.
Arnold Rothstein and Inspector Dominick Henry
Supreme Court, Appellate Division, First Department, New York.
PEOPLE v. HENRY.
April 8, 1921.

Appeal from Extraordinary Trial Term, New York County.
Dominick Henry was convicted of perjury, and appeals. Reversed, and new trial
ordered.

Cross-examination by the Attorney General of a policeman, being tried for perjury, based on
his testimony before a grand jury that S., an assistant district attorney, had approached him
relative to arranging to get graft from gamblers, as to his acquaintance with police inspectors
who several years before, during another administration, were convicted of conspiracy and as
to his having read newspaper articles, from which the Attorney General read, as to corruption
in the police department, and as to friction between it and the district attorney's office, held
prejudicial, and to require a reversal; there being close issues of fact in the case.


Testimony of a single witness, unless supported by corroborating and independent
circumstances, is insufficient for conviction of perjury.

A witness corroborating testimony of state's witness on prosecution for perjury is to be
considered an interested witness, where his corroboration of defendant's testimony would
have been an admission of his own guilt.

William E. Murphy (John B. Stanchfield, of counsel, and John McKim Minton, Jr., and
Frank Morse Roosa, on the brief), for appellant.
Charles D. Newton, Atty. Gen. (William Rand, of counsel, and Nathan A. Smyth, on the
brief), for the People.

Argued before DOWLING, LAUGHLIN, SMITH, MERRELL and GREENBAUM, JJ.


GREENBAUM, J.

Defendant was tried under an indictment by the extraordinary grand jury upon the charge of
perjury. The indictment alleges that on March 30, 1920, there was pending before the grand
jury a certain investigation and inquiry for the purpose, among other things, of ascertaining
whether one James E. Smith, an assistant district attorney for the county of New York, had
asked, received, or agreed to receive a bribe, in violation of section 372 of the Penal Law
(Consol. Laws, c. 40), and----

'whether the said James E. Smith had willfully neglected to perform his duty as a public
officer, in violation of section 1841 or of section 1857 of the Penal Law, and whether any
person or persons had conspired or associated with him to violate any of the said actions of
the Penal Law.'

It further sets forth that the defendant was called, appeared, and was sworn before the grand
jury, and that defendant willfully and knowingly swore falsely to certain matters material to the
investigation and inquiry.

The false testimony charged in the indictment was in substance as follows: That pursuant to a
suggestion of one James J. Hines he was introduced to Assistant District Attorney Smith on
the evening of February 9, 1918, at the corner at 103d street and Amsterdam avenue; that
during the course of the conversation that followed Smith stated that he 'was going after the
Jew gamblers, but would not touch a hair of the head of any Christian who was running a
place'; that during a conversation on February 12, 1918, between defendant and Smith, the
latter said:

'That if there were any Christians who were gamblers that he, the said Dominick Henry, was
interested in, who wanted a little business in his district, it would be all right, so far as he,
Smith, was concerned, and that he would not interfere with them.' That on the evening of the
9th of March, 1918, defendant met Smith by appointment, and during the conversation that
ensued Smith spoke of an accasion 'when it was arranged with Lieut. Costigan, of the New
York City police force, and others, to trap Policeman Kerrigan taking graft money, he, the
said James E. Smith, had sent for the said Kerrigan and tipped him off, and that, when the
trap was ready to be sprung, Kerrigan was prepared to meet the situation, and that the
money was to be taken from one Frederick A. Hopler.'

Defendant also testified that by coincidence, while he and Smith were talking, a man stepped
up and spoke to Smith, and that he, Henry, was then introduced to him as Mr. Hopler, and
that he had never seen Hopler before or since; that on the 11th day of March, 1919, one Joe
Heyman informed defendant that----

'he, Heyman, formerly ran a gambling house for Assistant District Attorney James E. Smith in
105th street,' and asked the defendant if he would meet Smith's brother-in-law, one Dennis J.
Quinn, which defendant agreed to do at 5:30 p. m. March 11, 1919, at Seventy-Second
street and Broadway; that Heyman introduced defendant to Quinn at the appointed time and
place; that the latter stated that his brother-in-law, Smith, had sent him to meet defendant
'about the advisability of opening some gambling houses; that he was in a position to
guarantee that no raids would be made by the district attorney's office over the head of the
said Dominick Henry; that he, the said James E. Smith, was in close touch with the man
representing the Rockefeller Institute in the city, who was not averse to shutting his eyes to a
few things, providing a little change came his way; that the said James E. Smith was in a
position to do the said Dominick Henry many favors; that the district of the said Dominick
Henry was the best in the city; that we only live once, and that this administration was then in
its second year, and that in his opinion they stood no chance of being re-elected, and that
then was the time, if ever, to make a little change; that a few wheels and a few stiff games of
poker would never be noticed in a district like the Fourth; that the reporters could publish
only what they knew, and were only working for a salary, and that they could be seen by the
right party, and that the said James E. Smith knew them all, and could take care of that end
of the game.'

It thus appears that the charge of perjury is predicated upon the testimony of the defendant
concerning three conversations with Smith, which defendant testified he held with Smith on
February 9, February 12, and March 9, 1918, respectively, a conversation with one Joe
Heyman on March 11, 1918, and one on the same date with Dennis J. Quinn.

The defendant, at the time of his indictment and trial, was an inspector in the police
department. On January 23, *181 1918, he was designated as an 'acting inspector' and
assigned to duty in the Fourth district, the boundaries of which are Forty-Second street to
110th street, Eighth avenue and Central Park West to the Hudson river.

The proofs show that the incidents as to which the defendant testified before the grand jury
had, according to his testimony and that of Commissioner Enright, been substantially
embodied in oral reports made by him to the police commissioner shortly after they had taken
place, ostensibly in the course of his official duties, and that they were thereafter embodied in
the form of affidavits which were turned over to the commissioner. There is no evidence that
defendant disclosed the matters set forth in the affidavits to any person other than the police
commissioner, and defendant expressly testified upon the trial that no such disclosure was
ever made by him.

The testimony tendered by the people with respect to the various interviews testified to by
defendant was as follows:

As to the first of these, Hines denied that he had introduced the defendant to Smith, or that he
had ever met them together, and Smith denied both the asserted introduction and the meeting
at 103d street and Amsterdam avenue, and testified that the first time he ever met defendant
was in the latter part of February, 1918, at police headquarters in the office of the defendant.
As to the conversation, which defendant swore he had with Smith on Frburary 12, 1918, the
latter denied that he had any conversation with him at the time and place stated, or that he
had ever had any such conversation. There were no independent corroborative
circumstances established by the people in connection with the perjury charged, arising out of
the defendant's testimony as to the happenings of February 12, 1918. There was thus no
corroboration of Smith's testimony. It was a matter of Henry's oath against Smith's oath.

As to the asserted meeting between Henry and Smith on March 9, 1918, at the corner of
Sixth-Eighth street and Broadway, the latter denied that such a meeting or any such
conversation as defendant had testified to took place and he was corroborated in those
respects by Hopler, who testified that he never met Smith and never saw them together.
Hopler also testified that he had met defendant shortly after March 9, 1918, at the
Sixty-Eighth Street police station, and that about a week later he also met him at Sixty-Eighth
street and Broadway, and that Henry at that time asked him whether they were shooting
craps at the Chauffeurs' Club, of which the witness then was president. In this connection it
appears that Henry testified that he wished to correct his testimony as to Smith introducing
Hopler to him, and that the fact was that 'Hopler came up and spoke to me about members
of my command having stopped what he termed a boxing exhibition in the 'Chauffeurs' Club."
It also appears that defendant's original affidavit concerning this incident made no mention of
Smith's introduction of Hopler.

Henry's testimony as to meeting Smith on March 9th was corroborated by a witness,
Patrolman Dunn, who said that he was in the company of Henry and Smith, and heard the
conversation about Smith 'tipping off Kerrigan in the motorcycle graft matter.' Dunn also
testified that he was Hopler speaking to Henry and then going away, and that thereafter he,
Henry, and Smith went to the premises, 10 West Seventy-First street, occupied by a Mrs.
Haber. Defendant was also corroborated by five police officers, who testified that they saw
Henry, Smith, and Dunn together on the night of March 9, 1918, and one of them,
McLaughlin, also testified that he saw Hopler speak to Henry at the corner of Sixty-Eighth
street and Broadway. In addition to this the witness Hopler upon cross-examination admitted
that he knew Kerrigan; that he had had difficulties with him; that on two occasions he paid
Kerrigan money, when he stopped him and accused him of speeding.

It may also be pertinent to state in this connection that Smith admitted that some time in April
or early May, at about 9 o'clock p. m. he, defendant, and a police officer went to the
premises, 10 West Seventy-First street, and made an investigation and found no violation of
law there.
As to the defendant's testimony relative to Joe Heyman, and meeting Quinn, Heyman was not
produced as a witness, and the only witness for the people in support of the charge of perjury
was Smith's brother-in-law, Quinn, who, while admitting that he knew Heyman, testified that
Heyman never introduced Henry to him, and that he had never met Henry in his life until he
saw him in the grand jury room in March, 1920. There was thus no corroboration by any
witness or by independent circumstances of the charges of perjury in connection with the
Heyman and Quinn conversations.

[1] The law is well settled that there can be no conviction for the crime of perjury, where the
only evidence of the false swearing is that of the accusing witness, who if he had not testified,
would thereby have admitted his own guilt. People ex rel. Madigan v. Sturgis, 110 App. Div.
1, 96 N. Y. Supp. 1046. In People v. Doody, 72 App. Div. 372, 76 N. Y. Supp. 606, the
court said:

'Where oral evidence is relied upon to convict a person of perjury, it is necessary to produce
at least two witnesses, or one witness, supported by corroborating and independent
circumstances.'

Testing the value of the people's proof by the rule that corroboration of the testimony of a
single witness is essential, it is evident, in so far as the indictment charges perjury on February
12, 1918, and March 11, 1918, that there could not have been a conviction. Had the
defendant moved for a withdrawal of these charges from the consideration of the jury, the
motion should have been granted.

[2] As to the charges relating to February 9, 1918, we find corroboration of Smith's
testimony in that given by the witness Hines, who, however, must be considered as an
interested witness, since his corroboration of Henry's testimony would be an admission of his
own guilt.

This brings us to the consideration of the remaining charge in the indictment involving the
happenings on March 9, 1918. The denials of Smith are corroborated by Hopler's testimony,
which would, however, be considerably weakened, if the jury accepted the correction made
by defendant of his testimony wherein he stated that Hopler had been introduced to him by
Smith, and would have been still further weakened if the jury believed the testimony of
patrolmen Dunn and McLaughlin to the effect that they saw Hopler speak to Henry on the
occasion in question, taken in connection with Hopler's admissions that he knew Kerrigan,
and that he had met Henry at Sixty-Eighth street and Broadway on a date later than March
9th.

Besides, we find that Henry's testimony was corroborated by Dunn and five other policemen,
who, so far as the record shows, were all disinterested witnesses, and that Smith admitted
that he entered the premises, No. 10 West Seventy-First street with Henry and a police
officer, but on a date other than March 9th. We are not advised by the record whether the
jury found the defendant guilty of perjury in all the respects charged in the indictment, or only
in one or more.

The learned court charged the jury that they need not find that the defendant was not telling
'the truth in each of the details of these various conversations,' but if they----

'have a reasonable doubt as to whether a part of the conversation at a particular meeting took
place, but as to any of the facts of the meetings which are denied by Smith, if on any of those
meetings which are denied by Smith, you are satisfied beyond a reasonable doubt that they
did not occur, then the defendant would be guilty of perjury in swearing that they did occur.'

In view of this charge, and of the fact that the court did not charge as to the necessity of
corroborative proof on the part of the people, it may well be that the jury may have found the
defendant guilty of perjury on one or more of the charges in which there was no
corroboration whatsoever, and not upon the charges in which there was corroboration.

No request, however, seems to have been made on behalf of the defendant that the court
charge the jury as to the legal necessity of corroboration, nor was there any motion made that
the court withdraw from their consideration any of the charges which were not corroborated.

Whether or not this court would be warranted in the interest of justice to reverse this
judgment, notwithstanding the omission of counsel to raise the question of corroboration, we
need not now decide. In connection, however, with the matters which we are now about to
discuss, it is important to bear in mind the character of the proof which we have outlined, and
the legal situation in which the defendant was put by the failure to eliminate some of the
charges in the indictment from the consideration of the jury. It is also important to consider
the close issues of fact which were created by the sharp conflict of the testimony of interested
witnesses, as bearing upon the importance of a strict observance of *185 the rules of
evidence that no matters be injected into the case, excepting such as may be admissible upon
the questions of fact to be submitted to the jury.

The learned Attorney General commenced his cross-examination of the defendant by asking
him whether he was acquainted with certain police inspectors named, Dennis Sweeney, John
H. Murtha, James F. Thompson, and James F. Hussey, who had been indicted and
convicted of conspiracy in 1913 during the Whitman administration of the district attorney's
office. Objection was duly made by defendant's counsel to such examination, but the court
overruled the objections, and defendant excepted. There was not the slightest evidence in the
case that defendant had any connection whatsoever with the matters involved in the
conviction in May, 1913, of those inspectors, or indeed, that Assistant District Attorney
Smith had anything to do with their conviction.

This examination was followed by the Attorney General's reading from newspaper clippings
with big headlines, coupled with questions as to whether defendant had read these articles.
The following are illustrations of the character of these newspaper articles read before the
jury, and the questions put to the defendant concerning them, over defendant's objections and
exceptions:

'Q. Well did you read any newspaper articles with big headlines, for instance, to the effect
that a $200,000 levy had been made by gamblers for immunity, and that a high police official
had declared that a slush fund of $200,000 and probably more had been raised to guarantee
that gambling interests would be protected, did you read any such thing?'
Not the slightest attempt was made to show defendant's relation to any slush fund or to any
immunity of gambling interests.

'Q. Were you summoned before the grand jury in connection with the shooting of a gambler
named Arnold Rothstein, or sent for? Did you read in glaring headlines in the newspapers at
the time: 'Inspector Henry and Aides before Grand Jury To-Day--Swann Seeks Facts about
the Shooting of Detectives--Gambler Rothstein is Said to have been Taken to the Hospital'?'

'Q. Did you read that Assistant District Attorney James Smith before the Grand Jury with
reference to this Rothstein case had for several  hours questioned Capt. Charles H.
McKinner and four detectives of Inspector Henry's staff? Did you read that, or were you
otherwise informed of it? Q. Did you read that this grand jury was going to check bank
accounts of police officers in a wholesale inquiry; that it was ignoring Inspector Henry in the
investigation of police graft in his district? Did you read that? Q. Mr. Henry, were you aware
of the indictment by a grand jury of this county in proceedings conducted by District Attorney
Smith of Augustus Drum Porter, a deputy police commissioner, on indictment found this
year?'

The indictment last referred to was filed on March 20, 1920.

In the summation of the learned Attorney General, which is printed in the record on appeal,
he stated:

'What is the genesis of all this matter? How did this perjury come to be committed? Well,
there was friction between the district attorney's office and the police department, and they
got to call each other names, and it antedated this administration.'

Defendant's counsel objected to the statement of the Attorney General, on the ground that
there was no evidence of enmity between the police department and the district attorney's
office, and that, if there were, it is not chargeable against this defendant, Henry. The court, in
ruling upon the objection, said:

'So far as I understand, it is simply a statement made by the Attorney General, as to which
there is proof to support, that there was friction between the police department and the
district attorney's office, even in the administration of Governor Whitman.'

Defendant's counsel then said:

'What I mean is, if your honor please, that this friction between the police department, if there
is such a thing, and the district attorney's office, is not proper evidence against this defendant,
and therefore not the proper subject of comments by the Attorney General.
'The Court: I do not think that there is any impropriety in the summing up so far made.'

Shortly after, the Attorney General stated:

'Even under Whitman's administration four police inspectors had been convicted and sent to
prison for conspiracy--Sweeney, Murtha, and four or five others.'

Upon objection being made to the remarks just quoted, the Attorney General continued:

'Now, I did not bring that out for the purpose of having any of you believe that Dominick
Henry was in any way concerned with the conspiracies for which those inspectors were
convicted. That was not the object of the question at all. It was simply to show that, when the
district attorney's office is putting the inspectors in state prison, there is bound to be in the
police department a feeling of apprehension, and that the district attorney's office is not its
good friend.'

[3] Sufficient has been shown to demonstrate that the purpose of cross- examining the
defendant along the lines indicated was either to establish a motive for defendant's alleged
false utterances or to create an atmosphere of hostility against the police department, which
would reflect adversely upon the defendant and those of his witnesses who were police
officers.

Saving the Rothstein incident, which occurred in the defendant's inspection district, there was
no pretense that either Smith or defendant was in any way concerned with any of the other
matters in the newspapers as to which he was interrogated. To search for a personal motive
of defendant to injure Smith because of the existence of bad blood and friction between the
police department and the district attorney is travelling far afield. The natural effect of calling
attention to glaring and sensational headlines in the newspapers would be of inflame the minds
of the jury with the idea that the police department was a hotbed of corruption, and that the
defendant was a fair type of its personnel, and that he was inimical to the district attorney.
The tendency of such an examination, no matter what answers defendant might give to the
objectionable questions put to him, would unconsciously be to bias the jury against him, and
to lead them astray from the consideration of a criminal charge against him as an  individual
upon legal proofs upon the charges of perjury, and to treat the case as though the police
department was on trial.

It seems to us that the following criticisms by this court in People v. Saitta, 170 App. Div.
665, 667, 156 N. Y. Supp. 675, 676, are peculiarly appropriate to the cross-examination of
the defendant in the instant case:

'Second. The main ground upon which we are of opinion that this judgment should be
reversed is by reason of the cross-examination of the defendant himself. He was asked by the
district attorney as to his relations with other matters and as to misconduct connected
therewith, especially as to his relations with several parties by the name of Musica, whose
actions had become notorious in the criminal history of the city. He was shown to have been
the attorney for several of these parties, if not all of them, and it was shown that his client had
been imprisoned for a considerable period of time. It was true that all charges implied in the
questions asked him with reference to his own criminal misconduct were denied by him, but
the examination by the district attorney was so persistent as in itself to present before the jury
a distinct charge by the district attorney of irregular and criminal misconduct in connection
with his relations with his clients. Not only was this examination so persistently prosecuted by
the district attorney as to impress the jury with his belief of the defendant's guilt in his relations
with these parties, but the court itself joined with the district attorney in extensive cross-
examination of the defendant upon these several matters, giving force and impressiveness to
the implied charge which the cross-examination of the district attorney itself presented. This
was carried to such an extent as to leave this court with the impression that the defendant was
not convicted alone upon this charge of larceny, but in part at least upon other matters not
relevant to the issue and to which the defendant could make no answer, except that of his
own denial.'

In addition to what is said in the Saitta Case, supra, we would say that, aside from their utter
irrelevancy as evidence, it was highly improper to read items and headings from newspapers,
which were purely hearsay, as if they imported verity and were tantamount to admissible
evidence of the matters to which they related.

The judgment of conviction should be reversed, and a new trial ordered. Settle order on
notice. All concur.

N.Y.A.D. 1 Dept. 1921
PEOPLE v. HENRY
187 N.Y.S. 673, 39 N.Y.Crim.R. 157, 196 A.D. 177
END OF DOCUMENT