attorney (Soloriion A. Klein of counsel), for respondent.
    Section 21 of article I'll of the Rules and Regulations of the Department of Parks of the City of New York is constitutional. (People v. Nahman, 298 N. Y. 95; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77.)
   Conway, J.

This is an appeal by permission of a Judge of this court from an order of the Appellate Part of the Court of Special Sessions of the City of New York, which affirmed a judgment of conviction of the Magistrate’s Court of the City of New York convicting appellant of a violation of section 21 of article III of the Rules and Regulations of the Department of Parks of the City of New York and suspending sentence therefor.

The facts are not disputed. On the night of October 1, 1948, a police officer found a number of men erecting a stand at Eastern Parkway and Utica Avenue in the borough of Brooklyn, county of Kings, city and State of New York. After the stand had been erected the defendant mounted it and began to speak. The stand had. been erected on the mall which separates the center driveway and the commercial driveway of Eastern Parkway. That mall constitutes the area between the two driveways mentioned and is twenty-five or thirty feet wide. Upon it there are trees, a pedestrian walk and two rows of park benches facing each other with about twenty benches in each row. There is another mall, also running east and west and also between the main driveway and the commercial driveway which carries traffic in the opposite direction. That mall also has forty benches in two rows facing each other. Each bench seats about six people so that on the two malls separated by the center or main driveway there is room on the benches for approximately four hundred eighty people. The trees in the mall have ornamental fences around them and are dedicated to deceased veterans of the past two wars.

As the defendant began to conduct his meeting some fifty people gathered at the front of the stand. The defendant described himself as “ a propagandist for our political campaign ” and was espousing the candidacy of one Tigart of the Socialist Labor Party. The defendant said he was the editor of the “ ‘ Weekly People ’ ” the official newspaper of that party.

After the defendant had been speaking for five or six minutes the police officer approached and asked if he had a permit from the park department permitting him to conduct the meeting. He said he did riot and was thereupon served with the summons which lead to his conviction.

The defense then established that Eastern Parkway is a busy street upon which the traffic is heavy.

The only other witness called on either side was an assistant to the assistant borough director for the department of parks in Brooklyn. It was one of his duties to issue permits for meetings. He testified without contradiction that, for the location at which the defendant spoke, there never had been a denial of a permit when application was made for one unless someone else had already applied for and obtained a permit for that location for the same period. He said that this was one of the two places in the borough of Brooklyn which was considered by the park department to be a public forum or meeting place and at which it was felt that any type of ordinary meeting could be conducted. In fact, in his brief the defendant says ‘ ‘ This location is a place designated by the Park Department for public speaking ”.

The defendant however urges that section 21 of article III of the Bules and Begulations of the Department of Parks of the City of New York is unconstitutional and that therefore the order affirming the conviction must be reversed.

Section 21 reads as follows:

“ Section 21. Meetings, Exhibitions, Parades, Racing, etc.
No person shall erect any structures, stand or platform, hold any meeting, perform any ceremony, make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance, or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, rope-walking, or any other acrobatics, or show of any kind or nature; or run or race any horse, or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race be founded on any stake, bet or otherwise; in any park or upon any park street except by permit.
No parade, drill or manoeuver of any kind shall be conducted, nor shall any procession form for parade or proceed in any park or park street without a permit.”

Sanction for the foregoing regulation is found in sections 531, 532 and 534 of chapter 21 of the Charter of the City of New York. (People v. Nahman, 298 N. Y. 95.) In that case after discussing sections 531 and 534 we said (pp. 101-102): “ The limits of the jurisdiction so granted are indicated in section 532 of the same chapter 21 of the city charter by these words: 1 The commissioner shall have the power and it shall be his duty: * v"' * 3. To maintain the beauty and utility of all parks, square.', public places and playgrounds and other recreational properties, except those within the jurisdiction of the department of education, and to institute and execute all measures for the improvement thereof for ornamental purposes and for the beneficial uses of the people of the city.’ This last charter provision brings to light the real character and meaning of the regulation in question. No power to suppress the publication of facts or opinions is thereby conferred and the sole standard of official action thereby countenanced is the promotion of the beauty and utility of the public parks of the city — an objective which undoubtedly goes far to secure the safety, comfort and convenience of a population of more than eight million people. A permit process adapted to these charter purposes — if administered without discrimination — is, in our judgment, an entirely admissible procedure.” The regulation is in essence a nondiscriminatory provision having for its sole objective “ the safety, comfort and convenience of the people of the city in their appropriate uses of its public parks.” (Emphasis supplied. People v. Nahman, supra, p. 103.) In this case we have again the internal evidence supplied by the language of this long-existing regulation, referring as it does to speeches and harangues, to the exhibition and distribution of signs and placards, the exhibition of dramatic performances whether of tragedy, comedy, opera or ballet, the running of races by horses or other animals or vehicles, and the parading, drilling or manoeuvering without a permit. Moreover, here we have proof in addition that a permit has never been refused when applied for on this mall or island surrounded by heavy traffic unless it has been pre-empted by someone else. Certainly there is no restriction or attempted restriction of civil liberties disclosed.

The judgment should be affirmed. [See 299 N. Y. 681.]

Loughban, Ch. J., Lewis, Desmond, Dye, Fuld and Bbomley, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Thomas Daghita, Appellant.
    Argued February 21, 1949;
    decided April 20, 1949.

      Victor Levine for appellant.
    The trial court erred in permitting defendant’s wife to testify for the prosecution concerning defendant’s acts at their home. (People v. Woltering, 275 N. Y. 51; People v. Grossinger, 283 Mich. 625; Perry v. Randall, 83 Ind. 143.)

      Frederick B. Bryant, District Attorney, for respondent.
    There was no reversible error in permitting defendant’s wife to testify for the prosecution. (Smith v. State, 198 Ind. 156; State v. Dixson, 80 Mont. 181; State v. Snyder, 84 Wash. 485; Millspaugh v. Potter, 62 App. Div. 521; Weston v. Weston, 86 App. Div. 159; People v. Truck, 170 N. Y. 203.)
   Conway, J.

The defendant has appealed by permission of a

Judge of this court from the unanimous affirmance by the Appellate Division of a judgment of the County Court of Tompkins County convicting him of the crimes of grand larceny in the first degree and of criminally concealing and withholding stolen property.

The first count of the indictment charged that the defendant stole from Montgomery Ward & Co., Inc. (hereinafter referred to as Montgomery) in Ithaca, New York, property having a value of approximately $1,000. The second count charged him with the crime of criminally concealing and withholding stolen property in violation of section 1308 of the Penal Law of the State of New York in that he willfully and unlawfully concealed and withheld from Montgomery certain merchandise of the value of approximately $1,000 which he knew had been stolen from the company.

Defendant was a police officer in the city of Ithaca. One Borries was a janitor at the store of Montgomery located in the same city. He testified that one morning in the winter of 1946i-1947 the defendant came to his home about one o’clock to inform him that the door at the store was open. The defendant drove him to the store, he locked the door and the defendant drove him home again. A few days later, while Borries was in the basement, the defendant knocked on the front window of the store. He said that he told the defendant he could not come in and that no one was permitted in but defendant replied that he was an officer of the law and did come in and walk about the basement. In the summer of 1947, Borries said he met defendant while on his way to work. His hours for work began shortly after two o’clock in the morning. The defendant drove him to the store in his truck and Borries entered. After parking, the defendant knocked on the door and Borries let him in. The defendant went to the basement, took merchandise off the counters and put it in pasteboard boxes. He then put the boxes in his truck. Again, on another occasion, Borries met the defendant while the latter was driving a police car in uniform and was taken to work by him. That occurred six or seven times. Each time Borries went in through the front door and the defendant went to the parking space in the rear of the store before entering and appropriating merchandise.

The first question presented for our consideration arises by reason of the fact that the District Attorney called the wife of the defendant as a witness as a part of his direct case. When an attempt was made to examine her as to knowledge which was communicated to her by her observance of the defendant’s acts in their home, counsel objected upon the ground that a confidential communication between husband and wife was sought to be elicited. The court ruled that she might not testify to oral communications between herself and her husband but that she might testify to acts of his which she observed.” To that ruling exception was taken by defendant.

Mrs. Daghita then testified that she first observed the defendant bringing articles from Montgomery into their home from his own car or from the police car in August of 1947; that some of them were rugs, spreads and other merchandise displayed as exhibits in the courtroom; that at the same period he brought merchandise home three or four times a week at between four and five o ’clock in the morning; that such articles were contained in cardboard boxes and when he carried them in, he took them into the cellar, bringing them upstairs later during the day; that she made use of some nightdresses and of three children’s dresses; that in September the defendant brought home three jackets, two pillows and ten bath towels; that he brought home some paint and painted the house in August and September; that he brought home seat covers for the automobile; that some of the articles he stored in his bedroom and under his bed. She was then asked about each of four of her children by name and as to the stolen articles of clothing which each received from Montgomery and wore.

At common law, the wife of a prisoner was not a competent witness in a criminal action or proceeding against him. In 1867 (L. 1867, ch. 887, § 2) a wife was made a competent witness for or against her husband in civil actions and proceedings only. (Wilke v. People, 53 N. Y. 525.) In 1876 (L. 1876, ch. 182, § 2) a husband or wife was permitted to be examined as a witness on behalf of the other in all criminal trials. (People v. Hovey, 29 Hun 382, affd. 92 N. Y. 554.) Under that statute, she was not permitted to testify against her husband even though she were willing so to do. (People v. Houghton, 24 Hun 501; People v. Briggs, 60 How. Prac. 17 [1880].) The applicable rule is now embodied in section 2445 of the Penal Law (derived from Penal Code, § 715; L. 1881, ch. 676), which reads as follows: “ Husband or wife as witness. The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage. ’ The rule affecting husband and wife at common law had its foundation in the identity of their rights and concerns, the interest of civil society, and the sanctities of the marriage relation,” and it was enforced by the tiourts with much strictness. (People v. Houghton, supra, p. 501.) The object was “ that the most entire confidence may exist between them, and that there may be no apprehension that such confidence can, at any time, or in any event, be violated, so far, at least, as regards any testimony or disclosure in a court of justice.” (Chamberlain v. People, 23 N. Y. 85, 89.)

The three statutory modifications mentioned, and there has been no additional one in nearly seventy years, were in derogation of the common law, should be strictly construed and should be permitted to accomplish nothing beyond what was fairly intended. (People v. Houghton, supra.) Competency of husband and wife as witnesses has been effected and enlarged but the essential nature, meaning and implications of the clause a confidential communication, made by one to the other during their marriage ” has not been altered.

The applicable general rule which we have applied in this State and which has the support of the weight of authority throughout the United States, is that the term communication means more than mere oral communications or conversations between husband and wife. It includes knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital relation and which would not have been performed except for the confidence so existing. An act may communicate knowledge to the known observer and repose a confidence in him as clearly and unmistakably as if accompanying descriptive words were uttered. (People v. Woltering, 275 N. Y. 51, 57, 61; Smith v. State, 198 Ind. 156; 58 Am. Jur., Witnesses, § 385; 70 C. J., Witnesses, § 520.)

Certainly, the wife’s knowledge gained by observance of defendant’s conduct in bringing home stolen property in the early morning hours and storing it in different parts of the house and more particularly under his bed was the result of a confidential communication on his part. It cannot be supposed that the defendant would have so conducted himself except in reliance upon the free and unrestrained privacy of the marital relation and the socially desirable confidence which exists, and should exist, between husband and wife. The record makes plain that defendant made no effort to conceal or disguise his conduct at his home from his wife. He was, in a word, confiding in her the information disclosed by his conduct. “ Its nature, and the relation of the parties, forbade the thought of its being told to others, and the law stamped it with that seal of confidence which the parties in such a situation would feel no occasion to exact.” (Warner v. Press Pub. Co., 132 N. Y. 181,186.) Clearly, if defendant had told his wife that he was bringing home goods from Montgomery under the circumstances disclosed here, she could not have been compelled to testify as to such statement over his objection. (People v. Wood, 126 N. Y. 249, 271.) That being so, she may not be compelled to testify to conduct transpiring in her presence in the home which clearly, though not orally, communicated the same fact to her. Whether, if ever, accompanying exculpatory statements on the part of the actor would render his conduct admissible is dubious but at any rate is not presented here.

The judgment here may not be affirmed under section 542 of the Code of Criminal Procedure, since the error here was not technical but affected the substantial rights of the defendant. After Mrs. Daghita had been compelled to disclose the confidential communication made to her by her husband and outlined above, a verdict of guilt was assured to the prosecution which had called her as a witness.

The judgments of conviction should be reversed and a new trial ordered.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Bromley, JJ.* concur.

Judgments of conviction reversed, etc.