People v. . MolineuxPeople v. . Molineux
The general rule of evidence is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, is wholly excluded.
2. SAME—EXCEPTION TO RULE.
Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common
3. SAME—MOTIVE.
When evidence of extraneous crimes has been held competent upon the existence of motive, it must be either the specific motive, underlying the particular crime charged, or a motive common to all of the crimes sought to be proved.
4. INTENT.
While previous offenses of a similar character by the same person may be proved to show felonious intent, such testimony has no weight where it fails to throw any light upon the intent with which the subsequent crime was committed, or to support or strengthen the inferences as to intent which may be drawn from the evidence tending to show that defendant committed the subsequent crime.
5. SAME—MISTAKE OR ACCIDENT.
Where a rare, subtle and deadly poison was mixed with a harmless powder of common use and sent by mail at Christmas time to the victim, proof of a prior extraneous crime of similar character could not be necessary or proper to anticipate the impossible defense of accident or mistake.
6. SAME—COMMON PLAN OR SCHEME.
To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other.
7. SAME—IDENTITY.
The mere fact that two crimes are parallel as to the method and means employed in their execution does not serve to identify the defendant as the person guilty of the crime, unless his guilt of the latter crime may be inferred from its similarity to the former, and where there is no evidence showing that defendant committed the former crime, and that no other person could have committed the subsequent crime, such an inference is not justifiable.
8. SAME.
The declarations of a victim of a former poisoning, to his physician, that he received a box of medicinal powder claimed to have contained the poison used, through the mails, are incompetent upon the trial of the charge of the subsequent poisoning of another person by a similar poison, also received through the mails.
9. SAME—EVIDENCE AS TO HANDWRITING AT COMMON LAW.
While under the common law comparison of handwriting might be made between documents properly in evidence for other purposes, and the disputed writing, in order to determine whether the writer of the
10. SAME—DISPUTED WRITING UNDER THE STATUTES.
The “disputed writing” referred to by the statutes is any writing which one party upon a trial seeks to prove as the genuine handwriting of any person, and which is not admitted to be such, providing the writing is not inadmissible under other rules of evidence.
11. SAME—COMPARISON WITH REQUESTED WRITINGS.
Writings made by the accused at the request of a handwriting expert retained by the police authorities while the inquest was in progress upon a death by poisoning, and while defendant was suspected to his own knowledge of being the murderer and under subpoena to testify but not under arrest, are submissible as standards of comparison at the subsequent trial, with the handwriting upon a package containing poison which he is accused of having feloniously sent through the mails.
12. SAME—RULES AS TO STANDARDS OF COMPARISON.
The genuineness of writings which when “proved to the satisfaction of the court” may be compared with a disputed writing, may be established (1) by the concession by the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) or by witnesses who saw the standard written, or to whom, or in whose hearing, the person sought to be charged acknowledged the writing thereof; (3) or by witnesses whose familiarity with the handwriting of the person who is claimed to have written the standard enables them to testify to a belief as to its genuineness; (4) or by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.
13. SAME—RULE OF EVIDENCE IN CIVIL AND CRIMINAL CASES.
In civil cases the genuineness of writing for comparison with disputed writings must be established by a fair preponderance of the evidence, and in criminal cases beyond a reasonable doubt.
14. SAME—CONSTITUTIONAL LAW—N. Y. CONSTITUTION, ART. I, SEC. 11.
The statutes of 1880 and 1888, authorizing comparison of a disputed handwriting with any writing proved to the satisfaction of the court to be genuine are constitutional and are not in conflict with
15. SAME—RIGHTS OF WITNESSES AT INQUESTS.
If a person who testifies at an inquest does so simply as a witness, he has none of the rights or immunities of a party, and his testimony
16. SAME.
The fact that the district attorney, in his summing up to the coroner‘s jury, stated that he had from the beginning suspected the defendant of the commission of the crime, but had pretended to suspect C., so as to lull the defendant into a state of security, was not such a material error as to forbid the admission of evidence upon the trial of the defendant‘s testimony given before the coroner.
WERNER, J.: In various forms and in several separate counts the indictment herein charges the defendant with the crime of murder in the first degree. The substance of the charge is that defendant killed one Katharine J. Adams while engaged in the commission of a felony upon and against the body of one Harry S. Cornish. The agency charged to have been employed for this purpose is cyanide of mercury, a rare and deadly poison, which is said to have been sent through the mails by the defendant to said Cornish with the intent that it should be taken by the latter. Direct evidence was adduced upon the trial to establish the fact that Cornish received by mail a package which contained cyanide of mercury, and that he innocently administered to said Katharine J. Adams a portion of its contents, thereby causing her death. The legal questions which it is our duty to consider upon this appeal cannot be intelligently discussed without a clear understanding of the complicated facts and cir
The facts which bear immediately upon the death of Katharine J. Adams and its cause are as follows: On the morning of December 24, 1898, Cornish received through the mail a package in which was found a pale blue box containing a silver holder and a blue bottle bearing a “bromo seltzer” label and filled with a powder purporting to be “bromo seltzer.” The bottle fitted into the bottle holder. Accompanying these articles was a small envelope of the kind in general use for inclosing cards which are sent with gifts. There was no card in the envelope. Cornish, believing that some person had sent him a Christmas gift and finding no card, recovered the outside wrapper of the package, which had been thrown into the waste basket, and found written upon it the address “Mr. Harry Cornish, Knickerbocker Athletic Club, Madison Avenue and Forty-fifth St., New York City.” He cut, or tore, this address from the wrapper and placed it in his desk together with the envelope, the bottle and silver bottle holder. On the following day, December 25, 1898, Cornish, who was a member of the household of Katharine J. Adams, mentioned the receipt of these articles to the latter and her daughter, Mrs. Rodgers, and on the 27th of December, 1898, he took them home with him and exhibited them to the same persons. As a result of the conversation which ensued, Cornish presented the silver bottle holder to Mrs. Rodgers, who had other toilet articles resembling it in design. Cornish placed the “bromo seltzer” bottle on the dresser in his room and retired for the night. On the next morning, December 28, 1898, Cornish arose shortly before nine o‘clock and went to the door for his morning paper. In passing the kitchen door he observed Mrs. Adams with her
The logical and orderly narration of this grewsome tragedy naturally leads, next, to a consideration of the facts and circumstances which are relied upon by the prosecution to connect the defendant with the death of Mrs. Adams. We will first address ourselves to those which have no relation to handwriting or to the commission of any other crime than the killing of Mrs. Adams.
In 1898 the defendant was thirty-one years of age. He had not only a liberal general education, but sufficient knowledge in chemistry to be the superintendent in the business of Morris Hermann & Company, who were manufacturers of dry colors in Newark, N. J. He had been employed in this capacity since 1893, and before that had been in charge of colormaking for the firm of C. T. Raynolds & Company, of which his father was a member. He had studied chemistry for two years at Cooper Union. He had a good chemical library, and a well-equipped laboratory, which contained Prussian blue, chrome yellow, English vermilion, dry mercury, arsenic and other chemicals from which various poisons, including cyanide of mercury, could be produced. From these facts the prosecution argue that defendant had the knowledge, skill and means to produce the poison which killed Mrs. Adams.
Cornish was athletic director in the Knickerbocker Athletic Club in 1898, and had held this position since January, 1896. At that time defendant was a member of the club and of its house committee. In January, 1896, difficulties arose between the defendant and Cornish over the conduct of one French, an athletic member of the club. This was followed in April, 1897, by trouble over an amateur circus which was given under the auspices of the club. Molineux had charge of the arrangements, and complained because Cornish had ignored and disobeyed his instructions. Cornish had been superintendent of the club and manager of the club restaurant. Defendant complained that the restaurant and baths were not being properly conducted. Cornish‘s authority was thereafter reduced to the training of the club teams and the management of athletics. Then came the trouble over the “Weefers” letter written by Cornish in August, 1897, and in which the latter reflected upon Mr. Weeks, a director of another athletic club. The defendant, having come into possession of this letter, requested that the matter be brought to the attention of the house committee, and suggested that Cornish be reprimanded or discharged. This request was not complied with, and then,
At this point it will be observed that if the case had been tried upon the theory that the only crime which the defendant had committed was the killing of Mrs. Adams in the attempt to poison Cornish, the next and final step in the case of the prosecution would have been to prove the defendant‘s connection with the handwriting of the address upon the poison package. But, as a part of the theory or theories upon which the prosecution sought to connect the defendant with the killing of Mrs. Adams, evidence was offered and received to show that the defendant was responsible for the previous killing of one Henry C. Barnet, who came to his death at the Knickerbocker Athletic Club house on the 10th day of November, 1898.
The facts and circumstances upon this branch of the case, as established at the trial, which relate directly to the death of Barnet, are substantially as follows: Barnet had been a member of the Knickerbocker Athletic Club for a number of years, and in 1898 was living at the club house. Barnet was taken ill on the 28th day of October, 1898. He was first attended by Dr. Phillips, the same physician who subsequently attended Cornish. Dr. Phillips only attended Barnet on the first day of his illness, and Dr. Douglass then took charge of the patient and attended him until his death on November 10th, 1898. In the death certificate issued by Dr. Douglass “cardiac asthenia, caused by diphtheria,” was assigned as the cause of Barnet‘s death. Dr. Douglass was given a box which was found in Barnet‘s room and purported to contain “Kutnow” powder, and the latter told the former that he had received it by mail, had taken a dose of it, and he thought that was the cause of his trouble. Barnet also told Dr. Phillips that he had taken a dose of “Kutnow” powders and ascribed his trouble to that. Dr. Douglass took possession of this box on November 4th, 1898, and gave it to Guy P. Ellison, a chemist, who made a qualitative analysis and concluded that the “Kutnow” powder contained cyanide of mercury. The box was returned to Dr. Douglass with the chemist‘s report as to its contents, and thereupon the nurse in charge of Barnet was directed to search for the wrapper. No wrapper was ever found. On the 3d day of January, 1899, Dr. Douglass delivered to Captain McClusky the box taken from Barnet‘s room. On the 4th day of January, 1899, Captain McClusky delivered it to Prof. Withaus. The latter made an analysis of its contents and found it to contain “Kutnow” powder and cyanide of mercury. On the 28th day of February, 1899, the body of Barnet was exhumed at Greenwood cemetery, in the presence of Dr. Douglass, Prof. Withaus, Dr. Weston and others. Prof. Withaus made an analysis of the liver, kidneys and other organs in the body and found cyanide of mercury. Dr. Loomis, a pathologist, made a post-mortem examination and expressed the opinion that Barnet
As to the motive which the defendant is said to have harbored for the killing of Barnet, the prosecution gave evidence which, it was claimed, tended to show that the defendant was jealous of Barnet‘s attentions to the woman with whom the defendant was in love. In that behalf the facts, as presented by the prosecution and in part sustained by the evidence, are substantially as follows: In the summer of 1897 the defendant met Miss Cheeseborough at Portland, Maine. His attentions to her, which were immediate and marked, continued during their visit in Portland and were renewed after the return of Miss Cheeseborough to New York city. The defendant and Barnet were both members of the Knickerbocker Athletic Club and apparently good friends. In the fall of 1897 the defendant presented Barnet to Miss Cheeseborough at the Metropolitan Opera House. At this time the latter lived in apartments in the “Marie Antoinette” in New York city, but in a few weeks she took a room in the house of Mrs. Bell at No. 251 W. 75th street, New York city, where she remained until January, 1898. At this point in the chronology of the relations between the defendant and Miss Cheeseborough certain evidence was introduced by the prosecution which was
The foregoing outline of the facts which conclusively establish the death of Barnet and Mrs. Adams, respectively, and which tend to prove the cause thereof, and of the circumstances which are relied upon to connect the defendant therewith, naturally leads us, next, to a consideration of the other related facts and circumstances which are said to bear upon the handwriting of the poison package address and upon defendant‘s connection with the murder of both Barnet and Mrs. Adams.
We will first consider the “Barnet” letter box and its correspondence. One Nicholas Heckmann testified, in substance, that in May, 1898, he kept private letter boxes for rent at No. 257 W. 42nd street, New York city. On Friday, May 27th, 1898, shortly after six o‘clock, the defendant came to his place and rented a letter box in the name of H. C. Barnet. Defendant was given a ticket for box 217. Defendant called about twenty times after that and the witness delivered to him the mail addressed to H. C. Barnet, the general nature of which was patent medicine of various kinds. One package was described as being marked “Kutnow powder” and another “Von Mohl‘s Calthos.” The witness identified a box which came to box 217 some time in June, 1898, but was never called for and was delivered to the district attorney, who procured it to be analyzed. Late in the summer of that year the real H. C. Barnet received through the mail, at his office in the Produce Exchange, a box marked “Calthos” containing a number of pink capsules. The medicine bearing this name was advertised as a remedy for impotence. A similar package was found in Barnet‘s desk after his death. Some of the mail addressed to this box 217 was never called for. Part of it consisted of four letters, the envelopes of three of which bore the post office box number of Von Mohl & Co., of Detroit, and the fourth of which bore the post office box number of Dr. Fowler, of Moodus, Conn. These were marked 58, 61, 62 and 63 in the so-called prime series. Nine letters and communications were written in the name of H. C. Barnet. These, together with five “Bar
We now come to the “Cornish” letter box and the correspondence written in the name of Cornish. One J. J. Koch testified that in December, 1898, he had for five years conducted a letter box agency at 1620 Broadway under the name of the Commercial Co. He was also the proprietor of the “Studio Publishing Co.,” under which name an advertising agency was conducted at the same place. Under date of December 31st, 1897, the defendant, through his secretary, Mr. Allen, wrote upon the business stationery of Morris Hermann & Co. to the
This brings us to a statement of that branch of the evidence by which the prosecution claims to have established the culminating proof that the defendant was the writer of the address (Ex. A) upon the poison package received by Cornish. The evidence upon the subject of handwriting proceeds along several distinct lines, and the history of each will be stated separately. On the 29th day of December, 1898, the day after Mrs. Adams’ death, one of the newspapers in New York city published what was called a fac simile of the poison package address. It is known in the case as defendant‘s “Exhibit 12.” This was seen by John D. Adams, the secretary, and Andre Bustanoby, superintendent of the Knickerbocker Athletic Club. After seeing this Mr. Adams found some letters in the handwriting of the defendant which were on the files of the club. These were shown to Bustanoby. Both men were familiar with the defendant‘s handwriting, and were struck with the resemblance between “Exhibit A,” the poison package address, and “Exhibit 12,” the newspaper copy. On December 30th,
We now come to the testimony of the experts in handwriting. This fills so large a space in the record, and the conclusions arrived at are based upon so many different and even divergent points and theories, that it would be practically impossible to refer to this branch of the case in detail. It is, moreover, unnecessary for our purposes to do more than to refer to the methods upon which the conclusions of the handwriting experts are based, in order to decide whether error was committed upon this branch of the case. There were fourteen experts, of whom nine were men who had made the study of handwriting a profession, and the remaining five held various positions in banks which required an expert knowledge of signatures. They were all agreed that the defendant wrote the address upon the wrapper of the poison package. For the purpose of arriving at these conclusions they were permitted to use, and rely upon, all of the several writings which have been referred to in the foregoing statement. These writings may be classified as follows: 1. Exhibit “A,” known as the poison package address. 2. The so-called “Barnet” letters written in the name of H. C. Barnet. 3. The so-called “Cornish” letters written in the name
First in order, if not in importance, is the question whether any evidence was admissible concerning the alleged killing of Barnet. This question may be considered without referring to the specific objections or exceptions of the defense because
As has been disclosed by the foregoing statement of facts, evidence was received upon the trial tending to connect the defendant with the felonious killing of Barnet, for the purpose of proving his guilt of the crime of poisoning Mrs. Adams, which was the offense charged in the indictment. The general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. 1 Bishop‘s New Crim. Pro. sec. 1120. This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto. The rule itself has been stated and discussed in this court in a number of cases, but we will cite only a few. In People v. Sharp, 107 N. Y. 427, it was said: “The general rule is that when a man is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded.” In Coleman v. People, 55 N. Y. 81, it is laid down as follows: “The general rule is against receiving evidence of another offense. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point
The exceptions to the rule cannot be stated with categorical precision. Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial. Wharton on Crim. Ev. 9th ed., sec. 48; Underhill on Ev. sec. 58; Abbott‘s Trial Brief, Crim. Trials, sec. 598.
Let us now endeavor to apply to the case at bar each of these exceptions to the general rule.
First. As to motive.
It is obvious that in every criminal trial when proof of motive is an essential ingredient of the evidence against a defendant, the motive to be established is the one which in
In the popular mind intent and motive are not infrequently regarded as one and the same thing. In law there is a clear distinction between them. Motive is the moving power which impels to action for a definite result. Intent is the purpose to use a particular means to effect such result. When a crime is clearly proven to have been committed by a person charged therewith, the question of motive may be of little or no importance. But criminal intent is always essential to the commission of crime. There are cases in which the intent may be inferred from the nature of the act. There are others where willful intent or guilty knowledge must be proved before a conviction can be had. Familiar illustrations of the latter rule are to be found in cases of passing counterfeit money, forgery, receiving stolen property and obtaining money under false pretenses. An innocent man may, in a single instance, pass a counterfeit coin or bill. Therefore, intent is of the essence of the crime, and previous offenses of a similar character by the same person may be proved to show intent. Commonwealth v. Jackson, 132 Mass. 16; Commonwealth v. Bigelow, 8 Metc. 235; Commonwealth v. Stone, 4 Metc. 43; In re Helm, 1 C. H. R. 46; In re Smith, 1 C. H. R. 49; In re Coffee, 1 C. H. R. 52; In re Dougherty, 4 C. H. R. 166. So in a case where the defendant is charged with having received stolen property, guilty knowledge is the gravamen of the offense and scienter may be proven by other previous similar acts. Commonwealth v. Johnson, 133 Pa. St. 293; Coleman v. People, 58 N. Y. 555; Copperman v. People, 56 N. Y. 591; People v. McClure, 148 N. Y. 95. In cases of alleged forgery of checks, etc., evidence is admissible to show that at or near the same time that the instrument described in the indictment was forged or uttered the defendant had passed, or had in his possession, similar forged instruments, as it tends to prove intent. Commonwealth v. Russell, 156 Mass. 196; People v. Everhardt, 104 N. Y. 591; Rex v. Colclough, 15 Cox. Crim. Cas. 92. On the trial of an indictment for obtaining goods by false
The intent ascribed to the defendant in the alleged killing of Mrs. Adams was to kill Cornish. This is precisely the same as though he had succeeded in committing the particular crime he had planned. If A undertakes to kill B, and in the attempt kills C, the crime committed is no less a murder than it would have been if B had been killed. The agency employed to encompass the death of Cornish was cyanide of mercury, a poison so rare and deadly that it is not kept on sale in places where strychnine, arsenic and other poisons are sold. It was disguised in an effervescent salt called “bromo seltzer” which is a much used remedy for headache and other trifling human ills. The bottle containing this mixture was carefully prepared to create the impression that it contained nothing but the harmless “bromo seltzer.” It was accompanied by a silver bottle holder into which the bottle fitted. Both of these articles were inclosed in a box of the kind used in the sending of gifts. An empty card envelope was added to create the impression that it was a gift, and that the sender had forgotten to inclose his card. It was sent by mail on the eve of Christmas when, according to the universal custom of this country, gifts are exchanged in this manner, and when even the most cautious and prudent person might have taken counsel of his generosity rather than his suspicions. Could such a foul and cunningly devised act have been innocently done? Could proof of any number of repetitions of this act add anything to the conclusive inference of criminal intent which proof of the act itself affords? Can it be possible that in the face of such irrefragable indicia of murderous intent it is still neces
Third. As to the possibility of mistake or accident, or doubt as to the cause of death.
There are cases in which the possible or probable defense of accident or mistake may be rebutted upon the direct case of the prosecution; or in which the doubtful cause of the particular death may be established by other previous similar deaths. As most of these are poisoning cases they are of special interest and importance here. The fact that the earlier English reports are more prolific in such illustrations than all of our modern reports is probably explained by the great progress in medical science which has not only materially reduced the number of deaths from poisoning by mistake or accident, but has practically annihilated the possibility of death from poisons so subtle and obscure as to baffle investigation. In Regina v. Gardner and Wife, 3 Foster & Finl. 681, the prisoner Gardner had been previously married, and his former wife had died in March, 1861. Prior to that date his second wife had been a servant in the house. The prisoner‘s mother resided with him after the second marriage. The mother‘s death occurred in December, 1861, and it was clearly proved that she died from arsenical poisoning. Gardner, who dealt in milk, also sold arsenic for agricultural purposes. There was evidence of the administration, by the prisoner, to the deceased, of articles of diet in which arsenic might be concealed and of the symptoms of
Fourth. As to a common plan or scheme.
It sometimes happens that two or more crimes are committed by the same person in pursuance of a single design or under circumstances which render it impossible to prove one without proving all. To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of a general and composite plan or scheme, or they must be so related to each other as to show a common motive or intent running through both. Underhill in his work on Criminal Evidence, section 88, thus states this exception to the general rule: “No separate and isolated crime can be given in evidence. In order that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan. Thus the movements of the accused prior to the instant of the crime are always relevant to show that he was making preparations to commit it. Hence, on a trial for homicide, it is permissible to prove that the accused killed another person during the time he was preparing for or was in the act of committing the homicide for which he is on trial. And, generally, when several similar crimes occur near each other, either in time or locality, as, for example, several burglaries or incendiary fires upon the same night, it is relevant to show that the accused, being present at one of them, was present at the other if the crimes seem to be connected. Some connection between the crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received. This connection must clearly appear from the evidence. Whether any connection exists is a judicial question. If the court does not clearly perceive it, the accused should be given the benefit of the doubt and the evidence re
Before adverting to the facts and circumstances upon which the prosecution rests its claim that there is such a connection between the alleged killing of Barnet and the killing of Mrs. Adams as to justify proof of the former in support of the latter, we will pursue the course hitherto adopted in citing some authorities upon which the prosecution rely and which illustrate and limit the exceptions to the general rule. In Goersen v. Commonwealth, supra, the deaths of the defendant‘s mother-in-law and wife, respectively, were connected by evidence tending to show defendant‘s design to obtain possession of their property. There was a single motive, intent and purpose. In Hester et al. v. Commonwealth, 85 Pa. St. 139, which is known as one of the “Molly Maguire” cases, the defendants were on trial for a murder which had been preceded by a highway robbery in which they were implicated. Evidence was received to show that the defendants were members of a secret society which had for its object the commission of various crimes, such as beatings, arsons, robberies and murders, and the protection of its members from arrest and punishment by secreting them, aiding them to escape and otherwise. This was held to be competent to show that the crime charged was within the scope of the purposes for which the conspirators were banded together and to explain and corroborate other testi
Without further multiplying the cases which exemplify and support the exception to the general rule, that extraneous
Let us now endeavor to make a practical application of these principles to the case at bar, remembering that the subjects of motive, intent, accident and mistake have already been discussed, and that the subject of identity remains for separate consideration. Mrs. Adams was killed on the 28th day of December, 1898. The cause of the latter‘s death was clearly established by evidence connected with a definite motive and unmistakable intent. The only mistake or accident that was possible did in fact happen. The intended victim innocently administered the poison to another. We are, therefore, to consider whether the killing of Mrs. Adams and the alleged killing of Barnet were part of a common plan or scheme, or were so connected that evidence of the death of Barnet and its cause tended to prove the murder of Mrs. Adams. Barnet died on the 10th day of November, 1898. Subsequent events proved that he died of mercuric poisoning. There was no evidence tending to connect the defendant with the sending of the poison to Barnet, except the inference which may be drawn from the assumption that it was sent by mail, and this assumption is based upon the utterly incompetent statement of Barnet to his physicians. The motive for the alleged killing of Barnet is so distinct from the motive assigned for the crime charged in the indictment that a new and common motive is sought in the alleged forgeries of the defendant, and this, as we have seen, is the creation of counsel upon the argument of the appeal, never having been suggested upon the trial. The motive
It is said that the connection is established by the “Barnet” and “Cornish” letter box correspondence. Let us assume for the present that the “Barnet” letters were competent for all the purposes for which they were used. Referring to the “Barnet” correspondence and its incidents, it appears that the defendant rented a letter box in the name of Barnet. Through it the letters addressed to Barnet were received. There is no suggestion of Cornish in the renting of the box or in any of the communications which passed to and fro in the name of Barnet. When the defendant undertakes to describe a person who is not Barnet, as it is said he did in the “diagnosis blank,” he describes himself. Seven months later, and six weeks after the death of Barnet, the defendant rents a letter
Fifth. As to identity.
Another exception to the general rule is, that when the evidence of an extraneous crime tends to identify the person who committed it as the same person who committed the crime charged in the indictment, it is admissible. There are not many reported cases in which this exception seems to have been affirmatively applied. A far larger number of cases, while distinctly recognizing its existence, have held it inapplicable to the particular facts then before the court. The reason for this is obvious. In the nature of things there cannot be many cases where evidence of separate and distinct crimes, with no unity or connection of motive, intent or plan, will serve to legally identify the person who committed one as the same person who is guilty of the other. The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the superadded evidence of the previous crime. Hence our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevancy and competency was not clearly shown. As was said in People v. Sharp, 107 N. Y. 471, such evidence
Before leaving this point it may be added that even if the evidence relating to the death of Barnet were generally com
As to the evidence of handwriting.
For the purpose of proving that the defendant wrote the address upon the package of poison received by Cornish, the
The facts upon which the prosecution based the charge that the defendant had written the writings of the third class, and the facts necessary to be understood in considering the admissibility of the writings of the second class, briefly recapitulated, are as follows: On the 27th day of May, 1898, the defendant rented a letter box in the name of H. C. Barnet from one Heckman, who kept a private letter box agency at No. 257 W. 42nd street, New York city. The nine “Barnet” letters consist of Exhibits B, C, F, H, I, M, O, P and Q. The envelopes consist of Exhibits B2, J, K, N and R. These letters were addressed to various manufacturers of proprietary medicines for remedies. None of them referred in terms to any fact or circumstance connected with the death of Mrs. Adams. All of these letters are said by the experts to disclose certain peculiarities of handwriting which also appear in the “Cornish” letters, in the poison package address and in the conceded writings of the defendant. One of these, the “diagnosis blank,” written in the name of Barnet, is said to describe the defendant and not Barnet. The “Cornish” letters embrace Exhibits D, E and G. Exhibit D is one addressed to Stearns & Co., asking for information about Harpster. Exhibit E is
The first point made by the defendant is that comparison of the address upon the poison package could not be made with any other writings whatever under the statutes regulating the subject in this State. When the genuine writings of the defendant, known in the case as the “conceded writings,” were offered by the prosecution as standards of comparison, the defendant objected to them upon the ground that comparison of handwriting is competent only in a case in which the disputed writing is the subject-matter of the issue to be tried, and never when it is only evidentiary; in other words, that comparison may be made when the disputed writing is the fact in issue, but not when it is merely a fact relevant to the issue. The disposition of this objection goes to the foundation of the People‘s case, and requires a statement of the rule at common law and of its statutory modifications.
There is some difference of opinion among the highest courts of the several States concerning the extent to which comparison of handwritings may be made at common law. The rule long established in England, which was adopted in this State and existed until the enactment of the statute of 1880, was briefly this: Whenever it was relevant, according to the gen
It will be seen, upon an examination of the decisions establishing the common law rule in England and in this State, that the idea that a disputed writing must be the very fact in issue
The first statute in this State upon the subject is chapter 36 of the Laws of 1880, entitled “An act to amend the law of evidence and practice on civil and criminal trials,” and is as follows:
“Section 1. Comparison of a disputed writing, with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.
“Section 2. This act shall take effect immediately.”
It is obvious that the purpose of this enactment was to enlarge and not in any wise to narrow the rule established at common law. The latter was generally felt to be too inelastic, as it frequently excluded from the consideration of the court testimony which common experience proved to be helpful. As early as 1854 the restrictions of the common law rule had been thrown off in England by statute. 17 & 18 Vict., chap. 125, secs. 27, 103; 28 Vict., chap. 18, secs. 1, 8.
The statute of 1880 is almost verbatim like the English statute of 1854. So far as our research has gone we have been unable to find any suggestion that the statute was intended to limit comparisons which, at common law, could be made concerning any writing relevant to the issue to writings which were themselves facts in issue, except a dictum presently to be noticed. Such a construction cannot be given the statute without assuming that the legislature, while intending to broaden the common law rule, actually made it much narrower.
The statute of 1880 was first considered by this court in Peck v. Callaghan, 95 N. Y. 73. That was an appeal from
The decision in Peck v. Callaghan was made in 1884, and in 1888 the legislature, evidently in order to avoid the construction confining the standards of comparison to the genuine handwriting of the person purporting to have executed the disputed instrument, enacted chapter 555 of the Laws of 1888, which is as follows: “Section 1. Section 2 of chapter 36 of the Laws of 1880, entitled ‘An act to amend the law of evidence and practice on civil and criminal trials,’ is hereby amended so as to read as follows:
“Section 2. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine
handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing, shall be permitted and submitted to the court and jury in like manner. But nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending. “Section 2. This act shall take effect immediately.”
The Act of 1888 does not repeal or supersede the act of 1880, but enlarges the operation of the latter by admitting evidence of the kind which it was thought had been decided in Peck v. Callaghan to be inadmissible under the statute of 1880. In other words, it authorized evidence which would establish forgery of the disputed writing by a particular person. We see nothing in either of the statutes which have been quoted to justify the construction attempted to be placed upon them by the defendant, while the whole history of the subject at common law and under the statutes of Great Britain and this State requires the contrary view.
The precise question appears never to have been decided in any of the courts of this State, probably for the reason that the bar have deemed the statutes too plain to warrant so fanciful a construction as the defendant‘s counsel attempts to give them here. We think it too clear for extended argument that the “disputed writing” referred to by the statutes is any writing which one party upon a trial seeks to prove as the genuine handwriting of any person, and which is not admitted to be such, provided that the writing is not inadmissible under other rules of evidence. The statutes were clearly intended to remove the restriction which at common law limited the comparison of a disputed writing, either with other writings put in evidence for other purposes than comparison, or with standards existing in the minds of witnesses familiar with the handwriting of the person sought to be charged with the disputed writing. The class of disputed writings which may be proved upon the trial of an issue has neither been enlarged nor restricted. The admissibility of such disputed writings depends upon other rules than either the common law or the
Although similar statutes are in force in several of the States, no such construction as is contended for by the defendant here has ever been suggested, so far as we have been able to ascertain. In this connection it is significant that comparisons between disputed writings merely evidentiary in character and accepted standards have been sanctioned in a number of cases before this court, some of which have passed its scrutiny although it had the power of correcting errors not pointed out by exceptions. Sudlow v. Warshing, 108 N. Y. 520; McKay v. Lasher, 121 N. Y. 477; Dresler v. Hard, 127 N. Y. 235; People v. Sliney, 137 N. Y. 570; Mutual Life Ins. Co. v. Suiter, 131 N. Y. 557; People v. Corey, 148 N. Y. 476; People v. Kennedy, 164 N. Y. 449.
It is, of course, beyond dispute that the People‘s Exhibit A, the address upon the poison package, is an important link in the chain of evidence tending to connect some person with the killing of Mrs. Adams. It is a fact relevant to the issue, the fact in issue being whether the defendant killed Mrs. Adams. The defendant‘s contention is that if he were on trial for having forged Exhibit A (were such a thing possible), then Exhibit A would be the fact in issue and might be compared with the “conceded writings” in order to establish the charge that the defendant wrote Exhibit A. But, since the fact in issue is the defendant‘s responsibility for the death of Mrs. Adams, and Exhibit A is only a link in the chain tending to connect him with the death, no such comparison can be resorted to. We think we have demonstrated the fallacy of this argument and have already given it more space than it merits.
Writings created post litem motam are inadmissible in favor of a party creating them. Chamberlayne‘s Best on Ev. 236; Hickory v. U. S., 151 U. S. 303. But we have found no case holding that such writings should be excluded when offered by the adverse party, except R. v. Crouch, 4 Cox‘s Crim. Cas. 163, which was decided before the English statute of 1854, and
The third objection made by the defendant to the standards of comparison adopted at the trial is to the admission of the “Barnet” letters and “Cornish” letters. The “Barnet” letters were undoubtedly admitted in the first instance to support the charge that the defendant had killed Barnet, and the “Cornish” letters to sustain the charge that he murdered Mrs. Adams. Both were subsequently treated as evidence tending to connect the defendant with each of the crimes said to have been committed by him. All of these letters were also used as standards of comparison from which to determine who wrote the poison package address. They may, therefore, be considered together for the purpose of review under this head. The statutes of 1880 and 1888 provide that the comparison of a disputed writing may be made with any writing proved to the satisfaction of the court to be genuine. The words “proved to the satisfaction of the court” are to be construed in the light of the obvious purpose for which these statutes were enacted. At common law a paper properly in evidence for general purposes can be compared with a disputed writing, but only when the genuineness of the handwriting of the former is admitted or proved beyond a reasonable doubt. Chamberlayne‘s Best on Ev. 239; Doe v. Newton, 5 Ad. & El. 514; 1 Greenleaf on Ev. (14th ed.) 578; Miles v. Loomis, 75 N. Y. 288; State v. Scott, 45 Mo. 302; Moore v. U. S., 91 U. S. 270. Since these statutes were designed to amplify and broaden the common law rule by permitting the use of genuine writings as standards of comparison, even when they are not competent or relevant for other purposes, it must be assumed that the language prescribing the manner in which the genuineness of such writings
Since common law evidence is competent to establish the genuineness of a writing sought to be used as a standard of comparison, it is apparent, in the absence of a statutory rule as to the degree of proof to be made, that the general rule of the common law as to the sufficiency of evidence must prevail. In civil cases the genuineness of such a paper must be established by a fair preponderance of the evidence and in criminal cases beyond a reasonable doubt. Writings proved to the satisfaction of the court by the methods and under the rules adverted to, may be used as standards for purposes of comparison with a disputed writing, subject, however, to the qualification that writings which are otherwise incompetent, should never be received in evidence for purposes of comparison.
It was further urged at the bar in behalf of the defendant that the statutes of 1880 and 1888 authorizing comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine are unconstitutional because in conflict with
The argument, in brief, is that this provision of the Constitution requires the submission to the jury in every case properly triable by jury, of every material fact relied upon to establish the allegations in controversy. It is unnecessary to go into an extended examination of the question. We are clearly of the opinion that these statutes are not unconstitutional and that the proper construction of the statutes requires the submission to the jury of the genuineness of the standards with which the disputed writing is compared. The word “court” in the statutes is used in its generic sense, and includes both judge and jury in a case where a jury is present. It is significant that the statute of 1880, which was obviously copied from the statute of Great Britain enacted in 1854, substitutes the word “court” for the word “judge.” We are not aware that it has ever been decided even in England by any court of great authority that the ultimate decision concerning the genuineness of the standards of comparison must not be made by the jury. Be that as it may, however, such a decision would not, in view of the difference between the powers of the legislature in Great Britain and in this state, and the significant difference in the phraseology of the statutes, serve as a guide to the interpretation of our statutory enacements upon the subject. We have not been referred to and have
The sufficiency of the proof given of the genuineness of the papers offered as standards is a preliminary point to be determined in the first instance by the court before permitting the papers to go to the jury. If the court, having regard to the rules adverted to, adjudge the papers genuine, it then becomes the duty of the jury in its turn, at the proper time, before making comparison of a disputed writing with the standards, to examine the testimony respecting the genuineness of the latter and to decide for itself, under proper legal instructions from the court, whether their genuineness has been established.
We are aware that a contrary conclusion respecting the duty of the court to submit the genuineness of the standards of comparison to the jury has been reached in Vermont, Rowell v. Fuller‘s Estate, 59 Vt. 668, and apparently in Massachusetts, Costello v. Crowell, 133 Mass. 352. We are convinced, however, that the sounder rule is the one we have stated.
It may be added that comparisons with standards produced in court, whether at common law or under the statutes, may be made by witnesses, or by the court or jury without the aid of witnesses. Cobbett v. Kilminster, 4 Fost. & Fin. 490;
Another point urged upon our attention by counsel for the defense is that the learned trial court erred in admitting in evidence upon the trial the testimony of the defendant given at the coroner‘s inquest. This question must be decided for the guidance of the court below upon another trial. When this testimony was offered in evidence .by the district attorney the defendant‘s counsel interposed the objection that it had not been shown that the defendant was advised of his rights at that time, and had not been warned of his rights by the coroner. What were the defendant‘s rights at the inquest? If the defendant, when he attended the inquest, was under arrest or formal accusation for the murder of Mrs. Adams, he was entitled to be informed of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings were had. (
What was the situation at the coroner‘s inquest held upon the death of Mrs. Adams? It appears that the inquest was commenced on the ninth day of February, 1899. The defendant attended the inquest, was sworn and testified pursuant to a subpoena issued to him by the coroner on the 10th day of February, 1899. The inquest was concluded on the 27th day of February, 1899, and the defendant was arrested at its close upon a warrant charging him with the murder of Mrs. Adams. When the defendant‘s counsel, upon the trial, interposed the preliminary objection to the admission of evidence of the testimony given by the defendant at the inquest, the learned trial court very properly allowed an examination into the proceedings at the inquest for the purpose of determining whether the defendant had testified as a party or as a witness. People v. Fox, 121 N. Y. 449. The ground of defendant‘s complaint in this behalf upon this appeal, is that he was not given the opportunity to show that he was in fact an accused party at the inquest and that his rights as such had not been recognized by the coroner. Many pages of the record are filled with the proceedings in this regard showing that from the outset of the inquiry into this subject the district attorney objected to the questions of defendant‘s counsel; that many of these objections were sustained and that the court by frequent interventions prevented defendant from completing the questions which he had started to frame. The sole purpose of this inquiry was to ascertain a few facts which were matters of record, and of which it was necessary for the court to become informed, to enable it to pass upon the admissibility of the testimony then offered in evidence. It is obvious that the facts to be ascertained were of paramount importance as compared with
The record further discloses that the defendant sought to show that the district attorney in his summing up to the coroner‘s jury stated that he had from the beginnng suspected the defendant of the commission of the crime, but had pretended to suspect Cornish so as to lull the defendant into a sense of security and thus get him to testify. This statement, if made, was after the defendant had testified. Whether it was true or not, or whether the district attorney‘s suspicions
Among the questions urged upon our attention there are several which may be grouped together for the purpose of such brief consideration as we deem it necessary to give them. They are (1) that the court erred in its charge to the jury and in its refusal to charge the requests submitted by counsel for the defendant; (2) that prejudicial error was committed in the opening and summing up of the district attorney; (3) that the trial court erred in admitting incompetent evidence and excluding competent evidence over the objection of the defendant; and (4) that the defendant did not receive that fair and impartial trial to which he is entitled under the law.
The first and third of these points need not be discussed. Many of the exceptions taken to the charge, the refusals to charge and the rulings admitting or excluding evidence have been disposed of in the conclusions that the “Barnet” evidence was inadmissible and that the rules governing expert evidence upon the subject of handwriting were not properly applied, and many other exceptions will be obviated by the different course which another trial of this case will necessarily take.
The claims of defendant‘s counsel that “error was committed in the opening and summing up of the District Attorney,” and that “the defendant did not receive that fair and impartial trial to which he is entitled under the law,” have been so urgently presented that we should be inclined to discuss in detail the many grounds of error assigned under these heads, were it not impossible to do so, fairly and impartially, without a full and critical review of the twelve thousand folios
And, finally, counsel for the defendant contends that the verdict of the jury is not supported by the evidence. In view of the fact that a reversal of the judgment herein is required by the decision reached upon the two questions discussed in the earlier pages of this opinion, it would be obviously unprofitable and improper, in the face of the new trial which must be had, to express our views upon the weight of the whole evidence, and we, therefore, pass defendant‘s fourth point without further mention.
In conclusion we desire to express our sense of obligation to counsel for both the prosecution and the defense upon this appeal for the fairness and ability with which the case was presented, and for the diligence in research and painstaking arrangement of details which have contributed so materially to lighten the labors of the court.
The judgment of the court below should be reversed and a new trial ordered.
O‘Brien, J.: There can be no doubt that the People were permitted upon the trial of the defendant, now under review, to give proof of the commission by him of two distinct crimes, namely, the poisoning of Barnet and the poisoning of Mrs. Adams. The only crime charged in the indictment was the murder of the latter. We all agree that a vital part of the testimony with respect to the death of Barnet and its cause was mere hearsay and incompetent. Whether any proof bearing upon the sickness and death of Barnet, or the defendant‘s connection with it, was admissible upon the trial of the case at bar is a much broader and more important question. The defendant was indicted for feloniously causing or procuring the death of Mrs. Adams, and the fact, if it be a fact, that
The only question upon which there is an opportunity for minds to differ is whether the events connected with Barnet‘s sickness and death are so related to the case at bar as to form an exception to the general rule and thus bring the proof that was given at the trial within some one of these recognized exceptions.
The issue in this case was whether the defendant was guilty of causing the death of Mrs. Adams, and not whether he was guilty of causing the death of Barnet. In a more specific sense the issue was whether he sent upon its errand of death, through the mail, the package from which the deceased, through mistake, took the deadly poison that killed her, or to be still more specific, the issue was whether the defendant wrote the direction upon the package with the felonious intent to transmit it by mail to Cornish. If the address upon the package was in fact written by the defendant all the elements of the crime were to be deduced from the maxim res ipsa loquitur. The events constituting the history of Barnet‘s sickness and death did not prove, or tend to prove, the fact that the defendant wrote the address upon the poison package that eventually came to the hands of Mrs. Adams, and that was the material issue at the trial.
The death of Mrs. Adams resulted from poison administered by her own hand, but the real author of her death was the person who made use of the mail to transmit to some one the deadly substance that produced death. In any inquiry concerning the identity of the author of a great crime, where the evidence is purely circumstantial, the human mind instinctively adopts processes in arriving at results that are not sanctioned by the rules of evidence. The hardened and habitual criminal is more likely to be suspected than one who had never committed a crime before. If the party suspected committed a
It is said that the evidence culminating in Barnet‘s death tends to identify the defendant as the author of the death of Mrs. Adams; but that is only another way of asserting the general proposition that the commission by the defendant of one crime tends to prove that he committed another crime, and no matter in what form, or how often that proposition is asserted, or how persuasive and plausible it may appear, it is erroneous and misleading, since it violates a salutary principle of the law of evidence which should be applied in all cases without regard to the question of actual guilt or innocence. If the guilty cannot be convicted without breaking down the barriers which the law has erected for the protection of every person accused of crime, it is better that they should escape rather than that the life or liberty of an innocent person should be imperilled. I think the evidence relating to Barnet‘s sickness and death would not for a moment be considered competent but for the fact that it creates a strong impression upon
The cases cited to show that proof of Barnet‘s death was admissible to prove that the defendant wrote the address upon the package sent to Cornish have all been explained in the opinion of Judge Werner, and it is unnecessary to comment upon them further than to say that in my opinion none of them apply to the case at bar. When these cases and all the considerations urged in behalf of the People have been given due weight, it is still safe to say that the question as to the competency of the proof is by no means clear, but at best is very doubtful, and, therefore, the accused, and not the prosecution, should be given the benefit of that doubt. It is so difficult for the human mind to discard false theories that assume the disguise of truth, and so easy to substitute suspicions and speculations for evidence of facts that proof of the general bad character of the accused, or of participation in other crimes, which is practically the same thing, would no doubt be of great aid to the People in procuring a conviction for the specific offense charged in the indictment. Such proof in a doubtful case might turn the scale against the accused, but the law, for obvious reasons, does not permit it, and it is dangerous to
If the defendant wrote the address upon the poison package that was sent to Cornish then he is identified, but proof that at another time he sent another package to Barnet proves nothing in regard to the address. All it proves is that possibly he was capable of the wicked act charged in the indictment, and that is only another way of proving his general bad character, not even by reputation, but by a specific act, which all agree is not admissible.
While the chain of proof to connect the defendant with the poisoning of Barnet is fatally defective in that there is no competent testimony to show that he ever sent to him by mail or otherwise the bottle of Kutnow powders which it is said contained the poison, yet if the missing link had been supplied it would only make the proof all the more dangerous and incompetent. The defendant was required to answer the charge of causing the death of Mrs. Adams, and not the charge of causing the death of Barnet; but by the whole course of the trial and the rulings of the court he was really and substantially required to answer both charges, and since this constitutes a clear error of law defendant is entitled to have the judgment of conviction reversed, and as this may possibly result in a new trial it is scarcely within the province of this court to express any opinion upon the facts.
Parker, Ch. J.: I vote for a reversal of this judgment on the ground that the court erred in receiving the testimony of Doctor Douglass to the effect that Barnet stated to him in his last illness that he had received a box of Kutnow powder through the mail. The declarations of Barnet under the circumstances disclosed by the physician were not competent to show that Barnet received Kutnow powder through the mails. As the fact thus sought to be established was one of vast importance, the exception taken to the admission of the testimony requires a reversal of the judgment.
I dissent from that part of the prevailing opinion which, in effect, holds that had the fact been established by competent evidence that Barnet had taken a dose of Kutnow powder containing cyanide of mercury which he had received through the mails, nevertheless the evidence tending to show that the defendant mailed that Kutnow powder to him is inadmissible on the trial of the defendant for the killing of Mrs. Adams.
Of course it is not admissible unless it tends to prove that Molineux is responsible for the death of Mrs. Adams. If it does tend to prove such responsibility, then it is admissible, although the facts proved establish that the defendant committed another crime. It is often carelessly said that the People cannot upon trial under an indictment prove facts showing that defendant committed another crime, a statement which is incorrect without the addition of the qualification: Unless the facts establishing the other crime also tend to establish the
There is no controversy in this court—nor out of it—so far as I know, touching the general rule that evidence of the commission by him of other crimes is not admissible upon the trial of a defendant charged with crime. It is only on rare occasions that proof of the commission of another crime by a defendant is either necessary or helpful toward establishing the crime with which he is charged. Hence the evidence is ordinarily irrelevant, while at the same time its admission would necessarily operate to so prejudice a jury against a defendant as that in a doubtful case it might control the verdict. Therefore the courts long ago decided that a defendant should not be prejudiced by the admission of evidence of other crimes committed by him which in no wise tends to establish that he committed the crime for whose commission he is on trial. But it has never been held by any court of responsible authority that the People cannot prove the facts constituting another crime, when those facts also tend to establish that the defendant committed the crime for which he is on trial. Such a holding would accomplish the absurd result of permitting a rule intended to prevent a defendant from being prejudiced in the eyes of the jury because of his life of crime to so operate in certain cases as to prevent the People from proving the facts necessary to convict him of the crime charged. The interests of justice, which require alike the conviction of the guilty and the acquittal of the innocent, make it the duty of courts to preserve this rule in its entirety, for by it a defendant will be protected from the prejudice resulting from the evidence of other unrelated crimes committed by him, while the People will not be prevented from proving the facts of another and related crime which tend to establish the commission by the defendant of the crime charged.
There are many cases both in England and in this country where the People are permitted to prove the commission of another crime by defendant, because it tended to prove him guilty of the one for which he was standing trial. Among
It is unnecessary to refer to these cases in detail, as it is sufficient for my present purpose to say that each one of them presents a case in which proof of the facts tending to show the commission of another crime by the defendant on trial was
Horton on Criminal Evidence (9th ed. sec. 48); Underhill on Evidence (sec. 58); Abbott‘s Trial Brief—Criminal Causes—(sec. 598), are cited in support of the statement that “Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” This list of exceptions has been extended in terms in some of the opinions in the cases cited, supra, but it is of sufficient length for the purposes of this discussion. The argument then proceeds with an attempt to show that evidence authorizing a finding that Molineux killed Barnet is not within any of the exceptions, and, hence, it is assumed that it is not competent. I think the real test in such cases is: Does the evidence of the other crime fairly aid in establishing the commission by defendant of the crime for which he is being tried? And that test, and none other, is fairly established by the authorities.
It is conceded that cases have arisen where another crime was permitted to be proved for the purpose of establishing a
An examination of the case cited, supra, discloses still other situations in which the proof of another offense has been sanctioned, and those cases show that almost every element essential to a conviction for crime either has been established or the evidence tending to prove it has been supported and strengthened by proof of the commission of another crime by the same party. In not one of those cases is it suggested that
But I shall not discuss the evidence from that point of view, for it is my purpose to attempt to show that even if we assume the contention to be sound that the People can prove facts constituting another crime only when they are within one of the
In the prevailing opinion, after a preliminary discussion of the facts relating to the death of Mrs. Adams, it is said: “The next and final step in the case of the prosecution would have been to prove the defendant‘s connection with the handwriting of the address upon the poison package.” This done, it is conceded that a prima facie case would have been established on the part of the People. Evidence to that effect was given by three lay witnesses and also by a number of handwriting experts. But the People were not obliged to stop there. If there were other evidence tending to show that the defendant sent the poison package to Cornish, it was the duty of the prosecuting officer to present it to the court and the jury. Of course no one saw the person who sent the package mail it and, aside from the proof of the handwriting, resort had necessarily to be had to circumstantial evidence to prove who was the sender.
The package sent to Cornish contained a bromo seltzer bottle filled with bromo seltzer in which had been put cyanide of mercury, and Mrs. Adams on taking a dose from that bottle for sick headache obtained such a quantity of cyanide of mercury as to lose her life. Cornish also took a small dose but it did not prove fatal. Cyanide of mercury is a rare and unusual poison, not kept on sale by druggists generally as strychnine and many other poisons are, and the books of the medical and chemical professions record only five cases, prior to these, of death by that poison. Dr. Phillips, a physician who was called to see Cornish, suspected that he had taken cyanide of mercury because of the similarity between the symptoms displayed by him and those exhibited by Barnet, whom he had treated a little over a month previous. The fact
On May 27, 1898, a letter box was hired from one Heckman in the name of H. C. Barnet. Barnet did not rent it and Heckman positively identified the defendant Molineux as the man who did rent it and gave his name as H. C. Barnet. To that letter box was sent, among other things, patent medicines, to which other reference will be presently made. Some one in the name of Barnet wrote to the Marston Remedy Company a letter inclosing five dollars with a request that he be sent one month‘s treatment for impotency, and the address of the letter box which Molineux had rented in the name of Barnet was given. In reply the Marston Remedy Company sent a blank diagnosis sheet, addressed to H. C. Barnet at that private letter box as requested, with directions that the questions thereon be answered. The author of the answers to the questions in that diagnosis blank gave the following description of himself: (1) single man; (2) thirty-one years of age; (3) chest measurement thirty-seven inches; (4) waist measurement thirty-two inches; (5) there had been consumption in his family; (6) business sedentary; (7) contemplating matrimony; (8) eyes and complexion “yellowish;” (9) seeking treatment for impotency. This in no respect described the real H. C. Barnet, who was a large man weighing one hundred and eighty pounds, but according to the People‘s evidence it described Molineux with perfect accuracy. He was single; was thirty-one years of age in the very month the letter was written; his tailor had measured him less than two months before and testified his chest measurement was thirty-seven inches and his waist measurement thirty-two inches; the death certificate of his
The identity of Molineux in the Barnet case being established, the People were at liberty to show that the facts and circumstances in the Barnet case and the Cornish case were of such a character that they must necessarily have resulted from the action of a single mind. To have shown that would necessarily have identified the defendant as the criminal actor in the attempt to poison Cornish. It turned out that before the attempt to poison Cornish was made some one hired a private letter box in his name, and, as in the Barnet case, it was not hired by Cornish, nor by him. Now, while Molineux personally hired the box in Barnet‘s name at Heckman‘s, he did not personally hire the box at Koch‘s, at 1620 Broadway, which was hired in Cornish‘s name. But it seems that Koch, in addition to renting private letter boxes to persons who had personal and confidential correspondence which they wished to keep out of the regular channels of their mail matter, sent out a publication called the “Studio,” and on December 31, 1897, about a year before the death of Mrs. Adams, Molineux
After the hiring of the box some one wrote for Kutnow powders in the name of H. Cornish and directed that they be sent to the letter box at 1620 Broadway which the stranger had hired, and the letter was written on the same kind of blue paper, with a tri-crescent emblem at the top, as Molineux used in his letter to Dr. James Burns on June 1st asking for a remedy for impotency. The Kutnow powders were sent to 1620 Broadway in pursuance of the request, but by mistake were placed in the wrong box. A letter was also written on the blue stationery with the tri-crescent emblem as in the other cases to Von Mohl & Company, of Cincinnati, requesting a five days’ trial of their remedy for impotency, the address given being 1620 Broadway. This letter was not written by Cornish, “Calthos” was the name of the remedy of Von Mohl & Company and a box of it was sent to H. Cornish at 1620 Broadway. Some person other than Cornish, but in his name, sent a letter, also written on blue paper with the tri-crescent emblem as in the other instances referred to, to Frederick Stearns & Company, of Detroit, Michigan, concerning one A. A. Harpster, in which the address of H. Cornish was given as 1620 Broadway. I shall not refer further to the Harpster incident, which is one of considerable importance as disclosed by the record, other than to say in passing that Harpster was a great friend of Cornish, and had taken sides with him in Cornish‘s controversy with Molineux, thus arousing the enmity of Mol
Cornish received through the mails a bottle of bromo seltzer containing cyanide of mercury, a dose of which resulted in the death of Mrs. Adams. Molineux was a chemist and a manufacturer of dry colors, and kept large quantities of Prussian blue and other dry colors from which cyanide of mercury can be made. Three lay witnesses, who were familiar with the handwriting of Molineux, testified that the letters signed “H. Cornish,” to which reference has been made, as well as the Barnet letters and the answers in the diagnosis blank, were in the handwriting of Molineux. And the testimony of a number of prominent experts in handwriting is to the same effect. But aside from that testimony there is to be gleaned from the letters themselves and the circumstances surrounding and attending their writing very strong evidence that one brain conceived and carried out both schemes. In each case the letter box was hired in the name of the intended victim; in each, remedies for impotency were written for in the name of the intended victim; both the Cornish and the Barnet letters were undated; both series of letters, as well as the address on the poison package, contained misspelled words; in each case a rare poison—cyanide of mercury—was employed; in both cases the mails were used to convey the poison to the intended victims; in both cases samples of Kutnow powder were written for, and were received at both boxes; Calthos, a remedy for impotency, was also received at both boxes; Barnet and Cornish were members of the same club, and the poison sent to each was contained in a simple headache remedy in ordinary use. These facts and circumstances standing wholly uncontradicted and unexplained, as they do in this record, force the mind almost irresistibly to the conclusion that the same man desired the death of both Barnet and Cornish and plotted and worked to accomplish it. Certainly a jury are at
The evidence in the Barnet case, therefore, tends to identify Molineux as the sender of the poison package in the Cornish case, thus supporting the evidence of the lay and expert witnesses who testified that the address on the poison package sent to Cornish was in the handwriting of Molineux. The Barnet evidence, therefore, is strictly within one of the exceptions referred to in the prevailing opinion. It is said in People v. Dimick, 107 N. Y. 13, 32, that the People have the right, when it is material, to give proof of the facts constituting another crime and have it submitted to the jury under proper instructions, although such proof may be inconclusive, and if this view of a unanimous court in that case should be followed the Barnet evidence would be competent, although direct proof of the sending of the Kutnow powders through the mails should not be made out on the retrial.
This argument, however, has proceeded on the assumption that, in order to justify the retention of the evidence relating to the Barnet crime, it is necessary to establish every element relating thereto, which necessarily includes the receipt by Barnet of Kutnow powders through the mails. Hearsay evidence to that effect was admitted by the court and its admission was error, but we cannot assume that on the new trial which is about to be ordered the People will not be able to establish that fact by competent evidence, and great care should be taken not to close the door against such evidence, if it exists, for that justice which the safety of society requires and the law demands has not as yet been meted out to the murderer of Mrs. Adams.
Gray, J.: I think the judgment of conviction should be reversed and that the defendant should have a new trial, for error in the admission of testimony relating to declarations
The theory of the prosecution was that the defendant had caused Barnet‘s death by poison from motives of jealousy and had attempted to poison Cornish from motives of hatred provoked by personal conflicts and quarrels. It is plain that there could be no common motive and the theory of the prosecution could only become serviceable, if the evidence relating to the commission of a former crime would identify the defendant as the common perpetrator of both crimes. In my opinion, all of the exceptions to the general rule of evidence mentioned may be eliminated, as of useless consideration, except that which makes all legal evidence admissible for the identification of the defendant. I cannot perceive its relevancy for the purpose of proving intent, or the absence of mistake, or accident. The defendant was shown to be familiar with
As to the handwriting evidence, I concur with Judge Werner‘s construction of the statutes; but, while conceding the admissibility of opinion evidence as to handwriting, I am, nevertheless, indisposed to concede to it such evidentiary character and strength as, like a fact, to constitute a link in the chain of circumstantial evidence, upon which a capital conviction shall depend. Such evidence is entitled to be considered by the jury as corroborative of other evidence, connecting the defendant with the commission of the crime.
In view of the responsibility imposed upon this court in capital cases, I think that the circumstances relied upon to support the defendant‘s conviction should be such as; when considered with the opinion evidence, to convince the mind of its absolute correctness.
Judgment of conviction reversed and new trial ordered.
Opinion by Werner, J., with whom Bartlett and Vann, JJ., concur; O‘Brien, J., in mem.; Parker, Ch. J., Gray and Haight, JJ., concur in result, and dissent only as to the admissibility of the evidence tending to prove the poisoning of Barnet; Parker, Ch. J., and Gray, J., writing; Haight, J., concurring with Parker, Ch. J.