People v. . Molineux

120 XVI. VOL. REPORTS, YORK CRIMINAL NEW him. The against a fair and charge impartial jury try not might beem sworn they had these suggestion jurors on possibly drawn but have been jury excused, have without any speculation a different rendered, pure verdict therefore, was, to the panel foundation of The challenge fact. of Dr. Woodruff, The overruled. testimony properly deceased, on body who made the physician' autopsy aby have been produced could not that the on the head injury Piper, v. blow, was single competent. (Commonwealth and skill of medical science was one Mass. The matter 185.) therefore, and, prop technical knowledge anatomy involving evidence. subject expert erly must be affirmed. from appealed judgment

The Martin, Vann, Parker, Ch. J., Bartlett, Gray, and Wer- JJ., ner, concur. affirmed.

Judgment Appeals.

Court October, 1901. B. MOLINEUX. PEOPLE v. ROLAND

THE 264.) (168 Rep. N. Y. Alleged not in Indict- Crimes of Other

1. Murder—Evidence—Proof ment. put upon a man is trial is that when rule of evidence general convicted, all, offense, if shows he is to be at for one alone, ordinary under circum- guilty of that offense that he is stances, or a score of other offenses in his guilt proof of one lifetime, wholly excluded. Same—Exception to Rule. 2. competent crimes is speaking, evidence of other Generally (1) motive, charged when it to establish crime tends specific accident, (4) (3) (2) intent, common the absence of mistake B. MOLINEUX. V. ROLAND

THE PEOPLE so or more crimes embracing the commission of two plan scheme or others, to establish the proof of one tends related to each other on (5) the crime commission of indentity person of the with the the trial. 3. Same—Motive. competent upon extraneous crimes has been held When evidence of motive, under- motive, specific either the the existence of must be all of the common to lying particular charged, the crime or a motive sought proved. crimes to be

4. Intent. by person previous a similar the same While offenses of character intent, may proved testimony weight has no be show felonious such any which the light upon where it fails to throw the intent with committed, strengthen subsequent support crime was or to or the may tending inferences as to intent which be drawn from the evidence to show that defendant subsequent crime. committed 5. or Same—Mistake Accident. rare, a deadly poison Where subtle and mixed with a harmless was powder by of common use and sent mail at Christmas time to the victim, proof prior of a extraneous of similar character could crime necessary not be or proper anticipate impossible defense of accident mistake. 6. Same—Common Plan or Scheme. another, To make one criminal act evidence of a connection between linking together them must have existed in the mind of the actor them purpose necessary for some accomplish; he intended to or it must be identify person by of the actor a connection which shows that he who one committed the must have done the other. Same—-Identity.

7. parallel The mere fact that two crimes are as to the method and employed identify means in their execution does not serve to crime, person guilty guilt defendant as the of the unless his former, similarity latter crime be inferred from its showing where there is no evidence that defendant committed crime, person former and that no other could have committed crime, such an subsequent justifiable. inference is not 8. Same. a poisoning, physician, declarations of victim of former to his The powder he received a box of medicinal claimed to have contained used, mails, poison through are incompetent upon the trial charge subsequent poisoning person by another poison, through similar also received the mails. Handwriting 9. Same—Evidence as to at Common Law. common comparison handwriting might While under the law properly made documents purposes, between for other disputed writing, in order to determine whether the writer of the CRIMINA!, VOL. XVI. YORK REPORTS, STEW disputed paper, yet no also the writer of the other documents was merely comparison as a standard of document could be introduced disputed writing.

with the Same—Disputed Writing the Statutes. 10. Under “ ” any writing writing referred to the statutes disputed hand- genuine as the party upon a trial seeks to which one such, pro- not admitted to be writing any person, and which is under other rules of evidence. viding writing is not inadmissible Writings. Same—Comparison Requested 11. handwriting request Writings by the accused at made inwas inquest police authorities while expert retained sus- poisoning, while defendant progress upon a death under knowledge -being the murderer his own pected to arrest, as standards submissible testify but not under are subpoena to trial, handwriting upon the subsequent with comparison of at the feloniously having containing he is accused of poison which package through mails. sent the op Comparison. 12. Same—Rules as to Standards satis- to the “proved when genuineness writings The of which may writing, compared disputed with a of the court” be faction (1) by sought to be by person concession the be established purposes of the writing made at or for the charged disputed with the (2) standard trial, testimony; saw the by his or witnesses who or whom, written, sought to be hearing, person or in or to whose thereof; (3) writing or witnesses whose charged acknowledged the handwriting person claimed to have familiarity of the who is with the testify to a belief as to its enables them to written the standard (4) reputed showing that writer genuineness; or same, recognized or or that it has acquiesced has the standard by him his business transactions adopted upon and acted concerns. op Evidence in Civil Criminal Cases. 13. Same—Rule genuineness writing comparison for dis- In civil cases the with by a writings preponderance be established fair puted must beyond evidence, cases a reasonable doubt. and in criminal I, Constitution, Y. 11. 14. Same—Constitutional Law—IT. art. seo. 1888, authorizing comparison of a dis- The statutes of 1880 and puted handwriting any writing proved to the satisfaction of the genuine court to be are constitutional and are not in conflict with State, I, provides of the article section Constitution “ by jury trial in all cases in which it has been heretofore used shall remain inviolate forever.” Same—Rights Inquests. 15. at Witnesses witness, person inquest If who testifies at an does so simply as a rights testimony he has none of the or immunities of a party, and his B. V. ROLAND MOLINEUX.

THE PEOPLE indicted though he is afterwards him even against can used inquest. by the crime disclosed commission tried for the 16. Same. summing up attorney, district The fact suspected beginning from the jury, that he had corner’s stated to sus- crime, pretended but of the commission defendant not security, was state of O., into a to lull pect so as of evidence as to forbid the admission such a material error coroner. testimony given before defendant’s trial of the Sessions of General of the Court

Appeal from judgment rend- York, of Hew in and for the city county of the Peace defend- a verdict 16, 1900, convicting ered February of murder the first degree. ant of the crime far are stated opinion. so as material, facts, Battle Gordon Bartow S. Weeks, George John Milburn, G.

and H. Marshall, Snowden appellant. Hill B. A. District Philbin, Attorney (David

Eugene for respondent. counsel), counts forms and in several separate J. various

Werner, the crime herein defendant with indictment charges is that of murder in first The substance the charge degree. Adams while

defendant killed one Katharine J. engaged of one Harry commissionof a and the body felony upon against for this have been S. Cornish. The to employed agency charged which and a rare purpose cyanide mercury, deadly poison, mails the defendant said to have been sent through the lat- said Cornish it should be taken by with the intent that establish ter. Direct evidence was adduced the trial to upon mail a which con- the fact that Cornish received package administered tained and that he innocently cyanide mercury, to said Katharine J. Adams a of its contents, portion thereby which it is our her death. The questions duty causing legal to consider this cannot be discussed upon appeal intelligently and cir- without a clear facts understanding complicated HEW YOKE CBIMIEAL VOL. XVI. BEPOBTS, which eumstances seeks to sustain prosecution of conviction defendant. the effort to judgment against recital these facts and circumstances we shall simplify into the them several co-ordinate classify separate groups which without they reference their re- belong, chronological lation each and other, without the competency discussing the evidence which are claimed to have been established. they

The facts which bear the death of Kath immediately upon arine J. Adams and its cause are as follows: On the morning of December 1898, Oornish received mail a 24, through in which was found blue box package silver pale containing holder and a blue bottle “bromo seltzer” label bearing a filled with a seltzer.” powder be “bromo purporting bottle fitted into bottle holder. these Accompanying articles awas small of the kind in for in use envelope general cards are sent with There was card in closing no gifts. Cornish, envelope. some had person sent believing him a Christmas no card, recovered the outside gift finding which had been into wrapper package, thrown the waste and found basket, written it “Mr. Cor the address Harry nish, Knickerbocker Club, Athletic Madison Avenue and Forty- fifth Hew York St., He City.” cut, this address from tore, in his desk with the wrapper placed together envelope, bottle silver bottle holder. On the De day, following cember 25, who house Cornish, member hold of J. Adams, Katharine mentioned the of these receipt articles to the latter and her Mrs. and on daughter, Kodgers, the 27th December, 1898, he took home them with him and exhibited them to the same As a result persons. conversation which Cornish ensued, silver bottle presented Mrs. holder to who articles resembl Kodgers, toilet init Cornish the “bromo seltzer” placed bottle ing design. and on the dresser his room retired for On night. 28, next December Cornish arose morning, be shortly fore nine o’clock to the door for and went his paper. morning he the kitchen door observed Mrs. Adams with her passing

' THE PEOPLE V. B. MOLINEUX. ROLAND head informed and a few minutes later Mrs. bandaged Rodgers him for and asked Cornish that her mother had a headache home. Cornish some of the he had “bromo seltzer” brought with it, Mrs. who gave open bottle to attempted Rodgers out and to Cornish success, request she returned it thereupon him to do so. He after ing and, the bottle opened reading directions of the con he upon label, teaspoonful poured tents into a held Mrs. Adams and stirred it while she glass water the dose had poured it from another After upon glass.

been Mrs. As down Adams drank from it. she prepared put she of the mix commented taste glass peculiar ture, Cornish stuff is all whereupon remarked “why right” and swallowed a of what remained in the Mean portion glass.

while Mrs. Adams had started for and in less than the kitchen a minute Mrs. for called from the bathroom for Rodgers help Mrs. Adams. As Cornish arose from his chair, respond summons, knees went out from under him,” but an effort he succeeded in Mrs. Adams as she just reaching dropped the floor in a state of Cornish, un collapse. being able to lift Mrs. called a Mr. Adams, who daughter Hovey, was in the and carried Mrs. house, Adams to a together they couch in the room. Cornish dining despatched hallboy returned for his coat and. physician, hat, the bottle picked up from which the dose had been taken and ran to a neighboring who him “aromatic of ammonia” with di druggist gave spirits rections for it. Cornish returned to the house administering and Dr. Hitchcock followed him. The doctor closely hurried to Mrs. Adams who was her face hard, breathing overspread a dark blue evidence of pallor exhibiting great pain. measures were Restorative without employed avail, of Dr. who had Potter, the arrival also been sent for, Mrs. Adams was dead. the period between During elapsed dose and the death of Mrs. Adams, Cornish talcing had vomit. After the death trying Mrs. retching see Dr. Hitchcock went Cornish who Adams told him a dose of “bromo Mrs. Adams taken seltzer” REPORTS, CRIMIHAL VOL. XVI. HEW YORK handed the bottle to the doctor. Mrs. informed Dr. Rodgers Hitchcock that Cornish had taken some of the same stuff that Mrs. into the Adams had taken. The doctof put finger bottle it. He de and, some of the tasted extracting powder, tected the odor of is characteristic of the cy almonds which acid is the base. of which anogen group poisons, prussic ill the effect He to feel to counteract took began whisky the “bromo Dr.- Hitchcock took powder. then possession seltzer” address. He and bottle, silver bottle holder and the Cornish left the house and went to an undertaker. together There his home the doctor they separated, returning Cornish down Assistant District Attorney town to see going After him of Mrs. Adams’ death. McIntyre notify seeing friend named Yocum, Cornish called a McIntyre, upon personal ill and chemist noticed looked who that Cornish by profession, he was him a drink to take prevailed upon whiskey, of his not able to retain. Then to the office Cornish proceeded Rod Louis H. of Mrs. cousin, who was also cousin Cornish, of Mrs. and informed him Adams, gers, daughter Knickerbocker latter’s death. From thence Cornish went to the in Yocum’s Athletic where he down the bed Club, lay room. and return of his down town whole During trip Cornish had been marked ill, by frequent the journey being necessitated of his stomach the condition interruptions he for Dr. bowels. Soon after at the club house sent arriving who could and Dr. Coffin, not found Phillips, immediately, who to be in the club to see happened house, requested from his Cornish. He found Cornish in bed belching gas and his and stomach distended. stomach, bowels considerably and intermittent. There was no was weak patient’s pulse which the doctor He the case as odor recognized. diagnosed and rectal one of enteritis.” He sent for stomach “gastric Dr. arrived. The and while them tubes, Phillips waiting Cornish. The latter Coffin, treated doctors, two Phillips and ashen. He the appearance passed having was'pale officer illness. The first to arrive at the police through long PEOPLE B. THE V. BOLAND MOLINEHX.

Adams house was This Patrolman Palmer. the after noon of December 1898. From there he went to Dr. 28th, Hitchcock and holder “bromo seltzer” the bottle got bottle, and the address from he over taken These turned wrapper.

to Dr. Weston, the coroner’s The latter visited the physician.

Adams house and viewed the of Mrs. Adams. On the body December chief following day, 29th, 1898, Captain McClusky, of the detective bureau of Hew took York, police charge On investigation. the same Dr. an Weston day performed on the autopsy of Mrs. as a he body Adams, result of which later concluded that due death Mrs. Adams was which resulted poisoning from or one of its acid, hydrocyanic salts, which is produced combination of of mer cyanide with the cury of bromo seltzer. ingredients On following December day, 31st, Prof. 1898, Withaus, an expert chemist, made an analysis contents of the “bromo seltzer” bottle and later reported that it contained a mixture of bromo seltzer cyanide The same chemist also mercury. analyzed sediment from glass which the dose administered to Mrs. Adams, tasted had by Cornish, been taken. This was found to contain cyanide The of Mrs. mercury. organs Adams were also subjected to an examination analytical Prof. Withaus, which demonstrated that Mrs. Adams had died from mercuric A cyanide examination poisoning. pathological of these Dr. organs by disclosed of cor Ferguson the presence rosive which he poison described as acid, cyanogen prussic which is a poison from The resulting cyanide mercury.

death of Mrs. Adams and its immediate cause were, therefore, established. clearly logical narration of this orderly grewsome tragedy leads, to a consideration of

naturally next, the facts and cir- cumstances which are relied to con- upon by prosecution nect the defendant with the death of Mrs. Adams. We will first address ourselves to those which have no relation to hand- or to the commission of other crime than the writing any killing of Mrs. Adams. REPORTS, VOL. XVI. YORK CRIMINAL NEW had He age.

In 1898 the defendant years was thirty-one but sufficient knowledge not a liberal education, only general of Morris in the business to be the chemistry superintendent colors of dry manufacturers Hermann & who were Company, in this capacity had H. J. He Mewark, employed of colormaking had been in charge since and before that his father & of which firm of C. T. Company, Eaynolds at for two years had studied chemistry was a member. He and a well- chemical library, Union. He Cooper good chrome blue, contained Prussian laboratory, equipped arsenic and vermilion, mercury, yellow, English dry cyanide including chemicals from which various poisons, facts the these prosecution could be Erom mercury, produced. and means skill had the that defendant knowledge, argue killed Mrs. Adams. produce poison Athletic director in Knickerbocker Cornish was athletic 1896. since January, and had held this 1898, Club position its and of of the club a member At that time defendant was between difficulties arose 1896, house committee. January, French, of one and over the conduct the defendant Cornish followed in April, This was an member of the club. athletic under which was over an amateur circus given trouble 1897, by had of the arrange- Molineux of the club. charge auspices dis- and and Cornish because ments, complained ignored his instructions. had been Cornish superintendent obeyed Defendant com- of the club restaurant. the club manager and baths were not properly that the restaurant being plained thereafter réduced was conducted. Cornish’s authority of athletics. and the the club teams management training written the “Weefers” letter by Then came the trouble over the latter reflected and in which 1897, Cornish August, The de- of another athletic club. a director Weeks, Mr. letter, into of this requested come fendant, possession having to the attention of the house com- matter be brought that the dis- be that Cornish reprimanded mittee, suggested and then, was not with, This complied request charged. THE PEOPLE BOLAND B. MOLINEUX. V. efforts, defendant’s a dinner was to Mr. Weeks

through given Mr. stockholder by Ballantine, spirit leading principal in the club, at which various officials and the club were were present, tendered to Mr. Weeks. apologies Early in 1897, chairman of house committee, told Hughes, defendant that Cornish had said that defendant had made as a rumseller or money place questionable keeping Defendant repute. insisted that this matter, together grievances, investigated by the club. Some investiga- tion was made, but, as Cornish denied made the state- having ments attributed to him, no further action was The de- taken.

fendant continued to and mis- agitate alleged shortcomings deeds of Cornish until he told finally Adams, the secretary that if club, Cornish did not leave the club he would leave. Cornish was retained in the and on club, 20th, December the defendant After his resigned. and on the same resignation, the defendant and evening, Cornish on the met stairs of the club house. Cornish called the defendant a vile name and taunted him with his failure to procure Cornish’s discharge. Defendant’s resignation followed an letter explanatory from him to Adams, dated Secretary September 24th, 1897.

This was followed a letter from defendant to a Dr. Austen, a of tire “Weefers” letter and inclosing copy dwelling upon conduct Cornish. this, After in October, 1898, the defend- ant met one Heiles at the Hew York Club, Athletic told him of the “Weefers” letter and of the action of complained the board of the governors Knickerbocker Athletic Club. On this oc- casion the defendant referred to Cornish aas low, vile, bad man, of the latter’s spoke assertion that defendant had house. On kept disreputable Hovember 9th, 1898, the de- fendant wrote to friend Sheffler, inclosing copy letter and “Weefers” to the fact that referring “Cornish is in” and he out. These are the facts and circumstances nar- rated mere outline that are relied upon by prosecution

Yol. XVI—9 NEW YORK CRIMINAL VOL. XVI. REPORTS, defendant is said to have

as evidence of the motive which the life and of the intent with which had of Cornish against latter. As further bromo seltzer was sent to the poisoned was murder it defendant’s connection with this upon bearing in the that silver holder was contained shown bottle which 21st on the received Cornish been purchased package Newark, store at & Co.’s day December, 1898, Hartdegan from the factory N. was a short distance J., which only The de- Herrman & where the defendant was Co., employed. on that store fendant in the was seen vicinity Hartdegan said holder the clerk who made sale of the bottle but day, which The box the defendant not the man who it. bought box, bottle was a “Tiffany” contained the bottle and holder cards inclose was such as are used at envelope Tiffany’s at had an account which are sent with The defendant gifts. 1898. December, there made Tiffany’s, purchase except this particulars purchase There are no regarding The so-called poison pack- it in the stationery was department. office on the afternoon was mailed at the general post age for; an hour when was 23rd, customary at December on his return office district defendant the post York. from Newark New had been be observed that if the case

At this it will point the defendant that the crime which the theory only upon .tried of Mrs. Adams attempt had committed was the killing the next and final the case Cornish, step to poison the. con- have the defendant’s would prosecution of the address the poison with the nection handwriting as a theories But, theory part package. kill- with the to connect the defendant sought

the prosecution show offered and received to evidence was Adams, of Mrs. ing for the responsible previous killing the Knicker- who came to death at Barnet, of 0. one Henry November, house on the 10th of day Athletic Club bocker 1898.

THE PEOPLE V. BOLAHD MOLIHEUX. B. The case, facts and circumstances this branch death established at the trial, relate directly a of are Barnet, as follows: Barnet substantially of member of the for a number Knickerbocker Athletic Club and was years, was at the club house. Barnet living taken ill on the 28th first at- of 1898. He was day October, tended Dr. the same Phillips, who physician subsequently attended Cornish. Dr. Bamet on the attended Phillips only of his first and Dr. day illness, then took charge Douglass and attended on patient 10th, him until his death November 1898. In the death “cardiac certificate issued Dr. Douglass asthenia, caused was as the cause by diphtheria,” assigned Barnet’s death. Dr. was a box which was Douglass given found in Barnet’s room and to contain “Kutnow” purported and the powder, latter told the he had it former that received mail, had taken a of it, dose and he thought cause of his trouble. Barnet also told Dr. that he Phillips had taken a dose of “Kutnow” and ascribed his trouble powders to that. Dr. took of this box on Douglass possession November 4-th, it to P. gave Guy Ellison, chemist, who made a qualitative and concluded analysis that the “Kutnow” powder contained cyanide of The box was returned to Dr. mercury. with the

Douglass chemist’s as to its report contents, there- nurse of Barnet was charge directed to search for the wrapper. No was ever found. wrapper On the 3d day 1899, Dr. January, delivered to Douglass Captain McOlusky the box taken from Barnet’s room. On the 4th day January, 1899, Captain delivered McOlusky Prof. Withaus.

latter made an of its contents analysis and found it to contain “Kutnow” powder cyanide On the 28th mercury. day of February, 1899, the of Barnet was exhumed body at Green- wood cemetery, of Dr. presence Prof. Withaus, Douglass, Dr. Weston and others. Prof. Withaus made an analysis the liver, and kidneys and found organs body Dr. cyanide mercury. Loomis, made pathologist, post- mortem examination Bamet expressed opinion

132 XVI. HEW YOKE CEIMIKAL VOL. EEPOBTS, Dr, consulted who Smith, died from mercury. by poisoning was death, Barnet’s with Dr. on the day Douglass this cause of same Dr. testified opinion. Ferguson in that Dr. concurred death was and Potter cyanide mercury death assigned cause of The between the opinion. discrepancy conclusions and the of Dr. the death certificate Douglass Barnet’s organs which followed the of the deceased analyses is sought and contents of “Kutnow” powder-box, at that mercuric poisoning accounted by explanation and by certain develops diphtheria stages symptoms statement. not essential to this various matters which are established, therefore, clearly The death of Barnet was, if which, com- was evidence by cause thereof proved alleged mer- it was due to warrant conclusion that would petent, curic cyanide poison. have har- is said to

As motive which the defendant evidence Barnet, bored for the prosecution gave the killing was tended show that the defendant which, claimed, the woman with whom of Barnet’s attentions to jealous as was in love. In that behalf the 'facts, presented defendant are evidence, sustained tire prosecution part defend- In the summer of 1897 the follows: substantially Maine. His atten- Portland, at ant met Miss Oheeseborough continued marked, her, tions which were immediate the re- visit in Portland and were renewed after their during Hew defend- turn Miss York city. Oheeseborough of the Knickerbocker and Barnet were both members ant fall of friends. Athletic Olub and apparently good Barnet Miss presented Oheeseborough 1897 the defendant time latter lived House. At this at the Metropolitan Opera in Hew York city, the “Marie Antoinette” apartments house of Mrs. Bell few she took a room the but in a weeks York where she remained Hew street, city, at Ho. 75thW. 1898. At this point chronology until January, cer- Miss Oheeseborough relations between which was tain was introduced prosecution THE PEOPLE V. BOLAHD B. MOLIHBUX. but court,

afterwards ordered stricken from the record narrative purpose continuity preserving have of this branch of the and certain case, because questions here been inserted raised will be this evidence, concerning Green, as it had remained in record. One Eaehel though a street, colored woman who 251 75th was at No. W. employed that from testified 1898, November 2nd, 1897, 1st, to Hay when she Hiss Cheese- went to this house in November, and to identify a man was whom she she able borough thought as the names defendant under the the same room occupied she Hr. and Hrs. time only that Cheeseborough, ever an heard name was on mentioned there Holineux occasion when addressed to came from a store parcel drug that name. This in January, witness further testified that 1898, the Bell to- left the house of Hrs. “Cheeseboroughs” care gether. William and took Williams, who washed windows furnace at the house of Hrs. Bell in from 75th street autumn of 1897 from the witness stand Hay, 1898, pointed on defendant a man whom he had at Bell’s seen Hrs. several occasions. He testi- further and more gave explicit mony was subject but that stricken out as hearsay.

Hinnie another Betts, colored testified that she lived woman, with Hrs. at End Bellinger West that avenue, Hiss January, 1898, Cheeseborough came live there and re- mained until June, when she went for the and re- away summer turned the fall. This witness testified that first time she ever heard the name Holineux was about a week before the defendant and Hiss were in No- Cheeseborough married, 1898. This vember, witness also described man, not the de- who called fendant, on Hiss frequently at Hrs. Cheeseborough house. her examination Bellinger’s During this witness shown a card and a which were visiting used in photograph connection with name of Barnet in such a as to leave way no doubt the minds of jury that caller whom she had to describe was in fact Barnet. The trying defendant testified, himself at the coroner’s inquest upon the death of Hrs. REPORTS, VOL. XVI. HEW CRIMINAL YORK her took Barnet Miss Cheeseborough, that called

Adams, sent of amusement theatres and dinners, places an entertainment her occasion she went to flowers. On one as the Athletic Club guest the Knickerbocker given by visited number who there was one Bamet, and while on The defendant says Barnet’s room and drank wine. at the occasion referred escorted Miss Cheeseborough to Barnet his he proposed admitted that request. of 1897, Miss in the winter marriage Cheeseborough Three or four before days offer had been declined. him a letter express- Barnet’s death Miss wrote Cheeseborough conched her his This letter was solicitude over illness. ing inferred there could be that' easily from which it language and an attachment existed between Miss Bamet Cheeseborough defendant, than The mere friendship. stronger platonic of learned the stated that when he coroner, before testifying Miss Barnet’s he the fact Cheese- illness communicated and that the latter should it was between them borough agreed he also send Barnet some flowers. The defendant asserted that he the flowers assumed that himself, and, bought although knew of the card or letter would sent he never them, be with 10th, above died 1898. letter referred to. Bamet ISTovember a friend with About two weeks later the defendant wrote to whom he had to take tea on the expected following Sunday ro- excused sudden and because evening, asking on mantic to be married Tuesday. succeeding engagement On 29th nineteen after Bar- 1898, ISTovember, days day net’s defendant Miss were mar- death, the Cheeseborough ried. relations From this upon alleged hearing it is con- the defendant and Bamet to Miss Cheeseborough was jealous tended prosecution favor with which the latter’s Bamet because of the apparent Miss and that attentions had been received by Cheeseborough which this of the motive was the mainspring prompted Barnet. killing B. MOLINEUX. V. ROLAND

THE PEOPLE estab- conclusively facts which outline of foregoing Adams, respectively, lish death and Mrs. of Barnet of the circum- tend thereof, which cause defendant there- stances which connect the are relied a consideration with, next, leads naturally us, said to bear upon related facts and which are circumstances de- address handwriting poison package and Mrs. fendant’s Barnet connection the murder of both Adams. box and its cor

We will first the “Barnet” letter consider testified, substance, Heckmann One Nicholas respondence.

that in for rent at No. he letter May, 1898, boxes private kept 257 W. 42nd 27th, York On street, Friday, Máy New city. to his o’clock, after six the defendant came shortly place

and rented a letter box in the name of II. Barnet. Defend G.

ant was box called ticket for 217. Defendant about given times after to him that and witness delivered twenty mail addressed Barnet, to H. C. nature of which general was medicine various kinds. One patent package described as marked “Kutnow and another being powder” “ Mohl’s Von Oalthos.” The witness a box identified to box in came 217 some time June, 1898, but never called for and was delivered to the district who attorney, procured to be Inte in the summer of the real analyzed. that H. 0. year Barnet received in mail, at his office the Produce through a box marked “Oalthos” a number Exchange, containing capsules. medicine this name was pink advertised bearing as a for A similar remedy was found impotence. in package desk Barnet’s after his death. Some of the mail addressed to 217 was for. this box never called Part of it consisted of four letters, of three which bore envelopes office post box of Von Co., number Mohl & Detroit, fourth of bore the number which officebox of Dr. post Fowler, Moodus, 58, Oonn. These were marked 62 in 61, and 63 the so-called series.' Nine letters communications were prime written name in of H. 0. Barnet. These, with five “Bar- together REPORTS, NEW YORK CRIMINAL XVI. VOL. and are

net” so-called “Barnet” series envelopes,, comprise Q re marked and R P, B, B, C, F, H, I, J, K, M, FT, O, im for “B” is an order for Dr. specific spectively. Rudolphe’s “B” 1898, received Dr. Fowler June 1st, potence, by is the in is a letter which it was mailed. “C” envelope one for Marston 1898, dated Co., 31st, writing Remedy May is a letter month’s treatment “F” for the same trouble. for Cameron & June 1st, 1898, asking received them Co., “H” and “J” in it was mailed. “Book,” is the envelope 6th, 1898, is a letter & them June Co., to Marston received by in which for and “K” is the envelope asking marriage guide, sent it was mailed. “F’ blank” is the so-called “diagnosis Marston & Co. in for marriage guide, answer to request June, 1898, or 5th of returned to & Co. on the 4th Marston are said answers which the name of but filled with Barnet, “M” is and not Barnet. describe the defendant accurately 1st, 1898, a letter to Von Mohl & them June Co., received-by “five and “FT” is the treatment,” envelope requesting days’ which it was mailed. “O” is a letter to the Remedy “Sterling for “Book.” Co.,” 6th, 1898, received them June asking “P” is a letter to B. written about Marshall, Mich., G. Wright, and “R” is the 1898, envelope June 1st, prescription, asking none in which it was mailed. be noted It passing reference any of these “Barnet” letters contain any powder used, was used so far could be or, or substance which as appears, or in of, the administration with, poison by mixing have been killed. which Barnet and Mrs. Adams are alleged come letter box and the We nów “Cornish” correspond- ence in the name of Cornish. One J. J. Koch testified written he had for five conducted December, years under the name of the letter box at Broadway agency He was also the “Studio proprietor' Commercial Co. which name an was Co.,” under advertising agency Publishing date of December 31st, at the same Under conducted place. his secretary, Allen, Mr. wrote 1897, through defendant^ Hermann of Morris & Co. to the business stationery upon THE PEOPLE V. B. ROLAND MOLINEUX.

Studio Co. for a of the paper. Publishing sample copy Koch sent circular July, 1898, to defendant a printed which attention was called to the letter box agency private in connec- was conducted at being Broadway, Ho. tion of Decem- with the business. the week advertising During ber rent- 12, 1898, the defendant made of Koch about inquiry letter for on that ing private box a friend. Ho box was rented On day. December rented not 21, 1898, man, a box was defendant, under the name of H. Four Cornish. pieces mail were received at this box addressed to “H. Cornish.” One was a a cir- box of “Kutnow” The second was sample powder.

cular letter from Von Mohl & Co. box The third was sample of “Calthos,” manufactured Von Mohl & Co. Koch testi- by fied that mistake all of these were in a different box by placed than that to H. Cornish and remained in assigned the wrong box until 14th, 1899, when Koch delivered them to January Captain The fourth McClusky. was a letter the name bearing of Frederick Stearns & Co., Detroit, Mich., envelope.

This was seen Koch and It placed “Cornish” box. there not on 14th, when January the others above

referred to were delivered to It was Captain called McClusky. some unknown the absence of Koch. person The dis- of this

covery “Cornish” mail led to as the re- investigations sult of which Exhibits “D,” “E” and “G,” written in the name of “Cornish” came into the hands of the authorities. police Exhibit “D” is a letter “II. signed Cornish,” addressed to Fred- erick Stearns & Co., Detroit, Mich., and received firm December 24th, 1898, in substance that one stating A. A. had

Harpster applied writer for a position collector a line to be sent to 1620 requesting reply Broadway, Hew York At this city. point stated that Harpster was a man who had been in the formerly of Stearns employment & Co., subsequently at the employed Knicker- Club, bocker Athletic where he was very friendly Cornish and had incurred the ill-will of the defendant because of his ad- herence Cornish the difficulties between the latter and NEW YORK CRIMINAL VOL. XVI. REPORTS, “ ”

defendant. At the time the Cornish letter was written Stearns & Co. Co., was & Ballantine Harpster by employed and had not one for the of collector. applied any position this feature of Upon October, the case it also that in appeared 1898, the defendant met one Heiles who had been employed at the Knickerbocker Athletic when Barnet, Club at the time Cornish, Harpster the defendant were all connected with it. At that time the defendant Heiles requested arrange have a letter written to & for information Stearns Co., asking regarding Harpster. The defendant to Heiles that explained for which purpose he wished letter was to to use this pro- cure Harpster’s if & Co. should from Stearns discharge reply be suitable for that Heiles did to have purpose. arrange such a letter written about re- October, 1898, reply ceived which was who showed it to the defend- given Heiles, ant. The defendant said he was too then, to look at it busy and told Heiles to it. Heiles the letter until keep after kept the arrest of the when he defendant, it. “Exhibit destroyed E” is a letter “H. Cornish,” received signed “Kutnow by Bros.” December 22nd, that a requesting sample of salts be sent to 1620 New York Broadway, city. Exhibit “G” is a letter “H. Cornish,” received signed “Yon Mohl & by Co.,” the manufacturers of “Calthos,” said firm to requesting send “five trial” to 1620 days’ New York Broadway, This city. letter was received from Yon Mohl & Co. Witte, assistant chief of police Cincinnati, him turned over to Cap- tain Each these three MeClusky. letters, Exhibits “D,” “E” and was written “G,” peculiar paper “egg-blue” tint, “tri-crescent emblem.” The same kind bearing of paper was used the so-called “Burns” letter which was (Exhbit for. 2), received June 1st, 1898, one Agnes Evans, Dr. acting James who was Burns, to “send requested to Roland remedy” street, Molineux, Newark, N. J. The Jersey defendant admits written the “Burns” letter. this having connection it is to refer to the evidence of proper Melando, the forewoman Mary Hermann & at Co.’s N. J. Newark, She took factory care B. MOLINEUX.

THE PEOPLE V. ROLAND shown she was rooms. the trial of the defendant’s Upon “Exhibit'2.” She and “E” and “D,” Exhibits “G-” People’s of the sideboard in the drawer said she had seen like that paper saw in She about the defendant’s room at the Newark factory. took The witness

a half dozen as late as 1898. October, sheets three three of for her own use and left about sheets this paper in in It also sheets of it the drawer of the sideboard. appears the case like was on sale at four large this paper and at two stores stores New York department city & Newark, Co., N. at one of that of Plumb J., which, firm of Hermann & Co. had an writ- account. foregoing' called letters, the “Barnet” letters and the “Cornish” ings, were used in of the case for the avowed connecting purpose defendant with the murder of Mrs. Adams. As a part theories which these were admitted theory writings evidence of certain or conceded genuine proved writings of Cornish the “real” Barnet and of the “real” defendant, were received in evidénce.

This us to a statement that branch brings which the claims to have established the cul- prosecution that the defendant was the writer of the ad- proof minating dress received Cornish. (Ex. A) upon poison package The evidence subject handwriting proceeds along several distinct lines, of each will be stated history 29th On the after December, 1898, separately. day day Mrs. Adams’ one of the New York death, newspapers city was called what simile of the published poison package fac address. It is known the case as defendant’s “Exhibit 12.” This was seen John D. Adams, Andre secretary, of the Knickerbocker Athletic Club. Bustanoby, superintendent this Mr. Adams found some letters in the hand- After seeing were on of the defendant which tire files of the club. writing were shown to Both men were familiar These Bustanoby. and were struck with the re-

the defendant’s handwriting, A,” between “Exhibit poison address, semblance package 12,” On December 30th, and “Exhibit newspaper copy. NEW YORK CRIMINAL VOL. XVI. REPORTS, Adams 12 and a number of

1898, shewed Oornish Exhibit the defendant’s down. letters with the turned Among signatures the latter were Exhibits 22 and which are 20, 21, part the series of defendant’s conceded As result handwritings. this interview Cornish McClusky. telephoned Captain Adams A” was testified that “Exhibit Bustanoby the defendant. One who had handwriting Martin, ¡N". ¡National teller of the J., Essex Bank of ¡Newark, County where the defendant had an said he had known account, latter’s four from his and, signature years knowledge thereof, as well as his in scrutin- and experience comparing on he concluded that the “Exhibit izing handwritings, writing A” was that of the defendant. These three are the wit- only nesses who testified to a belief that the defendant was the writer of the address of the based poison package, upon personal of defendant’s knowledge handwriting.

We now come to the of in testimony handwriting. experts This fills so in the and the conclusions large space record, arrived at are based so and different even upon many divergent points theories, that it would to be practically impossible refer to this branch of the case detail. It un- is, moreover, for our to do more than to refer .to the necessary purposes methods which the conclusions upon of the experts handwriting are in order based, to decide whether error was committed this branch of the case. There were fourteen of experts, whom nine were men who made the study handwriting profession, five held various remaining positions banks which an required expert knowledge signatures. They were all that the defendant wrote the address agreed of tbe For wrapper poison package. purpose arriving at these conclusions were use, they permitted upon, rely all of the several which have been referred writings statement. These be classified as fol- foregoing writings may “A,” lows: 1. Exhibit known as the address. poison package 2. The so-called “Barnet” letters written in the name of H. 0. Barnet. '3. The so-called “Oornish” letters written the name B. MOLINEUX. ROLAND PEOPLE V.

THE “A,” of Exhibits consist All of these together Cornish. of H. 4. exhibits. lettered known as the and are inclusive,

to “R” known are defendant of the handwritings conceded in- “63” “1” to Exhibits consist of exhibits the numbered “re- so-called include the exhibits These numbered clusive. ” have conceded and letters quest writings writings,” of the “request him. The history been written by 1899, of February, that on the 17th is, day stated, briefly wrote department, at the defendant, police request Assistant in the presence the office the district attorney, counsel, defendant’s Weeks, Mr. District Osborne, Attorney and Car- Kinsley and the experts Police McCafferty, Sergeant consist of have these writings valho. It had been planned and other address “A”) copies poison (Exhibit package from have been made type- which were to case, papers him sent and by written memoranda Kinsley prepared by same, mislaid the Kinsley Mr. Osborne. The latter having The result from and the defendant wrote. dictated memory de- and at his was not to Mr. Kinsley request satisfactory called at the office Weeks, with his Mr. fendant, counsel, and there wrote on the 20th of February, Kinsley day 9 and 10. For Exhibits 3, 4, 6, 7, 8, “request writings,” of omitted from the state- the sake we have foregoing brevity besides those evidence, ment details of fact relating many because are not essential to the of subject handwriting, they in to the of the principal questions proper disposition legal same we will refrain from the case. For the reason discussing of error the defendant, of the minor many grounds assigned numerous and diversified that a consideration of which are so seriatim, would serve to becloud the and more them, only larger to our are de- which, views, comprehensive questions according cisive of the case.

First if not is the order, whether importance, question admissible evidence was any concerning alleged killing Bamet. This be considered without question referring of the defense because specific objections exceptions

142 REPORTS, NEW YORK CRIMINAL VOL. XVI.

it was raised so often and in so that it would in- many ways volve reiteration and to dwell each profitless prolixity upon objection exception.

As has been disclosed of facts, statement foregoing evidence was received the trial connect the upon tending defendant with the felonious for the of'Barnet, killing purpose Mrs. Adams, crime proving guilt poisoning which was the offense in the indictment. The charged gen eral rule to criminal trials is that applicable state cannot a defendant crime not prove against any alleged in the indictment, either as a foundation for a separate punish or as ment, that he is of the crime aiding proofs guilty New Crim. Pro. sec. 1120. charged. Bishop’s rule, This so and so in all universally established recognized firmly lands, rooted for the English-speaking jealous regard of the individual which has liberty our juris distinguished from all prudence at least others, from birth Magna It is Oharta. of that same humane and product enlightened public spirit which, our common has de speaking through law, creed that with the commission a crime every person charged shall be has protected by innocence until he presumption This proven guilty beyond rule, reasonable doubt. the reasons are rests, so familiar to student every of our law that need be referred to for- no other they purpose than to out the thereto. The rule itself has point exceptions been stated and discussed this court in a of cases, number hut we will cite few. v. N. Y. only People Sharp, it was said: “The rule is that when a man is general put for one trial offense he is to he if evi convicted, all, at dence which shows he of that offense alone, guilty that, circumstances, under of his of one or ordinary proof guilt a score of other offenses his lifetime is excluded.” wholly In Coleman v. 55 Y. 81, N. it is laid down as People, follows: “The rule is evidence of another general against receiving offense. A cannot he convicted of one offense person upon proof that he committed however another, a moral persuasive point

THE PEOPLE V. B. MOLINBUX. BOLAND a of view such evidence easier to believe be. It would be may hé had com of one crime if it known that person guilty char mitted another a similar character, or, indeed, any is but the rule in courts of acter; injustice justice such a It would lead to apparent. convictions, upon particular made, of other acts in no connected charge by proof way and to con it, evidence of several offenses to uniting produce viction for a N. Y. 78, one.” In v. Shea, single People is rule thus stated: “The impropriety giving crimes the accused had of other showing been guilty for the his merely purpose thereby inferring guilt crime for which he is on assumed trial be said to have been may maintained ever since courts consistently English the common law has itself existence. Two antagon istic methods for the and the judicial of crime investigation conduct of criminal trials have One existed for many years.

of these methods favors this kind of evidence order that tribunal which is in the trial of have the accused engaged the benefit of the to be derived from a record of his whole light his past life, tendencies, his his his nature, associates, prae tices, and in fine all the facts which to make the life of a go up human This is the being. method which is in France, pursued isit claimed that entire is justice more to be done where apt such a course is than where pursued it omitted. The common law of has England, however, and so far as another, adopted accused is party concerned, much more merciful doctrine. that law the By criminal is to be innocent his presumed until guilt made to appear beyond reasonable doubt to a jury twelve men. In order to his is not prove guilt permitted to show his former character or to of other guilt crimes, for the merely purpose raising presumption he who would commit them would be more commit apt crime in question.” court of Massachusetts has highest said: “The objections the admission of evidence as to other whether transactions, to indictable crimes or not, amounting are very apparent. Such evidence the defendant compels

144 VOL. XVI. SEW YOBK OBIMIHAL BBPOBTS, him no informa- meet of which the indictment gives charges issues, him in raises a confuses tion, offense, variety immediately thus from the one diverts the attention of the jury a knave have before the defendant to it, by showing injus- on cause creates a occasions, prejudice 132 Mass. tice to be v. Jackson, done him.” Commonwealth 16. states The court of thus last resort Pennsylvania rule: crime unconnected “It rule that a distinct general in evidence with that laid in the indictment cannot be given raise a It not against prisoner. proper presumption on crime, committed one guilt ground having commit another. it exhibits makes it he would depravity likely is not offense the commission of an Logically, independent Yet itself of of another crime. the commission proof for cer- cannot be said to be without influence on the mind, if one be shown of another crime tainly equally guilty it will a more that he heinous, belief prompt ready might have it, committed the one with which he is there- charged; fore, the-mind of the to believe the predisposes juror prisoner Shaffer v. Pa. 60. St. guilty.” Commonwealth, to the rule cannot exceptions be stated with categorical of other crimes is precision. Generally speaking, crime when it specific tends competent charged motive; to establish of mis intent; (1) (2) (3) absence take or a common scheme accident; (4) plan embracing commission of two or more crimes so related to each other of one tends to establish the proof others; (5) identity with the commission of the crime person charged on trial. Wharton on Crim. Ev. 9th sec. ed., 48; Underhill on Ev. sec. Abbott’s Trial 58; Brief, Trials, Crim. sec. 598.

Let us now endeavor to to the case each at bar of these apply rule. exceptions general As

First. to motive. criminal It is obvious that trial when every proof motive is an essential of the evidence ingredient against motive to be established is in- the one which defendant, B. MOLINBTJX. THE PEOPLE V. BOLAND duced This is too the commission of the crime charged. for would be sanction discussion. To hold otherwise to

simple an the violation under of excep- of the rule the general guise tion to the it. What was the motive defendant’s assigned to kill ? alleged Hatred, by quar- Cornish attempt engendered rels of which, between in no them, which Barnet took part, so far as the was record he had no What shows, knowledge.

the motive which to is said to have the defendant moved kill Barnet ? caused the latter’s intervention Jealousy the love affair of of the former. mere statement these two motives each suffices to that have show no relation they other and that the evidence which tends the killing of Barnet throws no which actuated the motive light upon the attempt the of indeed, life Cornish. upon So apparent, is this of motive in the cases learned diversity two that the counsel for the People herein abandoned argument the claim that there was in common between them anything to create a ingeniously sought motive out of single the defendant of alleged forgeries by names Barnet Cornish. Of course no inference can be drawn from these al- leged without that “Cor- forgeries the “Barnet” and assuming nish” letters were all received in evidence and properly proven to have been written the defendant. as- will, therefore, We sume that all of these letters were properly evidence, that therefore, were written they defendant, was, that he crime of guilty in the use of each names. forgery these Is there anything any Barnet letters which sheds a ray question of motive for the kill light attempt Cornish? a word. Hot We are at a loss to understand what force there is in the probative “Barnet” letters which does not also inhere in the “Cornish” letters. If the “Barnet” letters so were were “Cornish” forged, letters. If the latter bore no intrinsic evidence motive life of against Cornish this true of former. It will thus equally be seen that under no no can hypothesis, upon assumption, “Barnet” letters

Yol. XVI—10 VOL. XVI. YORK REPORTS, NEW CRIMINAL for the at motive held 'to evidence as to the contain any “Cor found to kill that is not also to be Cornish

tempt letters the “Barnet” nish” letters. has been said about What of Bar- killing is true all the evidence alleged relating commission if net. Even it be admitted it proves it it, motive behind an crime with an adequate independent bar. case at of motive subject contributes nothing authorities support cite it seems Although unnecessary is to be established motive statement whenever we will crime must be the motive which underlies the charged, In Pier rule. refer to a few cases which illustrate briefly with was son v. Y. defendant 424, charged 79 N. the People, de was defendant’s the murder of The motive one W. alleged evidence trial sire to deceased. On the the wife the possess of W. death was after the days received to show that eleven before the of the deceased defendant and the wife appeared took there to married. Defendant clergyman Michigan Al the marriage. an oath there no objection was legal commission, this evidence tended to though prove was on for which he defendant, of another crime than that this evidence trial, said, prove court “this tended desire to motive which was the operated prisoner so her was wife; absorbing W.’s that his possess passion that he was standing determined to overcome all obstacles 132, In v. 4 Crim. Cas. Stout Park. People, way.” was received crime was murder. On the trial evidence charged and his of an the defendant incestuous connection between This held to be sister, the wife of the deceased. was competent for it crime, even if did of another the commission tended the defendant to disclose the motive prompted v. Ala. 37, rid In of the deceased. Hawes People, get the defendant trial for murder of one his children. was on Two him for the other indictments were then against pending murder of his and another child. Evidence was received wife that 'the motive for the of all the theory killing support for a which was con- was to second way marriage, open THE PEOPLE V. BOLAND B. MOLINEUX.

sumniated a This was held few after the last death. days In because the motive was the same each case. proper, v. was accused Harris, 136 N. Y. the defendant People of the murder of secretly his wife. The had been marriage performed. Evidence his wife abortions, performed upon defendant, were held to defend be admissible to show ant’s efforts to and as keep secret, tending marriage show a motive for the of the wife when was secrecy poisoning no longer burdensome. possible So, alliance had become on the trial a husband for of his wife, the murder of criminal for failure'to proceedings defendant against support his family, made ten months before the murder, held properly admissible motive. question People v. 4Otto, N. Y. Crim. 149. another case the defendant was with the murder charged of his The brother, brother’s wife.

his wife and two children were poisoned arsenic.

brother and his wife died, but the the lives of attempt upon the children failed. Thereupon him procured self to be appointed his brother’s children and guardian then commenced to create and utter various false and forged claims his brother’s against estate. The theory prosecu tion was that the defendant coveted his brother’s and in estate, order to gain of it conceived possession to murder plan ^ those who stood his way; failing kill attempt the children, he attempted accomplish object by forgery.

It was held that evidence was received of properly all the crimes involved in this as theory, it was relevant the ex istence motive the commission of the crime charged. v. 3

People Wood, Park. this Crim. 681. Rep. Cases of character be might multiplied indefinitely, but have enough been cited to show that when evidence of extraneous crimes has been held competent existence motive, has been either the motive specific which underlay particular crime aor motive common to all of charged, the crimes sought to be proved.

148 BEPOBTS, XVI. VOL. NEW YOBIC OBIMINAL

Second. As to intent. not infrequently motive are In the mind intent popular is a clear law there In same one and the thing. regarded power is the moving Motive distinction between them. is the purpose Intent a definite result. to action for impels aWhen crime result. such to use a means effect particular charged a committed by person is to have been clearly proven im or no of little be of motive therewith, question com essential to is always But criminal intent portance. bemay in which intent mission of crime. are cases There . where There are others from nature of the act. inferred before or must be proved willful intent knowledge guilty rule of the latter Familiar illustrations conviction can be had. counterfeit money, forgery, are found in cases of be passing false pre under money stolen obtaining receiving property instance, in a An innocent pass tenses. man may, single essence intent is Therefore, counterfeit coin or bill. of a similar character offenses crime, previous to show intent. Commonwealth the same person may proved v. 8 Metc. 132 Mass. Jackson, 16; v. Commonwealth Bigelow, 1 H. Held, 4 In re C. 43; v. Metc. 235; Stone, Commonwealth R. Coffee, R. In re 1 C. H. 49; In re C. H. 46; Smith, R. where 4 C. H. 166. So in case In re R. 52; Dougherty, stolen received property, charged having and scienter is the of the offense knowledge gravamen guilty acts. Commonwealth similar previous bemay proven by Y. v. N. 293; 133 Pa. St. Coleman People, v. Johnson, 56 N. Y. v. 591; McClure, v. 555; People Copperman People, ev checks, etc., Y. 95. cases of 148 N. alleged forgery at near to show that or the same time idence admissible indictment fas instrument described forged that the or had in his the defendant possession, uttered passed, intent. Com instruments, as it tends to prove similar forged v. Russell, 196; v. Mass. Everhardt, monwealth People Rex v. 15 Cox. Crim. Cas. 92. 591; 104 N. Y. Colclough, On the of indictment for false trial an obtaining goods by THE PEOPLE V. BOLAND B. MOLINEUX. defend similar made by

representations, representations pur been ant creditors from whom previously goods Mayer chased him held admissible intent. were by re crimes 364. that the v. 80 N. Y. It will be seen People, in which ferred to head distinct classes under this constitute intent is be inferred the commission not to from except unobtainable act intent often proof act. evidence of successive repetitions killing The intent ascribed the defendant alleged of Mrs. kill This is Adams was to Cornish. precisely same the particu- he had succeeded in though committing lar crime If kill B, he had A undertakes planned. a murder kills the crime is no less attempt committed C,

than it would been if killed. agency have B had been Cornsh was employed cyanide encompass death on mercury, so rare and it is not poison kept deadly are sale places where arsenic and other strychnine, poisons sold. It was in an called “bromo effervescent salt disguised seltzer” which is a much used headache and remedy human ills. The trifling bottle this mixture was containing carefully to create the prepared it contained impression but the harmless nothing “bromo seltzer.” It was accompanied a silver bottle ojE holder into which bottle fitted. Both these articles were inclosed in a box of the kind used An sending gifts. card empty added to create envelope it impression that was a and that- the sender gift, had for- to inclose his card. gotten It was sent mail on eve of Christmas when, to the universal according custom of this country, are gifts this exchanged manner, when even the most cautious and prudent have taken person might counsel of his rather than his generosity Could suspicions. such foul and devised act cunningly have ? done innocently Could proof number of any repetitions this act add any- thing conclusive inference of criminal intent which proof of the act itself affords? Can it that in possible the face of such indicia of irrefragable murderous intent still neces- VOL. .XVI. STEW YOKE OBIMIKAL BEPOBTS, crimes commission of other -similar to proper prove

sary answers. their own intent? carry establish These questions this, an as then If intent not be from such act inferred ma.y character there is no as inference of intent from the such thing of which evidence the act. us this to be a case Let suppose of the from felonious intent could be derived proof properly similar crimes. commission, other defendant, extran- the establishment supposition necessarily implies it can be eous before crime, evidence, by legal competent referred that it proves guilty support theory shall with We intent which the crime was committed. charged essential is have occasion show cardinal further on that this of Barnet, the evidence which relates to death lacking which con- that there is no in the case evidence competent to Bamet. nects the defendant with the poison sending ¿hat But is competent there assuming, present purposes, evidence the sender which tends to show that the defendant how of poison in both does the poison instances, sending to Barnet was sent to with which the prove intent poison ? Cornish It is to be we are now dealing remembered that rebuttal of intent and not with subject of solely is also to mistake or this connection it possible accident. be borne mind that practice receiving other intent in cases of counterfeit offenses, passing etc., is of criminal from the usual rules money, departure nature of evidence, and necessitated justified peculiar these crimes. A man counterfeit money. may innocently pass For this reason acts the same evidence of similar per- son, not received establish intent. although conclusive, may It another, is "true that a but person may innocently poison will be discussed under the head possibility appropriate mistake. accident and these factors from latter Eliminating cau such as there be no innocent inquiry, thing poisoning. We have, then, two cases of and distinct separate poisoning as two cases of it be successfully Could shooting. urged of one another could be to show shooting person by proved V. B. MOLINEUX. THE PEOPLE ROLAND dif- at a shot a third person with which the latter the intent unless not, and for a distinct cause? Certainly ferent time were so connected the two were also established that shootings one com- and as to make part circumstance them time, place dis- also be further mon or The latter will subject plan design. head. the length

cussed under its Throughout appropriate Barnet there breadth of to the death of the testimony relating not a or a fact which throws any light upon suggestion or which Cornish, intent with which the was sent to poison which serves intent or the inferences support strengthen de- be drawn from the evidence to show that may tending fendant sent the to Cornish. poison

Third. As or doubt accident, to the of mistake or possibility as to the cause of death. are

There cases which the defense possible probable accident or mistake rebutted the direct case may inor which the doubtful cause of the prosecution; particular death be established similar deaths. As previous most of are these cases are of interest poisoning they special and importance here. The fact that the earlier English reports are more in such illustrations than all of our modern prolific reports medical probably explained by great progress science which has not reduced the number of only materially deaths from mistake or but has accident, poisoning practi- annihilated the of death from so subtle cally possibility poisons In obscure as to baffle v. Gardner investigation. Regina 3 Foster & Finl. had Wife, 681, Gardner prisoner his former wife died in married, March, previously 1861. Prior date his second wife had to that been a servant mother resided house. with him after prisoner’s The mother’s death occurred in Decem- the second marriage. she and it was died from arsenical

ber, 1861, clearly proved who dealt also sold arsenic for Gardner, milk, poisoning. There was evidence of the administra-

agricultural purposes. of articles of deceased, diet in tion, by prisoner, and of the be concealed symptoms which arsenic might VOL. XVI. YOBK CRIMINAL BEBOBTS, NEW was also evidence followed. there But poisoning had been to Gardner, poi three one of them horses, belonging whom of his customers arsenic, against soned and that some of arsenical poi symptoms he harbored no ill-will had shown of the poison administration To the willful soning. it was accident, and to rebut the mother, theory Gardner’s of his held evidence as to the circumstances to receive proper Crim. Cas. Cotton, v. 12 Cox’s former wife’s death. Regina her stepchild, defendant was poisoning charged for her bene the son was insured of her deceased who husband, attended by fit. child had been before death the Shortly acid and had who parish doctor, prescribed morphia, prussic doctor that bismuth in It was shown medicinal doses. on arsenic bottles bismuth and kept prussic acid, separate of sub-carbonate same shelf. The was in the form bismuth was adulterated of the doctor sometimes which, said, bismuth, also with minute It arsenic, appeared but only quantities. of soft death of child mixture soap before the shortly and from used for four to six drachms arsenic There and certain of the house. was furniture cleansing parts show this mixture was dried to that when testimony tending the arsenic, to the air it would release by exposure particles float three hundred which would about amounting grains, in the room and could be inhaled and into the system absorbed means of not stomach. Under but lungs, through these circumstances evidence was offered prosecution received court to show that two other children of the defendant and one had died within a Mattrass, a few lodger, with months each other arsenical symptoms poisoning; that their bodies had been exhumed and arsenic had been found each of The was them. evidence received on organs v. 18 L. J. Cas. 215, of Regina Geering, Mag. authority was where the defendant tried for the of her husband, murder the cause of whose death was not free from Three doubt. sons had died all same time, at about same exhibiting symp The held that evidence of the three toms. court deaths B. MOLINBUX. THE PEOPLE V. BOLAND due to arsenical poisoning, was to show that all were competent enable and the was admissible domestic of the family history accidental was whether the determine jury poisoning de 40, not. In Cas. v. 14 Cox’s Crim. Heesom, Regina poison of her child by fendant was with the murder charged her mother by on October and also with the murder 3, 1877, indicted was same means on She 5, November 1877. both of her child offenses. On the for the murder trial was her mother received to she had show that poisoned held another of the accused her children. It appeared The insurance victims. the lives of the three alleged after as to the two court,' some admitted evidence hesitation, v. previous deaths, authority, citing Regina Geering “ have If I would there had been no case on the saying, point but received; consider whether the evidence could paused satisfied, after the decision I am quoted quite I have no doubt that it is show that the death competent the child was not due of arsenic.” to the accidental taking Mackin v. Wales, of New South 17 Cox’s Attorney-General “ Cas. farm,” Crim. who defendant, baby kept indicted for the murder infant, of an Horace Murray. child was found buried in a attached to defend

Murray garden ant’s house. The bodies of other children were found buried in the same and the attached to other houses garden gardens Here, the defendant. the au previously occupied by again, of v. was invoked and evidence thority Regina Geering, supra, of other similar deaths was received. In v. 12 Regina Roden, 630, Crim. Cas. the defendant was indicted for the Cox’s of her an infant nine child, old, murder whose death was days caused suffocation while he was in bed with his mother. by The defense was accident. To rebut this defense testimony was received show that five other children of the defendant was however, had all died infancy. prisoner acquitted, who said the the of a child testimony physician, might suffocated the mother have been it accidentally by overlaying on bed. In v. and or by covering Regina Flannagan 154 XVI. VOL. REPORTS, raw YORK CRIMINAL were who defendants, 403, 15 Crim. Cas. Cox’s Higgins, defend the husband indicted for sisters, murdering were also had The defendants ant arsenical poisoning. Higgins by John Jennings, murder of been indicted for the Margaret same of the members and Elannagan Mary Higgins, apparently “with received deaths was Evidence of the family. previous feloniously defendants a view of not that showing, died fact, had, deceased but that the deceased, poisoned v. State, In Zoldoske administered some one.” by poison for 82 Wis. was indicted prosecuted the defendant 581, died of poisoning. the murder of one Ella who strychnine Maly, was enamored defendant The evidence tended to show that the servant, lived as of Dr. in whose she Mitchell, family received was Evidence was of his attentions to Maly. jealous oc death, Mitchell’s to show the circumstances of Mrs. for showing curred to the death of the purpose prior Maly, v. In case of Goersen was that the latter not accidental. was accused 388, Pa. defendant St. Commonwealth, theOn death of his wife arsenical poisoning. causing admitted mother was death of the wife’s trial evidence to both them arsenic has been administered to show that to obtain their prop of a on defendant’s part design pursuance de to show the was held to competent This evidence erty. beo which that intent, purpose system by fendant’s purpose accident, and also to rebut the theory was to be accomplished, arsenic administration or the ignorant suicide negligent Seaman, v. or his wife. People either Mich. an committing on. manslaughter prosecution circumstantial, killing where abortion, proof was due was that the birth defense premature theory receive evidence that was held causes, proper to accidental in the same house. other abortions had performed the respondent character in which this kind of similar other cases are There These will not be referred to received. was not of evidence this authorities under the foregoing citing our only purpose difference between the cases radical is to show head THE PEOPLE V. B. ROLAND MOLINEUX.

must be relied case at bar. and the upon by prosecution in the While the cases have early English lengths gone great admission of crimes than to establish other testimony tending the one it is clear theories charged, two only which the could therein or rulings be, have been attempted be defended are, first, accidental, have been killing may or, one that the cause of In the second, death was doubt. instance of other similar proof deaths the same under family, circumstances and identical have been the symptoms, only evidence obtainable to in the other felonious killing; instance the as to the cause of death uncertainty could, possibly, have been removed evidence of same by deaths previous family under circle, conditions which cumula- would make the tive evidence of all the deaths cause of the cogent proof death particular case is indictment. Ho such charged presented here. The used poison is clearly positively identified. The analyses contents of the bromo seltzer bottle, the from which a glass thereof was taken portion by victim and of her internal the swift organs, point unerringly and terrible of death agent the murderer. employed by is poison rare," subtle, It deadly. mixed a harmless with_ powder common use, contained in a bottle, labeled and pre- pared with the to deceive design It accom- recipient. panied articles calculated to induce the belief that they are component of a parts from a friend. It gift is sent by mail on the eve of that when great holiday spirit gener- will osity good pervades land; when are friendships renewed and enmities are when distrust and sus- forgotten; picion are allayed kindlier higher impulses human nature. Was this sent ? poison mistake or accident Are not utter venomous depravity,' murderous de- malignity, fiendish sign, cunning, fact and indelibly stamped upon every circumstance connected with the act? It would be a travesty our jurisprudence hold that, a case of such appalling and transparent criminality, it could ever be deemed necessary to resort to proper proof extraneous crimes to anticipate REPORTS, NEW CRIMINAL VOL. XVI. YORK irre- The same mistake. defense of accident or impossible felonious establishes

futable of fact and circumstance that logic or mistake. accident intent as clearly possibility negatives common Fourth. As or scheme. to plan are committed It or more crimes sometimes that two happens or under the same design single person pursuance without one circumstances which render it to prove impossible gen- all. To a case within this exception proving bring must there crimes, eral rule extraneous which excludes proof the one be evidence of offense on trial between the system aof must be connected parts be introduced. sought They re- so be or or must scheme, they general composite plan run- or intent a common motive lated to each other as to show Evi- in his work on Criminal both. Underhill ning through rule: section states this dence, general thus exception “ in evidence. Ho and isolated crime can be separate given another, order that one crime relevant as evidence be the two connected as of a composite must be parts general accused movements of the prior scheme or Thus the plan. he was relevant to show that the instant of the crime are always for it. bn a trial Hence, to commit preparations making killed an- that the accused homicide, permissible for or was in he was the time preparing person during he is on trial. homicide for which act of committing occur near each when several similar crimes And, generally, several bur- as, example, either time other, locality, fires the same it is relevant or incendiary night, glaries one at accused, them, show that the being present if crimes seem be connected. Some at the other present fo crimes must be shown to have existed between the connection actor, them for the ac- and in the mind uniting in fact before such a common evidence can purpose, complishment must from This connection clearly appear received. be exists is a connection judicial Whether any ques- evidence. it, not the accused clearly perceive If court does tion. of the doubt and re- the benefit the evidence should given V. B. MOLINEUX. BOLAND THE PEOPLE he must not poisoned The minds the jected. jurors and danger irrelevant evidence this "prejudiced by receiving of the excep ous just description.” compendium quoted, no that and concise tion now so accurate under is discussion, are many text there will be cited, although writers in them. regard There room for discussion is, no indeed, to show is admitted evidence which general principles upon a or misdemeanors that is of other felonies guilty v. than the in People one which he is tried. As stated “ in N. Y. any particular 107 whether Sharp, 467, case rule comes within the to the well known exceptions general rule itself often the what the difficult and not as to question, is.” really

Before which to the and circumstances upon facts adverting its a connection prosecution rests claim that there such Mrs. between the of Barnet and the alleged killing killing Adams as to in of the former justify proof support latter, we will in the course hitherto pursue adopted citing some authorities and which prosecution rely rule. In illustrate limit exceptions general v. the deaths of defendant’s Commonwealth, Goersen supra, mother-in-law and were connected evi wife, respectively, by dence to show defendant’s to obtain tending design possession of their There a intent and motive, was property. single pur In Hester al. v. Commonwealth, et 85 Pa. St. 139, pose. “ ” known as which is one of the the de Molly Maguire cases, on for were trial a murder which had been fendants preceded were Evi highway robbery they implicated. in.which dence was received show that the defendants were members which had a secret for its object commission of society crimes, arsons, such as various robberies and beatings, murders, of its members from arrest and and the protection punishment them, them to and otherwise. This secreting aiding escape to show held to be that the crime competent was was charged for which the scope purposes within conspirators and to explain were banded corroborate other together testi- 158 YORK NEW CRIMINAL VOL. XVI. REPORTS, n monywhich bore the crime the commission of directly upon affd., v. Div. charged. Zucker, 363; People App. Y.N. the crime arson in first degree charged York New It burning, city. appeared building York August, 1891, city the defendant had a house New some furniture. removed to -The furniture was containing ¡N". house in an accom ¡Newark, J. The defendant stated to who was plice, a witness for his object prosecution, name of furniture was to have it removing insured because Selzer, had been he, defendant, blacklisted insurance in his own and could not it insured companies get ¡New name. On in York was 4, 1892, the house January ¡Newark and a burned, few the furniture in had that days-before also been burned. It was held that evidence in respect ¡Newark fire was both arsons competent upon ground were with a perpetrated and motive and object single pur “ suance of the same The court said: Where one crime plan. is committed to for and the commis prepare another, way sion of the second crime is made to depend upon perpetra tion of the first, the two become connected and related trans and the actions, of the commission of the first offense proof becomes relevant to show the motive for of the the perpetration second.” In v. 83 Y.N. the defendant was Hope People, 418, indicted and tried the crime of in the first robbery degree. The evidence disclosed that a number of masked men entered of the apartment of a bank and janitor took from forcibly him the of the bank. The bank was on the key burglarized same occasion. The two crimes held were to be so connected that evidence of the was deemed to connect burglary competent the -defendant- with the In v. 135 robbery. People Murphy, Y.N. 451, the defendant was convicted of the crime of arson in the third The was that defendant degree. specific charge had burned a barn to the man whom he had been belonging as coachman and The had employed been gardener. from this A had discharged position. poisonous preparation injects garden. in-destroying been barn for use kept 159 MOLIXEUX. THE V. B. PEOPLE BOLAITO received to show The defendant of this. Evidence was knew occurred, span that on of the fire before night died. This had horses, and a cow pony poisoned that the injury was held competent tending and as the animals part was done the incendiary destruction same criminal scheme which resulted de 301, barn. In Pa. St. Kramer v. Commonwealth, a hotel to burn fendant was convicted of arson in attempting cir which was evidence, which he had been an inmate. as the

cumstantial, person. to the defendant pointed guilty after show that two days Evidence was offered and received to the defendant first abortive, proved attempt, in his combustible materials apprehended possession, with a second under circumstances which indicated attempt strongly at held to be competent hotel. The evidence was burning to show a crime renewed previously purpose accomplish made both attempts. who attempted identify person of this court quoted approval approving ruling Pa. statement v. St. Commonwealth, Shaffner “ make a connection between one crime evidence of another them them actor, must have existed the mind of the linking or it for some he intended to accomplish; together purpose a to of the actor by must be necessary identify person that he who committed the one must connection which shows There are other cases where two or have done the other.” are so connected that it is to more crimes impossible distinguish one, and of in the effort to establish all, them proof part class Illustrations of this will be found of the res gestae. Pa. which defendant Commonwealth, 319,

Brown v. 76 St. at the same time under wife, killed a man and place, that both were committed the same by circumstances showing and in v. Mich. where the de People Foley, person; in the same bed and his two children at the fendant murdered same time. which the cases further multiplying exemplify

Without to the that extraneous rule, general the exception support YORK VOL. XVI. NEW CRIMINAL REPORTS, crimes be to establish the crime may charged, proven specific all of when are shown have to been committed pursuance common so connected that evidence when are they design, of one tends will from other, single to we now prove quote limita- authority succinctly clearly prescribes dis- tions of this for careful and the reasons exception judicial Commonwealth, crimination in its In Shaffner v. application. make said. “To court of supra, highest Pennsylvania one criminal between them act evidence of a connection another, must have them together existed the mind the actor linking for some or it must be he intended to purpose accomplish; a connection to of the actor necessary by identify person which, done have that he one must shows who committed the not the other. it only Without this obvious connection two to the him to himself unjust prisoner compel acquit burden justice offenses instead but is detrimental one, and mislead a trial with issues that tend to confuse multiplied other The most innocent of criminal be jury. guilty may he might offenses if him, which, tried, against fairly charged character himself. From the nature acquit prejudicial received, of such evidence it is obvious it should not be unless tends, the mind that the commission one perceives plainly visible the commission connection, If the so dubious that the does evidence be prisoner. judge of the doubt connection, not benefit clearly perceive minds should be instead of prisoner suffering given an fact, jurors prejudiced carrying independent it no evidence of the This state- proper particular guilt.” civil voices the note of the distinction between the ment key law. and our own more merciful common Under law A there is no of innocence. mere official former presumption of crime the accused his defense. His his- puts charge is an of which be read in book, every tory open page crime or indiscretion evidence of prosecution. Every life be laid bare feed the his of may presumption guilt. law, is our own common which is How different the product THE PEOPLE V. BOLABTD B. MOLIHEUX.

of all the wisdom and of it the all the Under humanity ages.

accused comes into a court of in the pre- justice, panoplied of his innocence, which shields him until sumption guilt established a reasonable His character doubt. beyond general can be thrown into The the balance no one but himself.

incidents of his are not connected with crime life, charged, his sacred of a He faces his accuser in the possession. light distinct with the will or can charge, be, assurance that no other be, proved him. against

Let us now endeavor to these make a of practical application to the ease at principles bar, that the subjects remembering motive, intent, accident “and have been dis- mistake already and that the cussed, remains for subject identity separate consideration. Mrs. Adams was killed on the 28th day 1898. December, The cause of the latter’s death was clearly established by evidence connected with definite motive and unmistakable intent. The mistake or only accident that did in possible fact The intended happen. victim innocently administered the to another. We con- poison are, therefore, to sider whether the of Mrs. Adams and killing the alleged killing of Barnet were of a common part plan scheme, or were so connected that evidence of the death of and its Barnet cause tended to the murder of Mrs. Adams. Barnet died on the 10th 1898. day November, events Subsequent proved that he died mercuric There was no poisoning. to connect the

tending sending poison to Barnet, the inference which except drawn from it was sent assumption by mail, this assumption based statement of utterly incompetent Barnet The motive for the physicians. alleged killing Barnet is so from the distinct motive for the crime assigned charged indictment that new and common motive is sought this, alleged forgeries defendant, we have seen, is the creation of counsel argument appeal, never the trial. having suggested upon motive

Yol. XYI—11 REPORTS, VOL. XVI. YORK CRIMINAL KJSW without the sup- trial,

against Barnet, exploited upon that testimony upon since a of the port large part for pre- But was stricken from the record. subject assuming it all that did in sent that the fact prove purposes prosecution connection it is prove, any legal sought impossible perceive said have been poisoned between the two cases. Barnet was affairs. he in love because had interfered the defendant’s hatred Cornish was to be because he had incurred poisoned over them as the between the defendant result quarrels Adams and Mrs. 10th, club matters. Barnet died November defendant, that died seven later. us weeks Let suppose killed had shot a motive for the of Barnet, having killing on in darkness of November, 1898; him that night Mrs. killed some one had shot and December, 1898, 28th day Cornish; subsequent was near to that Adams while she a dif- also had that defendant it had transpired investigation for thus Cornish, creating suspicion ferent motive killing intended for Adams had been bullet which killed Mrs. that the shot shown that the defendant Barnet it could Cornish, ? caused Mrs. Adams The two deaths were he shot times, means, same at- different inspired by separate Is one there con- any motives, against person. charged ? the two crimes between nection “ ” is established the Barnet that the connection is said It ” box Let us assume letter “ correspondence. and Cornish ” “ Barnet letters were for all that the competent the present were used. for which Referring they the purposes ” and its incidents, it appears “ correspondence Barnet name a letter box of Barnet. rented the defendant addressed to Barnet were letters received. Through Cornish box renting is no suggestion There to and fro passed communications in any the defendant undertakes to describe When Barnet. name “ as it is said he did in the Barnet, diagnosis is not who a person later, months and six himself. Seven describes he blank,” rents a letter the defendant Barnet, death after weeks THE PEOPLE V. B. BOLAND MOLINEUX.

box in the of ithe medium name Cornish. This was under ” of cover sent “ which the was Cornish correspondence received. in of the in box nor any Neither the this renting letters is there addressed to or in written the name Cornish connection reference to the any Barnet case. the Where between them ? It is in the similarity that it exists argued methods in and in identity the two cases employed the methods two and in the identity cases employed the remedies written true that for in both names. It ” ” “ Calthos found the be- “ Kutnow were among powder of Barnet. found in the letter longings The same were things box to agency Koch, Cornish, addressed but placed box never until wrong and, delivered therefore, up given do if police. What these this: things prove? Simply the same was both boxes he was"em- person operating through similar ploying means for different ends or for some common not disclosed record. purpose this The methods referred to by are as identical as two or but any assaults, shootings, stabbings ño more so. In this connection it be well to remember may ” “ that Kutnow was not for in name of powder written Cornish until the 21st of December, day very day on which the bottle holder was which fitted purchased exactly “ ” the bottle of bromo seltzer sent to containing poison “ ” Cornish. This would indicate that when the Cornish let- “ ” ter was for a of Kutnow written, salts, the asking sample vehicle had been chosen for the that was already to be poison sent to Cornish. While this fact would not be in- necessarily consistent with the efforts obtain other materials prisoner’s ” if effect bromo seltzer fail, “ should it re- designs true mains that whatever was done in December had reference to the death of a.nd not of Barnet, Cornish the latter having died November. It is also which urged poison of Mrs. Adams one could caused death only and administered produced secretly successfully who had the and skill, and, there- person requisite knowledge the use the same in a it was to show fore, poison proper XVI. VOL. REPORTS, NEW YORK CRIMINAL admitted evidence had been case. Other previous properly skill, appliances had the show that the defendant knowledge, case. Adams used the poison opportunity produce man who make four that It is as that two and two plain But so in another. in one do could case could produce sim- cases in the two means were used naked fact that the same committed have been that two distinct crimes ply proves a fact not There is the same similar means. person by itself, legiti- that, Barnet taken circumstance case un- case Adams tends fact essential mately prove any “ ” Barnet til we come to the subject handwriting “ ” under the and will be considered Cornish and that letters, of head evidence. handwriting

Fifth. As to identity. evi the that when

Another the rule is, to exception general who the dence of an crime tends to identify person extraneous crime the committed it as who committed the same person not is There are in the it admissible. indictment, charged have been in seems to cases which this reported exception many while of cases, A far number affirmatively applied. larger have held it its distinctly existence, inapplicable recognizing for to facts The reason the then before the court. particular cannot is obvious. In nature of there be many this the things with no crimes, cases where evidence and distinct of separate or or will serve to motive, connection intent unity plan, as the same the who committed one identify person legally is it is who of the other. The fact that person very guilty easier to an accused when much believe person guilt it is or he has committed known suspected previously of such similar crime evidence tendency proves dangerous to not the crime but convict, upon the evidence-of upon charged, evidence crime. Hence superadded previous out evidence courts have been careful to such proverbially subject and have it the most excluded rigid scrutiny, invariably shown. cases where its was not clearly relevancy competency As was said v. N. Y. such evidence People Sharp, B. THE PEOPLE V. EOLAHD MOLINEUX.

“ down tends to load necessarily directly prisoner he cannot distinct which crime, separate past charges or explain, he is or will be in condition meet supposed proper him and which tend necessarily very prejudice gravely inno the minds of of his jury guilt upon question cence.” Such the conviction evidence for gives opportunity an accused mere instead person prejudice a defend which actual commission of crime

showing accusation ant on trial. an It to meet compels not successfully he charged might indictment, if refute do given unembarrassed so, opportunity issues. discussion Before under applying exception case at bar, let us which illustrate examine few authorities admissible theory which evidence of crimes is previous identify who with the commission person charged the crime set v. forth the indictment. People Rogers, 71 Cal. 565, the defendant was a murder com convicted of mitted by him while the house burglariously entering deceased. Evidence was received to show tending defendant had committed a at prior which he had burglary stolen a knife and chisel, still another at which burglary he stolen a pistol. evidence also tended to show that at house of the burglary deceased had been committed means of the knife by and and chisel, that the deceased had been killed with the which the pistol defendant had previously stolen. It will be seen at once that there was such a palpable connection between the several crimes referred to that identification of the means used in the commission of the crime while charged, incidentally proving of guilty crimes, also identified him as directly who was person of the murder. In v. guilty Commonwealth Choate, 105 Mass.

451, the defendant, was ship joiner, indicted for burning of one Ackerman. The charred remains of a box, [buildings peculiar construction and were equipment, found on [of beside one of these After the buildings. fire the de [ground fi’om fled the State. Soon thereafter his was shop fendant VOL. XVI. YORK CRIMINAL REPORTS, NEW which, were found and materials and certain tools

searched box show that and tended comparison, upon inspection defend made had been found at Ackerman’s buildings tools that were and with the ant’s from the materials shop workman material Another of similar there. box design, con under nearby, at a church had been found ship previously incendiarism. Comparison ditions an at attempt indicating wood of was made first found and piece between box been, had was that they origin defendant’s and it shown shop, letter wood. An anonymous of the same ally, parts piece authorities, threatening which had been sent to the municipal shown to have been written incendiarism, general to the box The defendant. admission of the evidence relating “ it tended found at the church was on the upheld ground skill, to show that the defendant was the requisite possessed box used to have made the materials, tools opportunity “ to letter, the Ackerman -in said fire,” at connection with with the single the defendant made both boxes show ” there motive As crime proof the letter. expressed evidence, circumstantial charged depended wholly upon suffi at was not mere the box Ackerman’s buildings .finding of other or intent. Evidence cient to establish either motive at arson was, therefore, competent necessary attempts Such establish these essential elements of the crime charged. rendered because it not was, course, incompetent who was also tended to the defendant as the person identify In v. of that crime. Hope People, supra, robbery guilty followed of a bank. committed masked men was by burglary thereto of the bank been robbed janitor key was held these men. Evidence the burglary proper therein with the those known to have implicated identify v. Cluves, who had committed the Rex robbery. persons & a nisi prius case, 4 Car. Payne, imperfectly reported, A. was was a indicted for identity. there question was hav that A. theory murder H. prosecution him; hired H. to murder that H. P., malice having ing against V. ROLAND B. MOLINEUX. THE PEOPLE A. act, in the been detected but murder, committed having of his H. to the discovery (A.’s) guilt. murdered prevent and direct was an immediate each of the last two cases there crime and the extraneous connection between the crime charged who men bank, It the first case the proved. burglary robbed, were with the had been which the known, key janitor men who but identified the as the masked directly burglars moment before was committed the which charged robbery the indictment. In the second that the defendant case, proof hired H. to murder P., act, that H. was detected evidence that had cogent the same man who hired the assassin had a motive for rid of him when his confession getting seemed imminent. What is there the evidence of the alleged of Barnet that tends to the defendant as the killing identify who Mrs. ? person Adams Barnet to have poisoned Assuming been killed the defendant, the crime has its own separate intent and motive, This is plan. true the crime equally in the indictment. The mere charged fact that the two crimes are as to the methods and parallel means in their employed execution does not serve to the defendant as the identify poi- soner of Mrs. Adams unless his of the latter crime guilt ' inferred from its to the former. Such an inference similarity he if justified it had been might shown that the conclusively killed Barnet and that no other could person killed have Mrs. Adams. But no such evidence was given.

The evidence tended to show that the defendant had the knowl- skill and material edge, produce which was poison sent But he was to Cornish. not shown to be the only person of this skill and material. knowledge, possessed Indeed, it is common that there are such knowledge many persons. There- naked fore, the of these similiarity crimes proves It nothing. said the defendant of two letter renting boxes, in the name Bamet and the

one the name of Cornish, and the correspondence passed them, through proves man who rented both boxes and carried on the correspon- dence is the same man who committed both murders. Let us REPORTS, XVI. VOL. NEW YORK CRIMINAL is have there shown, is. As we

see how deduction this logical Barnet subject-matter in common between the nothing fact except Cornish correspondence correspondence im- for remedies that in main to advertised it all relates the writer in which in each series potence. There one letter “ ” for a sample asks sends for letter “ Calthos.” One Cornish “ ” in the is found Kutnow A box of this powder powder. “ ” ” “ Cornish Barnet is found in the letter box and another letter box. Barnet to have been poisoned Assuming “ ” adminis- cyanide of in Kutnow powder contained mercury in found tered "to or taken it is clear that him, package “ ” used Barnet did contain the powder letter box not have that is shown to .and clear that no one it is purpose, equally ” written for name of Bamet. “ Kutnow powder “ “ ” ” could letter box Kutnow Cornish found powder had decided not have been after the there until placed prisoner “ ” holder use for the bottle case, bromo seltzer the Cornish “ ” was letter box on the that the Cornish purchased same day Barnet. was seven weeks after the death of rented, All that is shown of this the character correspondence defendant used the names of Barnet Cornish carry it on and con- that it related to common not subject generally nected with of the- murders. As the contents either alleged of none of series contain the letters reference any one. to or throw the matters referred to the other any light upon how the it is difficult to understand letters the Barnet series, the murderer of Mrs. Adams. series tend to As identify we have discussed each of the five briefly possible, foregoing rule in the effort to exclude them, exceptions general to the case at bar. If, one from as we one, application think, then them, eliminated each we have are successfully they and it case, from the follows that necessarily all removed none the evidence Barnet was tending poisoning the murder of Mrs. Adams. to prove relevant competent added that even if point Before this leaving of Barnet were to the death com- evidence relating generally THE PEOPLE V. B. MOLINETES. ROLAND Adams, of Mrs. for the murder petent purpose proving of the statements error in the admission there was fatal yet with told him Barnet made Dr. as what Douglass “ ” mail. reference to box of Kutnow powder receiving be conceded This It may evidence was clearly incompetent. of an

for the of this discussion that when purposes for which crime extraneous crime is admissible to prove fact every defendant on is not trial, prove it necessary would crime that Bindcircumstance to the extraneous relating cannot But it be essential to thereof. sustain a conviction to be evidence, serious to show such that require argument on issue must be relevant and admissible, competent in the testimony trial. There no was, therefore, competent “ ” case through that Barnet ever received Kutnow powder “ ” Barnet correspond- and as there mail, was nothing “ Kut- ence to show that the defendant had ever written ” name in or in now the name of Barnet powder any was written, until letter of December 22, Cornish tends to connect the the record is barren of evidence which it of Barnet. At this point killing even if it could have proper observe, also, proper motives, distinct crimes with there was two separate absence, Barnet case. an utter of evidence of motive of the witness Bachel to the effect that Green, The evidence wife had lived the defendant and his before their together was stricken out the court’s own on motion, marriage, district had not connected that the it with attorney ground nor made it material to the case at bar as he had the defendant This evidence not stricken was, however, to do. out promised case a and month, had been full even then the until the case to the attorney permitted present district jury the evidence had been retained. as though precisely the evidence of handwriting. As to the defendant

For the wrote the proving purpose received Cornish, poison address package REPORTS, HEW VOL. YORK CRIMINAL XVI. admitted, offered and the court standards prosecution consisted first class three classes The comparison, writings. of defendant’s fifty-six specimens handwriting gathered him conceded by from various places ways, sundry class The second at the trial to be genuine handwriting. “ number, seven in consisted the so-called writings,” request cir- under the admitted to the defendant have been written by third facts. cumstances the statement of disclosed “ ” “Barnet” five letters, class consisted of nine so-called Barnet Barnet These so-called “Cornish” letters. three envelopes in- respects, and Cornish unlike letters, many although troduced in for be classed together different part purposes, in taken out the the of considering exceptions questions arising of of court the the subject comparison rulings upon handwriting. facts based the

The which the prosecution charge upon and- class, the defendant had written of the third the writings admissi the facts to be understood the considering necessary of second class, briefly the bility writings recapitulated, are defendant 1898, as follows: On the 27th of the day May, of one a letter in the name H. C. from rented box Barnet who letter No. 257 Heckman, box at kept private agency “ ” The letters W. 42nd Hew York nine Barnet street, city. Q. P and The en O, T, M, consist of B, E, H, O, Exhibits letters J, K, consist of Exhibits H and R. These B, velopes were addressed to various of medi manufacturers proprietary for remedies. of them cines Hone referred terms any of Adams. fact circumstance connected the death Mrs. All are of these letters said to disclose certain by experts “ of peculiarities which also in the Cor handwriting appear ” nish letters, address and in the con poison package “ One these, ceded of the defendant. of writings diagnosis written in the name of is said to blank,” Barnet, describe ” defendant not Bamet. The Cornish “ letters embrace Exhibits E D, and G. Exhibit D one addressed to Stearns & for about Co., information asking Exhibit E Harpster.- V. B. MOLUTEUX.

THE PEOPLE BOLAHD salts, for Kutnow Bros., sample letter to asking “ five Mohl & Co., asking is the letter to Van Exhibit Gr writ- were three letters As have these seen, trial.” we days’ also used ten tri-crescent paper, upon egg-blue, “ ” ofwas which paper the Burns letter (Exhibit 2), writing witness seen as that by the same character and description in the defendant’s Melando in the drawer of the sideboard class The second room at the Harmann in Newark. factory “ Exhibits consists of the so-called embracing request writings,” 8, pres- 9 and written 3, 4, 6, 7, by ence and at expert Kinsley, handwriting suggestion as 1st who had been retained by McClusky early Oapt. 1899. admission the trial court day January, these standards raises important comparison interesting which will he considered in their order. questions The first made the defendant is that point comparison the address made with could not be poison package whatever under the statutes any writings regulating in this of the de- subject State. When the genuine writings “ fendant, known the case as the conceded were writings,” offered as standards of the de- prosecution comparison, fendant to them objected comparison ground in a case in which the competent only handwriting disputed is the issue to he and never writing subject-matter tried, in when it is that ; words, only evidentiary comparison made is the he when the fact may disputed issue, writing hut a fact relevant not when it issue. The merely of this to the foundation of objection the Peo- disposition goes of the rule case, statement at common ple’s requires law and of its modifications. statutory

There is some difference of opinion courts among highest the extent to which the several States concerning compari- he made at common law. son of rule handwritings which was in this established State England, adopted long the statute until the enactment of existed it was relevant, this: Whenever according briefly gen- 172 REPORTS, NEW YORK CRIMINAL VOL. XVI.

eral rules of had or had evidence, any person not written a made such he particular paper, proof might either witnesses or (1) written, who seen the hy paper whom it had familiar been or witnesses acknowledged, by (2) with the writer, to be the handwriting person charged and who were able with from familiarity their testify to a belief hand handwriting respecting genuineness or has known writing question, what come (3) by law comparison hands, which could be made at common or witnesses, witnesses, court or the aid of without jury between the disputed and other already writing writings evidence for other It has out often purposes. pointed that the second class of evidence above mentioned is, equally with the third, for in the second class comparison hands, the witnesses awith standard compare disputed writing exemplar present their own minds. It has never been however, doubted, the second class of evidence was ad missible whenever, within the evidence, rules of accepted became relevant to determine whether a wrote particular person The third disputed paper. class, of direct com consisting made or in parison presence the tribunal with charged the determination of the fact, was limited in and in England this State to between comparison documents in evi properly dence other purposes. Comparison be made between might such documents and the- in order disputed to deter writing mine whether the writer of the other documents was also the writer of the but that was disputed paper; the extent of the rule. Ho document could he introduced as a standard merely Newton, comparison Doe v. disputed writing. Ad. & El. Doe v. 514; 5 Ad. & Suckermore, El. Van 703; Wyck Y. ; v. N. 439 Dubois v. McIntosh, 30 N. Y. Baker, 355; v. 48 N. Y. Miles v. Randolph Loughlin, 456; Loomis, 75 N. Y. 288. an seen, will be examination of

It decisions estab- law rule in the common and in this lishing England that State, idea that a must he the disputed writing in very fact issue THE PEOPLE V. ROLAND B. MOLINEUX.

in order made it and between comparison may than for other writings already properly purposes finds or in itself, any no the rule comparison, support If it the reasons which led rule. to the formulation of that has foundation it must be the statutes any regulating subject comparison handwriting. first statute in this State the subject chapter Laws of amend law 1880, “An act to entitled evidence and on and is as civil and criminal practice trials,” “

follows: 1. Section of a Comparison writing, disputed any to the satisfaction of the court to be writing proved shall be genuine, to be made witnesses all trials permitted and such evidence of wit- proceedings, writings nesses the same be submitted to the court respecting jury evidence of the of the writ- genuineness, otherwise, ing dispute. “ n Section 2. This act shall take effect immediately.” It is obvious that of this enactment was to purpose and not in enlarge wise to narrow the any rule established at common law. The latter was felt to be too generally inelastic, as it excluded from frequently the consideration of the court testimony common experience to be As proved helpful. as 1854 early the restrictions of the common law rule thrown off in statute. 17 & 18 England by Viet., 125, chap. secs. 27, 103; 28 Viet., 1, secs. 8. chap.

The statute of 1880 is almost verbatim like the English statute of 1854. So far as our research has we have been gone unable to find that the any suggestion statute was intended to limit at comparisons which, common law, could be made con- cerning any relevant to the writing issue to which were writings themselves facts in issue, a dictum except to be presently noticed. Such a construction cannot be the statute with- given out assuming while legislature, to broaden intending the common law rule, made actually it much narrower.

The statute of 1880 was first considered this court in Peck v. 95 N. Y. 73. That Callaghan, was an from appeal

174 BEPOBTS, VOL. XVI. NEW YOBK OKIMINAL before a decree a will to The questions admitting probate. admitted this court whether the were surrogate properly used to be of the testator’s specimens genuine handwriting the sig- standards which expert compare witnesses as with of the nature to and had rejected the will, specimens properly This the will. to have writing charged forged person statute. could held the were under the rulings clearly right “ intended to Oh. This act was evidently L, Ruoeb, said: for test- the of evidence and extend the facilities rules enlarge of whose of a ing handwriting genuineness party, afforded by was signature beyond opportunities disputed, the then The learned chief judge, rules.” (p. existing 75.) added a sentence which appears following paragraph, be the foundation of the defendant’s argument against case at bar be- made of the admissibility comparisons “ ” address the poison -tween the conceded and the writings “ in the The referred package, namely: disputed writing subject which is the statute relates to the instrument only action, controversy specimens handwriting are admissible thereunder those person purporting have executed the instrument controversy.” (p. 75.) .This a slender foundation for the defendant’s argument. the learned must confined to the observation made judge further that it was court; unnecessary facts before the than court. decision and not binding upon v. 1884, The decision in Peck made Callaghan in order the con in 1888 to avoid evidently legislature, standards of to the struction comparison genuine confining to have executed the handwriting person purporting enacted 555 of Laws of 1888, instrument, chapter disputed 2 1. is as follows: “Section Section chapter law of Laws of entitled ‘An act to amend the evi- criminal trials,’ on civil and hereby dence practice so read follows: amended as.to “ of a Section 2. Comparison disputed writing any satisfaction of the court to be genuine proved writing B. THE PEOPLE V. BOLAND MOLINEUX. to have made claimed on the trial any person,

handwriting shall he or executed the or instrument, per- disputed writing, in like manner. mitted and to court and submitted jury action But shall affect or to any within contained apply nothing or heretofore commenced or now pending. proceeding

“ Section 2. This shall act take effect immediately.” The Act of 1888 the act of does not repeal supersede 1880, but of the latter enlarges operation by admitting evidence of the kind which decided it was been thought in Peck v. to be under the statute inadmissible Callaghan 1880. In other evidence which would words, it authorized establish of the forgery disputed by per- writing particular son. We see in either of have the statutes which been nothing to quoted construction to be justify attempted placed upon them while by defendant, the whole history subject at common law and under the statutes of Great Britain this State view. requires contrary

The precise never to question have been decided appears of the courts any of this State, for the reason that probably the bar have deemed the statutes too to so fan- warrant plain ciful a construction as the defendant’s counsel attempts give them here. We think it too clear for extended argument ” “ referred disputed the statutes writing by is any which one a trial seeks writing party upon as the genuine which is handwriting any person, not admitted such, be that the provided not inadmissible under writing other rulés of evidence. The statutes were intended clearly to remove the restriction which at common law limited the com- of a parison disputed either with writing, other writings put in evidence for other than purposes or with comparison, standards in the minds of witnesses existing familiar with the to be handwriting person sought the dis- charged The puted class of writing. disputed writings be may the trial of an has proved issue neither nor enlarged restricted. of such admissibility disputed de- writings pends other rules than either the common law or VOL. XVI. HEW YOKK CBIMIHAL BEPOBTS, If a comparison handwriting. rules

statutory respecting or a fact either a fact issue, is itself disputed handwriting the means pointed it issue, relevant to the proved nor relevant If issue out the statutes. it neither of 1880 statutes issue it not because the excluded, must be because, but and 1888 have to do with the question, anything can have no bearing upon to fundamental rules, according the controversy. in force in several similar statutes are

Although defend no such as is contended States, construction have been able ant here has so far as we ever been suggested, that compari to ascertain. connection it is this significant in character evidentiary sons between disputed writings merely in a number have sanctioned standards been accepted have its scrutiny cases before some of which passed this court, out errors not it had the pointed although power correcting 520; 108 N. Y. McKay Sudlow v. by exceptions. Warshing, Y. 235; v. 121 Y. v. 127 N. 477; Hard, N. Dresler Lasher, Ins. v. v. Y. Mutual Life Co. 570; 137 N. People Sliney, 131 Y. v. 148 N. Y. Peo 476; N. Suiter, 557; People Corey, v. N. Y. 449. ple Kennedy, Exhibit is, A,

It course, beyond dispute People’s link in the address is an important poison package, the chain of evidence to connect some with person tending issue, of Mrs. Adams. It a fact relevant to the killing Mrs. Adams. fact in issue whether the defendant killed being if he on trial for hav- The defendant’s contention is that were A such a then Ex- Exhibit (were possible), ing forged thing A fact in issue and be with hibit would might compared ”(cid:127) conceded in order to establish the “ writings charge the defendant wrote Exhibit A. since the fact issue But, Mrs. is the defendant’s for the death of Adams, responsibility A a link in chain and Exhibit connect only tending can be him no such resorted to. We death, comparison we have demonstrated the of this think fallacy argument it more than it merits. have already space given THE PEOPLE V. B. MOLINETJX. BOLAND trial to Another made the defendant at the objection the so-called standards of admitted the court was comparison “ those writ- The circumstances which request writings.” were made the defendant have been detailed. ings already are receive them in We that it was not error to opinion evidence. When into the were inquest they produced circumstances of Mrs. Adams’ death was in progress.

defendant was as he knew, murderer, suspected, being and was under at the Neverthe- subpoena testify inquest. he was not in nor had a formal

less, custody, charge made him. It is us that, against strongly owing urged of the case and the known of tire publicity suspicion authorities he police defendant, prosecuting against could not have refused safely Kinsley’s request produce specimens that such refusal would have sub- handwriting; him to jected that it would have criticism; augmented suspicion mind and incited the attacks of certain public news- to have the case papers tried to their own appear satis- faction without the more tedious of the law. awaiting processes But the court cannot admit The defendant argument.

had the to refuse to write for legal right He Kinsley. pre- ferred to accede to the latter’s and we can discover request, no which the thus ground upon can be writings produced excluded from the case. as we have held in If, another of part this the defendant’s at opinion, coroner’s testimony inquest, which he attended under and where he subpoena was obliged to choose between claiming privilege against self-incrimi- “ nation and fully, admissible, fortiori testifying these re- ” are competent. quest writings created litem motam are inadmissible in

Writings post favor Chamberlayne’s them. Best'on Ev. party creating 236; v. 151 U. U. S. 303. But we have S., found Hickory no case that such should be excluded when writings offered holding by v. 4 adverse R. Cox’s Crim. except Crouch, Cas. party, 163, which was decided before the statute of 1854, English

Yol. XVI—12

178 BBPORTS, VOL. XVI. CRIMINAL NEW YORK al in decision, 82 Y. v. N. McDermott, Hynes of 1880; own statute after of our made the passage though arose. controversy it stood the law as when based upon there latter case moreover, It is to be observed, exclusion have which would justified were facts peculiar if statute evidence even there offered the writings commenced. the action was existence when to the standards made the defendant The third objection admission of trial is to at the comparison adopted ” “ “ “ ” Barnet letters. The Barnet letters and Cornish ” to sup in the first instance were admitted letters undoubtedly and the Barnet, had killed that the defendant port charge “ ” Mrs. he that murdered Cornish letters to sustain the charge as evidence tending Adams. Both treated were subsequently to have crimes said the defendant each of the connect also used him. letters were been committed All these wrote who standards from which to determine of comparison be con therefore, the poison They may, address. package under this head. sidered for the of review purpose together The statutes of 1880 and 1888 comparison provide of a made with any writing proved be disputed writing may “ words proved satisfaction the court to genuine. ” to be construed the light the satisfaction of the court are enacted. were the obvious for which these statutes purpose At common law a general pur paper properly when only can be with a but poses writing, compared disputed is admitted of the former genuineness handwriting on or Best a reasonable doubt. beyond Chamberlayne’s proved v. Ad. 1 Greenleaf on Ev. 239; Newton, 514; Ev. Doe & El. Scott, v. v. Loomis, 288; Miles 75 N. Y. (14th 578; ed.) State v. 91 U. S. 270. Since these 302; S., Mo. Moore U. the common law statutes were and broaden amplify designed as standards rule the use of writings genuine permitting when are not relevant competent even comparison, they for other it be assumed that the pre must language purposes, in which the of such the manner writings genuineness scribing THE PEOPLE V. B. MOLINEUX. BOLAND by is to be chosen and deliberately established carefully “ proved While that the words it obvious Legislature. ” court to the of the trial satisfaction the court do not invest with- with a exercised mere discretion is to be personal out that the reference to of it is rules evidence, equally plain or failure of these method statutes to precise prescribe a of of writ- degree to establish proof necessary genuineness for renders ing of purposes writing with comparison disputed it law common resort to the rules of the necessary general for that be Thus of a purpose. writing may the genuineness established be concession (1) sought by person with charged at or for the purposes made disputed writing of the who trial, or or witnesses saw by (2) testimony; by the standards or or whose written, whom, hearing, thereof; person be sought charged acknowledged writing or witnesses whose with (3) by familiarity handwriting who is claimed standard person to have written the enables them to to a belief as to its or testify genuineness; (4) writer standard showing reputed has same, in or has acquiesced that it recognized and acted him in adopted his business transactions or upon by other concerns.

'Since common law evidence is to establish the competent of a to be used as genuineness a standard of writing sought comparison, the absence apparent, rule as statutory to the that the degree made, rule 'of proof general common law as to the evidence must sufficiency prevail.

civil cases of such a must be genuineness paper established a fair of the evidence and in preponderance criminal cases doubt. reasonable beyond Writings proved to the satisfac- tion the court methods and under the rules adverted be used standards for to, purposes comparison however, subject, a disputed writing, qualification otherwise which are should incompetent, never be writings re- in evidence purposes comparison. ceived 180 BEPOBTS, VOL. lOW CBIMIKAL XVI. YOBK the reference to to with say It sufficient is, therefore, “ ” “ ” on rule the the Barnet and Cornish letters that general have laid which we of testimony subject handwriting expert in dis- the down trial court herein will the properly guide as them upon of arise position the which may questions another trial. of the

It was bar in behalf further at the urged of the 1888 comparison that statutes of authorizing to the satisfaction disputed any writing proved writing in of the court because to be are unconstitutional genuine of this conflict with articlé of Constitution I, II, section in which state, which in all cases that “trial provides by jury inviolate it has been used shall remain forever.” heretofore the Con- of The is that this brief, provision argument, case in every stitution the submission requires jury relied upon triable material fact jury, properly every It is unnecessary establish the controversy. allegations We are into an examination extended question. go are unconsti- of the that these statutes not opinion clearly re- tutional and construction of the statutes proper the submission jury quires genuineness standards with which the disputed writing compared. “ ” sense, is used in its word court in the statutes generic in a where a includes both case jury present. judge jury 1880, obviously It that the statute is significant enacted in from statute of Britain sub- Great copied are not the word “court” for the word We stitutes “judge.” it has ever been decided even aware that England any concern- ultimate decision authority court great must standards not comparison the genuineness ing that as it such a however, Be de- jury. may, be made in view of the difference between the not, powers cision would in Great Britain and this state, of the legislature difference statutes, serve phraseology significant of our enacements interpretation statutory guide We have not been referred to and have subject. V. B. THE PEOPLE BOLAND MOLINEUX.

not found decision of this court to the effect that judge any the at the trial has the final decision concerning presiding of offered as standards of genuineness comparison. the writings Peokham, v. in McKay We in of see the J., language nothing 121 above Y. to the views Lasher, N. which 477, opposed withdraw expressed. As between construction which would the from of the of the the jury genuineness important question and a their standards, construction which submits genuineness first to the his of the judgment and, acceptance judge upon of must them, to the decision of the ultimately jury, find within are the rules laid down that above they genuine before it can based them, upon use evidence any regard we them, are bound the latter construction. prefer to accept the sufficiency proof given genuineness offered as de- papers standards is to be a preliminary point termined in the first instance the court before by permitting If the papers court, go jury. having regard the rules adverted to, it then be- adjudge papers genuine, comes the of the in its at duty turn, time, jury proper before of a with the making comparison disputed writing standards, examine the testimony respecting genuineness of the latter and to decide for in- under itself, proper legal structions from the court, whether their has been genuineness established.

We are aware conclusion contrary respecting duty court to submit the of the standards genuineness comparison has been jury reached Vermont, v. Rowell Fuller’s 59 Vt. Estate, apparently v. Costello Massachusetts, Crowell, 133 Mass. 352. We are convinced, however, that the sounder rule is one we have stated.

It be added that with standards comparisons produced at court, whether common law or under the statutes, may be made witnesses, or the court by or jury without the aid v. witnesses. Cobbett 4 Fost. & Kilminster, Fin. 490;

182 VOL. XVI. YOBK CEIMINAL BEPOBTS, NEW v. 303; S. Merritt Campbell, v. U. S.,U. Hickory N. Y. 625. for the counsel our attention

Another upon point urged in admitting court erred defense is that the learned trial given the trial testimony decided at the must be coroner’s This inquest. question When trial. another the court below guidance attorney district this was offered evidence .by testimony had the defendant’s the objection counsel interposed his not was advised rights been shown that the defendant at that warned of time, rights not been at the inquest? coroner. What were the defendant’s rights was under If the the when he attended defendant, inquest, he Adams, formal of Mrs. arrest or accusation for the murder of him, was entitled to be informed of the charge against the his aid of proceedings, the of counsel every stage right Code 188, had. and before further were (Sec. any proceedings exami This only Crim. action is terms applicable Pro.) a codifi however, a It is, merely nations before magistrate. has held that cation of the common-law and this court rule, when a is called at a coroner’s inquest, person upon testify of the commission crime, convened to into a for inquire he has or arrest, which such is then under upon person and he the same accused, been he occupies position, formally he were before an examining has the same rights, though v. 103 N. Y. 211. on the Mondon, So, magistrate. People so if who testifies at the does the hand, inquest person or immunities he has none of the witness, as a rights simply foundation, of the rule which now of a This party. when a testifies at in this state—that establishel person firmly his can as an accused arrested party, testimony an inquest him trial of an indict used upon subsequent not be against his has out of the unless testimony ment inquest, growing after he has been advised of all fully been voluntarily given has an to avail himself his opportunity given rights 121 Y. v. N. 267. The of Chapleau, logical them. People 183 B. MOLINEUX. THE PEOPLE V. ROLAND is that rule stated of corollary necessary part aas party, and not testifies as a witness when a simply person after- he is him even though can he used testimony against dis crime commission wards indicted and tried for the 14; Y.N. v. People, closed Hendrickson inquest. v. 41 N.

Teachout Y. 7. People, upon held coroner’s inquest What was situation at the inquest Mrs. ? It death of Adams appears The defend 1899. on the ninth of February, commenced day ant and testified pursuant attended the was sworn inquest, 10th day on issued to him the coroner subpoena day 27th The was concluded on the 1899. February, inquest close at its was arrested the defendant February, Adams. murder Mrs. a warrant him with the upon charging When counsel, trial, interposed the defendant’s to the admission objection preliminary the learned the defendant at the inquest,

testimony given trial an into the pro court allowed examination very properly at whether inquest determining ceedings purpose testified as a or as witness. People party v. Y. 449. N. of defendant’s Fox, complaint ground he this behalf this is that was not appeal, given to show that was in fact an at he accused opportunity party his and that as such had not been inquest rights recognized record the coroner. are filled with the by Many pages in this that from the outset proceedings regard showing into this to the district subject objected inquiry attorney that counsel; defendant’s of these ob many questions were sustained and that the court inter jections by frequent ventions defendant from prevented completing questions which he had started to frame. The sole of this in purpose a facts which were record, was to ascertain few matters of quiry of which it for the court to informed, become necessary to enable it to admissibility of the pass testimony in evidence. that then offered It obvious the facts to be ascertained were of as with paramount importance compared CRIMINAL VOL. XVI. HEW YORK REPORTS, method, if, Even which that was to be accomplished. must be defendant’s admitted, many questions

counsel mark, suggestions were wide of the a few well-directed have clearly from the court would questions speedily avoided the elicited thus have the desired information and tedious and mark this portion which proceedings confusing that the record. it is however, plain all this, Notwithstanding he when accusation defendant was not under arrest or had testi testified before the that Oomish coroner. It appears of his fied on course opening day inquest. McClusky, he referred to an interview with testimony Captain that the de which he his stated to the latter suspicion during fendant had sent sup him Without poison package. .the facts came later inquest to port light have been a this could not expressed Cornish, suspicion, commis for sufficient basis defendant with charging sion of this crime. It further that the defendant at appears to a tended the and testified thereat sub pursuant inquest to defendant was issued him that pcena coroner, if he refused to threatened punishment contempt The had the issue for de coroner to testify. right subpoena to him if he it. Code fendant and punish disobeyed (Sec. Crim. law that who called Pro.) presumes party as a mere witness knows He testify rights. may tend to decline to incriminate testify anything could have done he him. This the defendant had chosen"to to do so cannot claim his failed he now Having privilege. complain. discloses

The record further the defendant sought in his the district attorney show that cor- summing up stated that he from the oner’s jury suspected beginnng of the commission of the but had crime, the defendant pre- so as lull the Cornish into tended to suspect him and thus This security testify. sense of get statement, after defendant had testified. Whether if was it made, or whether district not, attorney’s suspicions was or true B. PEOPLE, V. POLAND MOLINEUX. THE for no were are matters of consequence, well or ill-founded of the defend- on the status could have no influence they mate- that no ant when conclude therefore, he testified. We, rial admission error committed in to the general was respect the defendant’s testimony given evidence trial of upon objec- before the coroner. We not separate do pass upon not tions as these to of this specific portions testimony, be presented another trial. upon are there our attention

Among questions . urged several which for the may be purpose grouped together such brief to them. consideration as deem it necessary we give and are They that the erred in its charge jury court (1) in its refusal counsel submitted charge requests defendant; that error committed (2) prejudicial and of the that opening attorney; district summing up (3) trial court erred and exclud- evidence admitting incompetent evidence over the of the ing competent defendant; objection and that im- the defendant did not that fair and (4) receive trial to which he is entitled under law. partial The first and third of these not be need discussed. points Many taken to the exceptions refusals charge, and the charge evidence have rulings admitting excluding been of in the disposed conclusions that the “Barnet” ev- idence was inadmissible and that the rules expert governing subject of were not handwriting properly and applied, will many exceptions be obviated by different, course which trial another of this case will necessarily take.

The claims of defendant’s counsel that “error was com- mitted opening District Attor- summing up “ did ney,” not receive that fair trial which he is impartial entitled under the have law,” so presented we should be inclined dis- urgently cuss detail the of error many under these grounds assigned were not heads, do impossible so, fairly impartially, without a critical full and review of the twelve thousand folios REPORTS, XVI. VOL. NEW YORK CRIMINAL review would

of for sole this record that Such purpose. limits, and useful reasonable extend this all opinion beyond unnecessary and in view we deem it of the result reached of to the conduct discuss or decide the raised as questions trial. recorder and district upon attorney ver- that the for contends counsel the defendant And, finally, of In view dict evidence. not jury supported is. herein is required the fact that a reversal of the judgment discussed the decision reached the two questions upon obviously unprofit- earlier of this it would be pages opinion, must able the new trial which and the face of improper, whole ev- had, to our views express upon weight with- and defendant’s fourth idence, we, therefore, point pass out further mention. we sense of conclusion desire to our obligation express for this ap-

counsel both the and the defense upon prosecution the case was for the fairness and with'which peal pre- ability ar- and for the in research sented, diligence painstaking so of details which have contributed materially rangement the labors the court. lighten The court should be reversed below judgment new trial ordered. J. can be were There no doubt the People

O’Brien, under defendant, review, the trial now permitted upon crimes, of the commission him of two distinct give proof Mrs. of Barnet and the poisoning namely, poisoning The crime Adams. the indictment was only charged all murder of the latter. We that a vital agree part with the death of Barnet its cause was testimony respect mere Whether hearsay incompetent. any proof bearing con- the sickness and death of or the defendant’s Barnet, case the trial it, nection admissible at bar is a much broader and more important question.' defendant was indicted procuring feloniously causing fact, and the if be a Adams, fact, the death Mrs. THE PEOPLE V. BOLAND B. MOLINEUX. of Barnet, he death

at some other time and also caused the place cer- That is is not admissible to the offense charged. the rule abundant

tainly authority established general by and justice. founded of reason upon plainest principles which there an only upon question opportunity Barnet’s minds to differ is events whether the connected sickness as to form and death are so related to the case at bar an rule and exception proof thus general bring was given at the trial within some one of these recognized exceptions.

The issue this case was whether the was guilty the death of Mrs. and not whether he was Adams, causing In a the death of Barnet. more guilty causing specific sense the issue was whether he sent errand of its upon death, mail, from which the through deceased, package through mistake, took the killed deadly her, or to be still poison more the issue whether the defendant specific, wrote the direction with the upon felonious intent to package trans- mit it mail to If Cornish. the address by upon package inwas fact written the defendant all the by elements of the crime were to be deduced from the res maxim ipsa loquitur.

The events of Barnet’s constituting history sickness and death did not or tend to prove, prove, the fact that the de- fendant wrote the address poison that event- package came to the hands of Mrs. ually Adams, and that was the material issue at the trial.

The death Mrs. Adams resulted from poison administered her real hand, own but the author of her death was the who made use of the mail to person transmit to some one the substance that death. deadly produced any con- inquiry of the author of identity cerning great crime, where the evidence is purely circumstantial, human mind instinctively at results adopts processes that are arriving not sanctioned the rules evidence. The hardened and habitual criminal is more to be likely suspected than one who had never com- a crime before. If the mitted party suspected committed a XVI. VOL. REPORTS, NEW CRIMINAL YORK aor series means,

similar crime the same or similar before by his such far to establish these facts crimes, proof goes and for which mind of the offense guilt popular charged he is on than trial; and is better established yet nothing rule on trial for a specific that the vicious character of person his char- offense himself makes shown, cannot be unless he acter or becom- the events of his life a subject inquiry a crim- witness case. lío matter how notorious ing inal on neither his be, reputation trial party general him as nor other offenses can be proven specific legally against That such evidence of of the offense proof charged. guilt introduced, and has when persuasive influence great not courts and the law does doubted; be but juries, connot an the it to be the trial of issue concerning permit given upon offense. or on for a innocence trial specific guilt party issue in is bear The reason that such does not proof upon is since it does not follow and hence it case, misleading, is crime, many, who has committed one or guilty that party some for he is trial. of other crime on death

It is said that the evidence Barnet’s culminating of death tends to as the author identify the defendant another Adams; Mrs. but that is only way asserting the defendant of that the commission proposition general another tends to that he committed crime, one crime prove and no in what or often is matter how that form, proposition it or how it is may asserted, plausible appear, persuasive since it violates a erroneous and misleading, salutary principle in all of evidence which should be cases of the law applied or actual innocence. without question regard guilt without cannot be convicted down the breaking If the guilty law has erected-for the which the every barriers protection is crime, it better that should they accused escape person life or of an innocent should liberty than that the person rather I think evidence to Barnet’s sick- imperilled. relating for a moment death would not be considered compe- ness fact that it creates a upon for the impression but strong tent B. MOLIWEUX. THE PEOBEE V. ROLAITD the author also he author of his death must the mind that the was caused both death since in cases death, of Mrs. Adams’ deceive ourselves similar means. We attempt may words and that it admissible prove phrases by arguing else or or the absence intent, identity, mistake, something to the gen- in order to the case within some exception bring eral but what is the mind all the time rule; thought, so and criminal difficult the vicious agency suppress, Mrs. that caused the death of death of Barnet also caused the Adams. such of law for rule that excludes be, and purpose is, probably tendency contrary of the human but since was intended to curb mind, the law of the mind from speculations and to accused guard of error its result I am operation, maintaining law in all its and not for integrity undermining qualifi- cations that rest no reasonable or basis. logical

The cases cited to show that of Barnet’s death was proof admissible to that the defendant wrote the address upon sent to have package Cornish all been explained opinion and it is Judge Werxer, to comment unnecessary them further than to none of say my opinion them to the case at apply bar. When these cases all the considerations urged behalf of the have been People given due it is still weight, safe to that the say to the question is competency no means proof at is clear, but best doubtful, very and, therefore, the and accused, not the prose- cution, should be the benefit of that given doubt. is It so difficult for the human mind to discard false theories that as- sume the of and so to disguise truth, easy substitute suspicions and for speculations evidence of facts that proof general bad character of the or of accused, in participation other crimes, which is the same would no practically doubt be of thing, great aid to the in a conviction People for the procuring specific in offense the indictment. charged Such in a proof doubtful case turn the scale might the against accused, but the law, for obvious does not reasons, and it is permit it, dangerous REPORTS, VOL. XVI. CRIMINAL YORK NEW it th&t theory the rule upon vague

subvert identifies noth- which means of offense as the author charged, accused is that he guilty. it or tends to more than that proves, prove, ing he Barnet, death of If or caused the the defendant procured is con- offense, but to be indicted and tried that is liable when him, of justice require trary plainest principles all from clear hmself Adams, of Mrs. accused poisoning the same charac- another of in crime suspicion participation case' If was admitted ter. the Barnet evidence properly is ad- case of other crimes it must follow that proof every is said in can as it missible, said, since in case it every as the the accused that of the other crime identifies this, proof author real of the crime charged.

If wrote address poison package identified, was he is but sent to Cornish then proof sent to Barnet at another time he another proves package is that to the address. All it proves possibly nothing regard indictment, he was of the wicked act capable charged char- another bad and that way general only proving all not act, even but acter, by reputation, specific . is not admissible. agree defendant with the

While chain of to connect the proof is no Barnet defective that there poisoning fatally mail to show that he ever sent him by competent testimony or otherwise of Kntnow which it is said the bottle powders contained the if the link had been poison, yet missing sup- it would make all more only proof plied dangerous The defendant to answer incompetent. required of Mrs. and not the Adams, death charge causing charge the death of but whole course Barnet; causing he and the of the court was trial rulings really substantially both answer since this constitutes charges, required error of law defendant is entitled to have clear the judgment as this reversed, conviction result a- may possibly it is the of this new trial within court ex- scarcely province the facts. opinion upon press any

THE B. PEOPLE V. ROLAND MOLINEUX. a 'shown to Comparison disputed writing writing is eh. allowed genuine 36; now statute. (Laws 1880, Laws 1888, eh. is not clear It what 555.) legislature very meant in these statutes words writing,” “disputed while I think the acts by construction these my given is brethren rule that statutes quite liberal, notwithstanding I common law are to be construed, changing strictly yet am to concur in it is on view, their since based disposed that other construction would render the ground any legisla- tion useless. practically I Ch. J. for vote a reversal of this on judgment

Parker, that the ground court erred testimony receiving Doctor to tire effect to him in his Douglass that Bamet stated last he illness that had received box Kutnow powder the mail. The declarations of cir- through Bamet under the cumstances disclosed were not physician competent show that received Bamet Kutnow mails. powder through As the fact thus to be established was sought one vast import- ance, the taken the admission exception re- testimony a reversal of the quires judgment.

I dissent from that part opinion which, prevailing effect, holds that had the fact been established by competent evidence that Barnet had taken a dose of Kutnow powder he cyanide containing mercury received through nevertheless mails, the evidence to show that the tending mailed that Kutnow to him is powder inadmissible on the trial the defendant for the of Mrs. Adams. killing Of course it is not admissible unless it tends to prove Molineux the death Mrs. responsible Adams. If it does such tend then it is responsibility, admissible, the facts establish that proved although defendant com- another crime. It often mitted said carelessly trial under an cannot indictment People prove facts show- another that defendant committed crime, ing statement which the addition of the is incorrect without qualification: Unless the other crime also facts tend to establishing establish the 192 REPORTS, VOL". XVI. 35TEWYORK CRIMINAL is he being the crime for which commission defendant of by tried. far of it—so out in this court—nor

There is no controversy com- evidence as I rule that know, general touching the trial is not admissible mission him of other crimes by rare occasions is on only of a crime. It defendant with charged defendant aby crime commission of another proof crime toward establishing either necessary helpful irrele- ordinarily which he is Hence charged. necessarily would its admission while at the same time vant, that in a a defendant so operate prejudice jury against courts Therefore doubtful it control the verdict. case might not be should prejudiced decided that a defendant long ago him committed by of other crimes the admission of evidence by the crime committed which in establish that he no wise tends to has never for trial. But it whose commission he is on can- that the People held court of authority by any responsible those facts when crime, facts another not prove constituting crime committed the also tend to establish would accomplish for which is on trial. he Such holding de- the absurd result of a rule intended prevent permitting because from the eyes jury fendant being prejudiced as to of his in certain eases prevent life of crime to so operate him of the facts to convict from People necessary proving' alike justice, the crime The interests of require charged. of the innocent, the conviction guilty acquittal this rule its entirety, make it the courts to preserve duty re- from the it will be prejudice a defendant by protected unrelated crimes committed from the evidence of other suiting will, from not be him, prevented while People proving crime which tend to facts of another and related establish defendant of the crime commission charged. and in this cases both England country There are many the commission of are People permitted prove where the defendant, because tended to him crime another for which he trial. of the one standing Among guilty V. THE PEOPLE B. MOLINEUX. ROLAND N. Y. them he found the v. Place, following: People v. Mc v. 585; 561; Van 156 N. Y. People Tassel, People Y. 150 Y. v. 148 N. 365, 386; McClure, N. Laughlin, People 135 95; v. 136 Y. v. Harris, 443; N. People Murphy, People Y. v. N. v. Y. 451; 13, 32; 107 N. People Dimick, People 339; 104 Y. Y. Everhardt, N. Pontius v. 82 N. 591; People, v. 83 Y. 80 N. Y. Hope N. v. People, 418; Mayer People, 364; Pierson v. v. 79 N. Y. 424; Coleman People, People, 58 N. Y. 555; v. 56 Y. 591; N. Copperman People, People v. Zucker, 20 Div. 154 Y. Slant 363; affd., 770; N. App.

v. 4 Park People, Crim. Cas. Ala. 132; Hawes v. 88 People, 37; v. 4 Y. v. People Otto, Wood, N. Crim. 149; Rep. People 3 Park. Crim. v. 132 Rep. 681; Jackson, Commonwealth Mass. 16; Commonwealth v. 8 Met. 235; Common Bigelow, wealth v. 4 Stone, In Met. 1 C. R. In 43; Held, re H. 46; re 1 Smith, H.C. R. In 1 49; re C. H. R. In Coffee, 52; re 4 C. H. Dougherty, 166; R. v. Commonwealth 133 Johnson, Pa. St. 293 ; Commonwealth v. 156 Russell, 196; Mass. Rex v. 15 Cox Culclough, Crim. v. Cases, 92; Gardner Regina and Wife, 3 Foster & Finl. 681; v. 12 Cox Cotton, Regina Crim. Cases, v. 400; 18 L. J. Cas. Regina Geering, Mag.

215; v. 14 Regina Hoeson, Cox’s Crim. 40; Cas. Machin v. Atty-Genl., 17 Cox Crim. 704; Cas. v. 12 Regina Roder, Cox Crim. Cas. 630; v. 15 Regina Cox. Crim. Flannagan, Cas.

403; Goerson v. 383; 99 Pa. v. Commonwealth, St. People 348; Seaman, 107 Mich. v. Hester 88 Commonwealth, Pa.

St. Krann v. 139; 87 Pa. Commonwealth, 301; St. Brown v. Commonwealth, 76 Pa. St. v. 319; 64 Mich. People Foley,

148; ; v. People 71 Cal. 563 Rogers, Commonwealth v. Choate, ; 105 451 Mass. Rex v. 4 Clewes, Car. & 354; Payne, Com v. monwealth 354; 119 Mass. McCarthy, v. Commonwealth Miller, Cush. 244.

It to refer to these unnecessary cases as it detail, is suffi- cient for my present purpose say that each one of them presents ease in proof facts show tending to commission another on crime trial was Vol. XVI—13 VOL. XVI. CRIMIXAL HEW YORK REPORTS, fact establishing

admitted for the of aiding purpose denies no one Indeed, that he committed the offense charged. future nor that that this has often questions happened, it is instead but will and should happen again again; inter- as rule not within the said effect that this case is this facts of words, those cases. preted by called—created case do it within exceptions—so not bring assumption those cases. The proceeds upon argument as large to; added but that the are not exceptions as should this trial began a number had been created when establishing decisions instead of these be tolerated, treating be of another crime may proved the facts that principle com- is whenever their tendency the People by crime mission of the charged. Underhill ; ed. sec. on Criminal Evidence (9th 48)

Horton Causes Trial Brief—Criminal ; on Evidence Abbott’s (sec. 58) “ statement that Gen- in of the are cited —(sec. support 598), is to prove of other crimes competent erally speaking, motive; it to establish crime when tends (1) specific charged a common of mistake or accident; (4) absence intent; (2) (3) or more of two scheme or commission embracing plan .tends to es- that of one crimes so related to each other proof with tablish others; person charged (5) identity This list of excep- commission of the crime on trial.” has extended in terms in some tions opinions for the it is sufficient pur- cases but cited, supra, length of this then discussion. argument proceeds poses a an to show that evidence that finding attempt authorizing killed Barnet is not within any llolineux exceptions, is assumed it is not I think it and, hence, competent. is: Does the evidence of the the real test such cases crime aid the commission defendant by fairly establishing is ? And test, for which he tried of the crime being is established authorities. fairly none other, that cases have arisen where is conceded another crime It for the a was to be permitted proved purpose establishing V. B. MOLINBUX. THE PEOPLE BOLAND commission on is defendant (cid:127)motive the crime for whose Motive is an important that and more. trial—just nothing element, is one element, but it true, cases, only certain if defendant it is that the yet to establish necessary a motive in of another the crime charged, proof committing crime be Intent another for that may permitted purpose.

essential can be before there element which must be made out conviction for a another if the commission crime, and, crime on his tends intent to establish guilty part So, case on be the other crime trial, may proved.

if a defendant claims due to mistake that the killing accident, the facts of another crime may proved if People those neither mis facts tend to show that there was take nor accident on the Other cases defendant. part be found re where evidence of another crime has been ceived because it tended to on trial. simply identify person Judge v. 107 N. Y. People 427, 468, Sharp, Peckham, “ refers to a class of cases in which the facts show com mission two crimes and that the individual who committed the other crime also committed the one for which the defend ant is on trial. Evidence is then to show permitted that the defendant was the who person committed other crime, be cause in so under the doing, circumstances and from the con nection of the defendant with the other crime, the evidence of such guilt other is crime direct evidence of his guilt of the crime for which is on he trial.” In v. People Murphy, 135 N. Y. 451, the evidence another offense was held ad “ missible it because had been shown to be of the same part ” criminal scheme as the main offense.

An examination of the case cited, supra, discloses still other situations in which the of another proof offense has been sanc and tioned, those cases show that almost every element essen tial to a conviction for crime either has been established or the it has tending prove been and supported of the commission by proof strengthened another crime by In same not party. one of those cases is it suggested that 196 XVI. VOL. REPORTS, NEW YORK CRIMINAL in not be of a crime that may proved element there is any rule, laid down the distinctly this court long ago and way, as generally, the authorities it be as seems to established an fact constituting any follows: “Evidence to prove tending is competent, in an indictment of a crime element charged of some other it the prisoner tend to guilty although prove And conclusion 56 Y. 628. this erme.” Weed v. N. People, ex cases by in three has in court recently been followed this Tassel, v. Van as comprehensive. People pression quite of other “Evidence Y. it said: 561, N. where is inadmissible is not relevant, transactions, otherwise material and crime;” People it another because tendb to merely stated court carefully v. N. Y. where the Place, 585, 598, “ It an follows: sentences, rule its two entirety of one crime commission of law that the elementary principle another, trial for where is not admissible evidence upon has guilt' to show that the defendant its sole purpose more liable would, be crimes, consequently, But if evidence is material the offense commit charged. it is not inadmissible tends relevant to the because issue, other than the defendant’s crime to establish the guilt Y. 365, v. 150 N. McLaughlin, one charged;” People broad we have a and compre to the same effect. Here 386, is the facts con justice: test—one that looks toward Do hensive tend to establish one or several the other crime actually stituting j so, If they may proved. of the crime charged? elements to show! for the competent this test it People Measured by con came to his death of mercury Barnet through cyanide from a I in a dose of Kutnow taken box received powder tained mails, view facts cireum-l him through to show that one mind con-1 stances proved tending strongly executed of the details of and one both ceived all hand crimes.[ of view,I I shall -discuss the evidence from that point not But if to to show that even we assume! for it is my purpose attempt can to sound that the prove the contention be facts People eon-f only are within of the they another crimé one stituting when THE PEOPLE V. ROLAHD B. MOLIHEUX. within clearly the Barnet evidence

exceptions enumerated, establish enumerated it tends that exception fifth “ of with the commission of identity person charged crime on of the evidence trial.” There are features of sake two of other but bear exceptions, the one named will be considered. only brevity of discussion after a prevailing opinion, preliminary “ The it is said:

the facts to the death of Mrs. Adams, relating final have next and of would case step prosecution been to the handwrit- prove defendant’s connection with of done, the address This it ing poison package.” conceded that a facie case have been established prima would on the of Evidence to that effect part People. given three witnesses and of by lay also a number handwriting If experts. But were not there. People obliged stop there were other evidence to show that the defendant tending sent the Cornish, it. poison was the duty jrackage officer to it to Of prosecuting the court and the present jury.

course no one saw the who mail sent person and, package aside from the proof resort had handwriting, necessarily had to circumstantial evidence to who was the prove sender. sent to Cornish package contained a bromo seltzer bot-

tle filled bromo seltzer in which had been put cyanide and Mrs. Adams mercury, on a dose from that taking bottle for sick headache obtained such a quantity cyanide as to lose her life. mercury Cornish also took a small dose it- did but not fatal. Cyanide is a mercury rare and unusual not poison, on sale kept druggists generally strychnine many poisons are, and the books of the medical chemical record professions five only cases, prior these, death Dr. poison. Phillips, physician who was called to see Cornish, that he suspected had taken because mercury cyanide between the similarity him and those symptoms displayed by exhibited by Barnet, whom he treated a little over a month The fact previous. (cid:127)= VOL. XVI. NEW YORK CRIMINAL REPORTS, lives of two persons

that an had been made attempt natur- within brief a this rare and unusual poison so period it towas whose to the state those ally duty suggested find likely murderer if would appear that it possible quite showed that The autopsies one sent both person packages. that both Barnet and Mrs. Adams died from that poison, he his the Kutnow of which Barnet told physician powder had mercury. was found cyanide partaken

On hired one Heckman 27, a letter box was from May rent the name of H. Barnet. Barnet did not C. as the Heckman identified defendant Molineux positively Barnet. To man did rent name as H. 0. who it and his gave medicines, that letter box was sent, things, patent among Some one in will made. to which other reference be presently the name of wrote to the Marston Remedy Company Barnet he be sent one letter dollars with a that request five inclosing and the address of the letter month’s treatment for impotency, Barnet had in the name of was box which Molineux rented Marston sent blank repjy Remedy Company given. to H. Barnet at sheet, addressed 0. letter private diagnosis thereon box as with directions that the questions requested, of the answers to the answered. author questions of himself: description blank gave diagnosis following (1) chest man; measurement (2) thirty-one years age; (3) single waist measurement inches; thirty-two inches; (4) thirty-seven had in his consumption business family; (6) there (5) and com- contemplating matrimony; eyes (7) (8) sedentary; treatment (9) “yellowish;” seeking impotency. plexion no described the real H. C. who respect Bamet, was a This one hundred and man but ac- eighty pounds, large weighing evidence it described Molineux with People’s cording He was was accuracy. single; thirty-one years perfect age the letter was month written; his tailor very him less than two months before and measured testified his measurement chest inches and thirty-seven waist the death of his thirty-two inches; measurement certificate B. MOLTHEUX. V. BOLAHD THE PEOPLE of consumption; she died that maternal showed grandmother matrimony; contemplating his he was business was sedentary; his and complexion, eyes had an to observe jury opportunity “ seek- he was and which the contend are yellowish,” People Holineux 1898, 1, a June for for on ing remedy impotency, in- name, his own wrote a Bums, letter to Dr. James signing sent a remedy and cents closing twenty-five directing were envelope letter and the to his Hewark address. Both the im- for was in shown that the remedy it was put evidence, blank There was also evidence that the diagnosis potency. ar- no and it needs of the defendant,

was in handwriting to had the an assertion that the right to jury gument support was man who find all this Holineux from evidence that own Barnet for his and used the name of used this letter box Holin- then, to the claim the People, purposes. According letter himself as the renter of the box eux identified positively in the Barnet and the seeker after remedies for impotency as and Heckman identified him case, positively. in case estab- of Holineux the Barnet being identity at to show the facts and were

lished, People liberty case the Barnet and the Cornish case were circumstances must have from a character that resulted they necessarily such mind. To shown have that would neces- the action of single the defendant as criminal identified actor in have sarily Cornish. It to turned out that before the the attempt poison was made Cornish some one hired a to attempt poison private as in the name, and, in his Barnet it was case, box not letter nor him. Cornish, while How, Holineux hired by per- box in Barnet’s name hired the at he did Heckman’s, sonally hire the box at at 1620 Koch’s, not personally Broadway, hired Cornish’s name. But it seems that Koch, which letter boxes private renting in addition who had persons and confidential correspondence wished they personal channels of out their mail regular keep matter, sent called the “Studio,” on publication out December 31, before the death year about of Hrs. Adams, Holineux CRIMINAL VOL. XVI. NEW YORK REPORTS, ‘ ” “ for a asked which he wrote a letter to Editor Studio/ Koch sent months later About six copy paper. one of his business and Molineux some circulars relating December Between them his letter boxes. described private called Koch at place Molineux on T7, 1898, he was not but said boxes, business and talked about the letter called make for one he only an prepared arrangement another a friend. A few and on December 21st later days but Cornish, man box name of H. called rented a he—Cor- Koch court that testified whén Cornish stood up nish—was not who rented the box. the man Kutnow one wrote for

After the of the box some hiring in directed that they the name of H. Cornish and powders sent 1620 which the stranger to the letter box at Broadway same kind blue and the was written on the hired, letter as Molineux top, with a emblem at the used paper, tri-crescent in for a Burns on June 1st letter Dr. James asking were sent for Kutnow remedy powders impoteney. 1620 in but mistake Broadway pursuance request, in box. A letter was also written on were placed wrong in emblem as blue with the tri-crescent other stationery cases Von Mohl & Cincinnati, Company, requesting five trial of for the address their remedy impoteney, given days’ This letter was not written Cornish, being Broadway. ” was “ name of the of Von Mohl & Com- Calthos remedy at 1620 and a box of it was sent TI. Cornish pany Broadway. in his Cornish, but sent á name, letter, Some than person with the tri-crescent emblem also written on blue paper referred to Frederick Stearns to, as in the other instances & A. one A. Detroit, Michigan, concerning Harp- Company, which the address of H. Cornish was as 1620 ster, in given I refer further to the shall not Harpster incident, Broadway. as disclosed is one of considerable importance which in was a Harpster other than to record, say great passing had taken sides with him in Cornish, and Cor'nish’á friend of Molineux, with thus of Mol- arousing enmity controversy B. MOLINEUX. V. POLAND PEOPLE THE writ- beside his injury looking took other steps who ineux, in information for confidential referred to asking the letter ing did if he employers, from his former relation to Harpster write it. seltzer of bromo a bottle the mails

Cornish received through resulted dose of of mercury, containing cyanide a chemist Molineux Mrs. Adams. the death of quantities colors, kept large manufacturer of dry Prus- mercury cyanide colors from which sian blue and other dry familiar who were witnesses, can be made. Three lay letters signed testified Molineux, handwriting “ as well made, has been H. reference to which Cornish,” were blank, in the diagnosis letters and the answers Barnet aof testimony And the Molineux. handwriting same is to the in handwriting number of experts prominent is to be there gleaned aside from that testimony effect. But surrounding and the circumstances from the letters themselves one brain evidence that their writing very strong attending case the letter schemes. In each conceived and carried out both victim; name of the intended box was hired name written for were remedies each, impotency letters and the Barnet intended both the Cornish victim; as address as well the letters, hoth series of undated; were in each words; contained misspelled on the poison package, in of mercury—was employed; case a rare poison—cyanide in- the to the cases the mails were used to convey poison both of Kutnow were in cases victims; samples powder tended both both boxes; Calthos, remedy and were received at for, written boxes; at both Barnet also received was impotency, and the club, members of the same poison and Cornish were in in a headache was contained simple remedy sent to each facts and circumstances use. These standing wholly ordinary record, as do this they uncontradicted and unexplained, almost, conclusion that mind irresistibly force the and death of both Barnet and Cornish man desired the same are at it. Certainly jury worked to accomplish and plotted REPORTS, VOL. STEW YORK CRIMINAL XVI. do conclusion and if draw that liberty inference, they criminal actor will follow that Molineux was necessarily identified he Cornish because was case, positively of Heckman the actor in testimony the Barnet case both by blank. and Molineux’s of himself by diagnosis description to identify The evidence in tends the Barnet case, therefore, Cornish Molineux as the sender of the package poison wit and case, expert thus the evidence of lay supporting sent nesses who testified that address on the package poison The Barnet to Cornish was in the of Molineux. handwriting re one of the exceptions is within evidence, therefore, strictly v. is said People ferred to It opinion. prevailing when Y. have right, 107 N. that the Dimick, 13, 32, People another facts constituting it material, give proof instruc under crime have it submitted to the jury proper if this inconclusive, such be tions, although proof followed of a court in that ease should be view unanimous direct proof Barnet evidence would be competent, although mails should the Kutnow powders through sending not be made out on the retrial. on the

This has however, assumption proceeded argument, in order the retention of the relating that, justify element to establish every to the' Barnet it crime, necessary includes the receipt which thereto, necessarily relating ev- the mails. Hearsay Barnet of Kutnow through powders and its admis- was admitted the court idence to that effect on the new trial assume that sion but we cannot error, be able to es- will not is about to be ordered People care should evidence, fact competent great tablish that if ex- such evidence, close the door taken not to against' which the safety society requires for that ists, justice meted out to the murderer has not as the law demands yet Adams. Mrs. should be re- I of conviction J. think the judgment Gray, new defendant should have a trial, versed and that declarations in the admission testimony relating error THE PEOPLE V. BOLATTD B. MOLIHEUX.

made his through Barnet to of his received physician having of them the mail a dose Kutnow of his taken powders, having view, and of his condition due fact. any to that being such evidence was course, and, prejudicial quite incompetent to the the defendant. With to the evidence relating respect con- death of I have reached the Barnet, with some hesitation, clusion that it exceptions within the admissible, recognized to the of another rule, excludes proof by prosecution crime. Unless defend- the evidence was to connect the relevant ant indict- with the commission of the crime charged ment, was immaterial and have its effect could not than to his case. prejudicial But it is well established evidence of facts, which or tend the commission show, to show, of another is not for crime, that reason inadmissible against if tend defendant, under the indict- they guilt ment. If these other throw or facts damaging, incriminating, any or if light motive, intent; the absence establish they accident; or mistake, if exhibit a they scheme, involving commission of several ifor a means crimes; become they may of identification of the person with the commission charged the crime on trial, become they admissible for that purpose. of the theory was that the had prosecution

caused Barnet’s death from motives of poison jealousy attempted Oornish poison from motives of hatred pro- voked by personal conflicts and quarrels. It is that there plain could be no common motive and the theory prosecution could become only if serviceable, the evidence relating commission of a former crime would the defendant identify as the common perpetrator both crimes. In my opinion, all of the exceptions rule of general evidence men- tioned eliminated, of useless consideration, except that which makes all legal admissible for the iden- tification I defendant. cannot its perceive relevancy for the purpose proving intent, the absence of mistake, or accident. The defendant was shown to be familiar NEW YORK CRIMINAL VOL. XVI. REPORTS,

the use of chemicals and to have all the to con- opportunities coct the particular which Cornish received poison, through the mail and from the Adams of which Mrs. subse- taking If quently this evidence showed that he sent died. bottle, its Cornish, containing poisonous compound, felonious intention would no be evident and there would be room for the idea of or accident. It would mistake, ignorance, be to enter unnecessary of the other criminating proof in facts, order to those Neither is supply elements of case. it conceivable that the Barnet evidence would be admissible scheme, which involved the commission of further crimes in connection with the of Barnet. There was killing no pretense that. But there cir- sufficient cumstances of Barnet’s death to furnish for the support theory that the same person committed both crimes with other and, circumstances testified to tend an to, identification of the defendant. The of the rarity within few deadly used, drug weeks, both its cases; concealment the same kind of as taken powders, Mrs. Adams and as found in Barnet’s room after his and the death, use of the mail the sender of in connection poison, with the evidence or tend- showing, ing show, that defendant made use of the names of Barnet and of Cornish, and use of letter for hiring private boxes, various purposes, including procuring patent medicines, all of these facts if would, have a competently ten- proved, to show a dency of mental unity, similarity, plan opera- and bear tion, defendant’s identification, however incon- clusive in themselves. I for the reasons have While, briefly I think the evidence assigned, to Barnet’s death was relating not inadmissible for the prosecution’s case, the admission of as to told testimony physician, what Barnet them about the and the reception was distinct taking powders, error and, view of the nature of the case one which made, cannot be overlooked. It objectionable hearsay being evidence and as not told of treatment. With- purpose out that there was no evidence that received Barnet testimony

THE PEOPLE V. B. HOLINEUX. ROLAND admixture Kutnow poisonous any powder containing be he as it, or that took mail, any except might through inferred some time from the performed upon body autopsy after Mr. Adams’ death. If material facts should those I another am proved trial, opinion competently upon that the circumstances of Barnet’s death would be within province as connection jury pa'ss upon determining, all with the other facts and whether the same circumstances, person Barnet and and poisoned Cornish, attempted poison whether as the they pointed to the defendant conclusively criminal agent:

As to tire I concur with evidence, handwriting Judge construction of the Werner’s while statutes; but, conceding as I admissibility opinion am, evidence to handwriting, nevertheless, to concede to it such char- indisposed evidentiary acter and like a strength as, fact, to constitute a link in the chain of circumstantial evidence, -which a con- capital viction shall Such evidence is depend. entitled to be con- sidered corroborative of jury con- evidence, the defendant with the necting' commission of the crime.

In view of the this court responsibility imposed upon I cases, think capital the circumstances relied the defendant’s support conviction should be such when as; considered with the opinion evidence, convince the mind of its absolute correctness. ' of conviction Judgment reversed and new trial ordered. Werner, Opinion J., with whom Bartlett Vann, JJ., Gray O’Brien, concur; Parker, J., mem.; Oh. J., Haight, JJ., concur result, dissent as to ad- only missibility tending poisoning Parker, Barnet; Oh. Gray, J., Haight, J., J., writing; Parker, Oh. J. concurring

Case Details

Case Name: People v. . Molineux

Court Name: New York Court of Appeals

Date Published: Oct 15, 1901

Citation: 16 N.Y. Crim. 120

Court Abbreviation: NY