*1 YORK NEW CRIMINAL VOL. XIX. III. Main Appeal prom Judgment.
Court Appeals. June, 1905. THE PEOPLE v. ALBERT T. PATRICK.
(182 131.) N. Y. Murder—Sufficiency Accomplice— 1. of Evidence—Corroboration Corpus Delicti—Forgery-—New Trial. upon The evidence reviewed the trial of an indictment murder charging having the defendant with effected death of the deceased means by poison by administered an accomplice; consisting of the testimony, crime, gave latter’s which charged details of defendant, by commission its was induced narrated circumstances tending to show it was the result a conspiracy between possession defendant and himself to secure of the property the de- ceased, by a will in favor of by evidenced defendant and various trans- fers to him of all property, purporting to have been executed deceased, forged fact the defendant with the aid his accomplice, embracing such also opinions, evidence facts and expert lay, tending to corroborate such testimony, and held sufficient to warrant its submission to jury, finding and the accomplice was corroborated by proof inde- pendent connecting crime; and material facts the defendant with the corroborated, justified and as findings that the with accomplice deceased; intent to kill administered chloroform to the that death re- cause; sulted from the effects of chloroform and from no other deceased, procure the defendant intent the death of the aided, abetted, counseled, procured advised such accomplice to kill particularly him. The facts considered relating: were those 1. To the 2, corpus delicti; to the corroboration of the testimony of the accom- 3, held, forgeries various plice; involved. Also that the inter- justice do not ests demand exercise this case of the broad upon powers conferred the State of Appeals Court to reverse judgment upon grant of conviction the facts trial. In new error, therefore, legal affecting the absence of right some substantial defendant, judgment convicting entered verdict him of degree, findings, the crime of murder the first based such must
be affirmed. V. PATRICK. *2 Hypothetical fob 2. Question. Basis a hypothetical question expert A to medical assuming congestion “ co-extensive,” lungs exactly of not testimony the that was when the co-extensive, the is congestion properly objected was to shows compelling the trial court in the alteration justifies phrase- and of its ology. Hearsay.
3. as part pos- Where the issue whether of the scheme to obtain property, of the a letter re- session from the deceased to defendant questing body forged, by the cremation of his the had been statements witness, acquaintance to an deceased intimate who was called ex- as cremation, himself no pressing in conversation in favor of as letter, relevancy genuineness to the of the of the are question properly upon excluded cross-examination. by Attempt Competency Accomplice by 4. De- at Suicide Advised FENDA-NT. attempt by accomplice by of an at the of a Evidence suicide means having he testified that the defendant had advised their penknife, suicide, committing furnished him for jointly with knife deceased, the months after death of the both purpose, the some while charge forgery, confined in under the prison competent: were least the continuance of the conspiracy: prove tended at show to to by destroy proof to of his attempt guilt: defendant and bore the accomplice testifying credibility the of the that the defendant had furnished him with knife for pur- suicide and the had advised pose. Admissibility Interviews with Counsel. 6. of Conversation testify to to at interviews Permitting accomplice conversations defendant, he, together, constitute do not and counsel were when error, not to exist relation of counsel was shown reversible when defendant, him and conducted between so conversation was or the counsel, objection testimony by the or the to the not to be overheard court excluded so much of when the trial general; especially too on prove part admissions offered as was
defendant. Privilege to Counsel. to Communications 6. Waiver accomplice, it was shown Where, cross-examination upon the concerning attorney the district false statements made he had prosecution allow the deceased, not it is erroneous of tlie death counsel, had told his he to the statements prior at a date show defendant, chloroformed he had for also counsel who had told he fact that only testify deceased, being allowed he counsel same had the both the fact that guilt; own counsel NEW CRIMINAL VOL. XIX. YORK statute, waiving him from prevent privilege accorded did privilege the extension the defendant’s so permit as to exclude his statement. Handwritings. Comparison
7. bankers, a clerk of the deceased’s familiar Where who was many years, handwriting had been examined the prosecution spuriousness signatures and had testified deceased instruments, and the submitted to disputed defendant him cer- deceased, signatures purporting to have been made which tain through openings slits or only envelopes visible made them, opinion signatures, pronounced his and one *3 written, genuine, inferentially, by expert had been pronounced witness, signa- handwriting, called as a and was sliown the who was testify about it envelope, but was allowed ture but without it, expert’s that he had written exclusion of the or to the effect erroneous, regarded negligible of im- testimony, if must as even large expert upon amount of portance, where evidence was admitted questions from the that subject jury and the must have inferred clerk made a mistake in the prove that the purpose their was signatures. comparison of Affecting Eights, Defendant’s Errors Not Substantial No Cause 8. PRO. SEO. FOR BEVERSAL OF JUDGMENT OF CONVICTION.-CODE CR. 542. erroneous, rulings judge trial Concedingthat some defendant, and, right of the under section they affect no substantial Procedure, they regarded must be of as 542 of the Code Criminal of conviction affirmed. judgment and a technical Newly-Discovered Upon the of Evidence. Trial Ground New 9. newly-discovered evi- upon ground trial for a new A motion immunity accorded to allegations complete that had been upon dence as physicians, coroners’ who testified accomplice; two defendant’s concerning autopsy, had stated others there- experts medical no age suspicious from and that cause of resulted old that death after revealed; county paid had been for had been death preparing themselves medical prosecution services their was an intimate connection be- trial and that there for the witnesses will, alleged if the will have been proponents of tween valid, thereby, prosecution, and the supplanted forged nothing which if true is record shows either where the properly denied evidence, or if it newly-discovered might regarded as to be entitled credibility than to affect the wit- further regarded be so went ground judge denied the motion sub- The trial nesses. to have newly conditions claimed been all matters and stantially knowledge within one or all the trial were since discovered V. PATRICK. inception the counsel for the defendant from the of the criminal charge, the cross-examination of prose- the witnesses for the possession knowledge cution indicated the or that it could have been acquired by opportunities use of the afforded. Whether or not a new discretion, granted trial should be a matter within which was exercised, fairly Appeals with which Court will not inter- fere.
Appeal from a S'essions the Court General judgment ¡New of the Peace in rendered York, and for the county the defendant of the April 7, 1902, verdict convicting crime of murder in the first and from an order degree deny- a motion for a new trial. ing
The facts, so far are stated in the material, opinion. ¡B.
David'
Hill
The formal motion
for appellant.
new
which was
after
made
the defendant
trial,
judgment
herein on
should
court.
affidavits,
granted by
Bank v.
v.
How. Pr.
of Excise
(Union
Mott,
354;
Comrs.
13 Abb. Pr.
v.
60 How. Pr.
Purdy,
437; People
Briggs,
*4
v.
6
Y.
17;
N.
Cr.
v. Town
People
Price,
141; Ward
Rep.
102
Southfield,
287;
N. Y.
v.
71 Mich.
Vanderhoff,
People
v.
158; Hurd
25 Mich.
Wellar
30
People,
416;
People,
v.
Mich. 23;
v.
158 N.
v.
People
Y. 542;
Fielding,
People
167 N. Y.
Mull,
The motion
new trial should
255.)
have been
granted upon
was disclosed
ground
there
on the motion the
real
character of the
negative
autopsy
and the true relation of Dr. Williams and Dr. Donlin
prosecution
from
distinguished
their
tender and descrip
tion at
trial as
disinterested witnesses and unbiased public
officials.
v.
Mich.
v.
(People
Vanderhouse, 71
175; Corley
N. Y. & H. R. R.
12
v.
Co.,
Mann,
Div.
Hatch
App.
409;
142
VOL. XXX.
OBiatIXAL
BEPOBTS,
Dr.
refuse to
and to
allow
autopsy,
lin’s statements
not make
did
whether he
recalled and asked
Donlin to be
that Rice
effect
autopsy,
statements at the time
23
Y.
v.
N.
Burr
ex rel.
Zeyst,
had died
old age.
(People
v. Dun
140 N. Y.
Comm.
Johnson,
350;
v.
142; People
345;
109 N. Y.
v. Wilson,
128 Mass.
neen,
422; People
Ill.
v.
108
Hesdra,
399; Rex. v.
Dixon, Burr. 1687; State v. James, 34
G.
S.
49; Sutton v.
State,
Tex. App. 490;
v. Peo
Armstrong
ple,
144
XIX.
VOL.
CRIMINAL
NEW YORK
150;
1 Lans.
Johnson v.
163;
Hicks,
Y.N.
167
Kennedy,
Marx v.
88
11
157;
McGlynn,
N. Y.
v. Whitney,
Waterman
Jackson, Kniffen,
v.
Gray, RiceM. in committed William murder, the first degree, upon other and to him chloroform, mercury, by administering A trial he “not pleaded guilty.” When poisons. arraigned, the of Sessions of the Peace in Court General had, the convicted, York, at he was which and Eew city county in the indictment. of a verdict jury, charged the upon relied administration trial, the the prosecution upon Hpon death. of chloroform as means employed causing order deny- from an conviction, From the and judgment has to this court. trial, him the defendant appealed a new ing insufficient justify It is his contention that evidence wp trial, committed upon the verdict and errors court should reverse judgment which that this require does insist upon being award him a new trial. Especially of certain trial, evidence, which, because another granted and so affects the discovered after judgment alleges, to make it probable prosecution, by relied proof upon xix.—10 VOL. VOL. XIX. OBIMIKAL HEW YOBK BEPOBTS, is a rendered. This very would be verdict different shall to- and, justice appear order
serious charge examination defendant, trial done been upon which must of the evidence necessary, a consideration become this record The be somewhat extended. enormous size a, have been us which well burden, might lightened casts upon be- book discussion from the much of by eliminating appeal testi- tween court and counsel and much repetition been neither to mony. The matter could have of benefit defendant, nor to the This case has' the interest People. all is invested with which characterize seriousness, cases, which the infliction of the death penalty depends crime proof theory presumptive charged. was that defendant People conspired Charlesi Jones, valet, or, called, F. as sometimes secre- Rice, to kill Rice and that the defendant tary, procured chloroform, Jones to administer to him accomplishment their joint This purpose. 'motived purpose, say, by the desire to obtain of Rice’s will estate; possession through in favor of the defendant and various transfers through him of all properties,; have been executed purporting Rice, but fact, had, the defendant forged by with Jones’ aid. The is based defense denial that Rice’s death was effected violent or that means, it was the procurement of the defendant; proposition *10 advanced that forgeries home to the brought defendant, if or, the evidence warranted the that they finding Were, that that fact did not, necessarily, fasten him a upon criminal in the agency murder.
A careful of this reading record and a consideration grave of the matters of have proof convinced me that the jury reached a ust j conclusion and that there is no warrant for, nor do the interests of justice demand, our interference with the judgment. I no see occasion for the exercise in this case V. PATltlOK. court, the broad conferred state by power new trial cases, grant reverse conviction capital the indictment. essential, In evolution of common law, become in order to homicide, prove convict a accused person that the crime had, fact, been committed. corpus that which is to the fact delicti, crime, say, body a murder had been to be satisfac- committed, was required established of death and the death torily by proof caused rule by the criminal the accused. The agency existed under the Roman civil law and the English judges it, adopted because of the instances number of- deplorable execution innocent convictions persons, upon resting upon merely no circumstances incriminating having sup- port, either, certain some of the death proof sup- posed or in victim, that of the fact of a homicide. Hale (2 P. 1 Starkie 290; C. Evid. 575; 30, 3 Greenl. Evid. secs. This humane 131.) rule of the common law was incor- early porated of our laws and now in sec- body embodied tion 181 of the Penal which “no Code; provides person can be convicted of murder, the death unless manslaughter, to have been killed person and the fact of alleged the defendant, as killing are, established as alleged, each, independent the former facts; direct latter proof a reasonable beyond doubt.” The death of Rice undis- being puted, the question, which we is whether the consider, evidence was so and so strong cogent jurors might, justly intelligently, say reasonable beyond doubt, caused death was the criminal by, defendant. agency was not claimed that he committed It act, by Rice made for the die; prosecution had the con- voluntary fession of Jones that who it was he did it, induced and being aided thereto But defendant. the defendant was a in the commission principal under if crime, our law, *11 , 148 VOL. XIX. CRIMINAL NEW YOKE BEPOBTS, if hie, or or absent; whether it, present, abetted aided and or counselled, induced, commanded, or indirectly, directly, sec. Code, it. 29.) to commit another (Penal procured these to the jury upon questions trial, therefore, presented was established the. death it was whether evidence, aided, result was and whether result of poisoning defendant. Circum abetted, procured, by induced, determination, evidence sufficient their stantial was leave as to if it admitted, death character such being from one inference possible reasonable only guilt whole the facts disclosed. In other words, question tibíe fact was it was per the personal defendant guilt for the to act fectly competent jury upon presumptive proof in its determination. on Evid. Ruloff 720; Starkie (1 719, 144; v. 18 Y. v. 49 ib. Bennett, 137, N. People, 179; People v. 10 Y. It 423, 429, 260.) ib. N. Crim. People Harris, if found to a verdict the cause necessary guilty, only of death to have been administration of chloroform, through upon evidence with conclusive to that force pointing result, the jurors should, further, find that defendant acted with Jones of a common pursuance to effect the design death. His presence if constructive, felony evidence established that he worked with Jones towards the end and if preconcerted he was so situated as to able to and to move, aid, his in the accomplice execution their common v. design. (See People Bliven, 79, N. Y. 86; 6 N. Y. Crim. 370.)
As I have said, Jones was testimony relied upon by to establish People the criminal agency defendant in the homicide; but, it being accomplice, it Was essential to a conviction that he should be corroborated such other evidence as would tend to connect the defend ant with the commission of the crime. (Code Proc. Crim. sec. 399.) *12 V. PATRICK. facts Rice, death of in order, first consider,
I shall wit- of medical it and the and opinions: attending preceding Rice had been employed to its cause. Jones nesses as work, all a man of of a the general capacity secretary Rice of age. He was years several years. twenty-seven an apart- and occupied was a man of of age eighty-four years the time in the York. At, to, ment Hew prior city house- member of his death, his none other than Jones was a to do hold ; a colored woman came in daytime although no He had chores physician way cleaning. attendance until or in the in the upon him; early part spring, summer, Dr. the friend and 1900, when Curry, instance, latter’s physician defendant, brought by Jones, occasion. Jones testified Rice’s upon attention had been arrested article on chloro- by magazine form use; and its it to he, defendant Jones, mentioned and that, after several conversations with defendant upon subject latter proposed should be mercury given Rice, a mode as bis weakening system, ad- preparatory chloroform. The ministering Rice’s upon designs property, wdiieh his death to further, will he discussed Jones later. got deceased, a few death, occasionally, weeks before his to take some mercurial pills, which he obtained pre- scription that Dr. Curry him given some attack of during his own. Their effect was to cause a which light diarrhoea, soon, over. The passed defendant, then, Jones testifies', furnished him with some stronger mercurial pills, affected Rice by a severe causing diarrhoea. Dr. Curry attended him; but ignorance his taken having the pills. before Some days death, the deceased being made ill by bananas, eating suggested a friend cure for indigestion, had resort to again, the mercurial pills'; with the result, however, of benefiting physical condition. On Friday Saturday, 21st September 22d, he was NEW YORK CRIMINAL VOL. XIX. *13 rather weak and ill, times, on at delirious. On Saturday, well, he felt Sunday, having slept and Dr. better, said Gurry he was well, at a In getting along very little before noon: Rice was evening, when, about sleeping soundly; eight o’clock, while still sleeping, Jones saturated a with the sponge of a contents bottle about two containing ounces chloroform, him given by defendant, as he with for its says, instructions use, it placed within made from a over cone it towel put the face of the He left the room for sleeper. minutes thirty and, then, removed the towel-cone from returning, face, threw it into the kitchen and burned range He up. opened the windows, out room its usual straightened appearance, telephoned to the defendant that the deceased was ill and very sent a for messenger Dr. The latter arrived Curry. twenty some minutes in afterwards, with the company defendant, after an stated, examination, that death had occurred thirty minutes, before. An more, undertaker was for sent defendant, who, shortly arrived with after, assistant. an Dr. filled out a Curry blank certificate with statements of death from “old and weak heart” and as age “immediate causes followed indigestion collocratal diarrhcea, mental defendant worry.” directed the undertaker have the remains cremated and not to embalm but, them; when afterwards, it was explained cremation could not be for within arranged twenty-four hours, ordered them to be embalmed. The assistant embalmed them that night by fluid injecting into embalming the arteries; which had the testified, effect, the blood driving back into the heart. The cremation was to have been on Tuesday but, morning; before it could done, the remains were taken charge (cid:127) the authorities and removed to the where an Morgue, autopsy performed Tuesday, 25th. September
As bearing probabilities the death being due, not to the of natural operation but to some criminal causes> V. PATBICIt. few before the medical considering testimony, agency, in in Jones’ facts circumstances, part, appearing witnesses, of other not inappropri- and, part, might, when that, be referred to. Jones testified ately, August, he told defendant that Rice was health, improving defendant to him “don’t Rice is too said think you living our interest.” he was asked long Upon assenting, . . some him out of . way “suggest way get if he would let him Mr. some when Rice (defendant) night, *14 he him would come and out sleeping soundly, put Before in there had been some way.” that, summer, conversation -between them chloroform. about The defend- ant asked him if he could for that he it some; wanted get the law was purpose that too here. strict get Jones procured some to be sent on his brother in Texas by it to the defendant. gave The and the receipt sending it were testified to his brother and by express agents. Jones, further, testified in that, the afternoon of the day the death, after defendant, told him of Rice’s being in improvement health, him a bottle of oxalic acid to gave administer; being which would vegetable poison, paralyze the heart'. Witness tried to induce Rice to take some diluted in water; but, it, he it out.” testing “spit defend- ant, known not to have though acquaintance, relations, Rice, with was solicitous in frequent inquiries Dr. Gurry, testified, latter about Rice’s health. On the before day the death, he called him afternoon and learned from that, the doctor weak, he though very physically, thought Rice would be able to out in week. go- Letters following friends, were written the defendant the deceased in Texas, the middle of about September, statements that the deceased “sick,” weakthat “he could “growing very not live “heart that action was very long;” weak,” growing very or “that it was evident could hold out long.” VOL. XIX. CRIMINAL NEW YORK after hours about forty-three was performed,
The autopsy a coroner’s Donlin, physician, Dr. death occurred, by also coroner’s of Dr. Williams, physician, the presence The two chemist. Witthaus, A. expert of Professor R. the body, except testified organs physicians condition, normal as affected by except were lungs, and Professor Witthaus fluid. They agreed embalming Donlin their Dr. lungs congested. of their all while Dr. Wil- over;” speaks “congested being liams characterized it as an “intense the lungs congestion (cid:127) —co-extensdve with them.” found Outside lungs, they no of disease to and, evidence account death their beyond condition, showed small congested nothing patch beyond of consolidated tissue about the size of a cent twenty-five from and from piece. They testified, effect, experience experiments, inhalation of some nothing gaseous irritant could have such produced a general congestion, that the lobular consistent with some patch, while congestion, was insufficient to account for condition Dr. observed. while Donlin, did not know testifying the proximate *15 of cause death, was unshaken in his statement no cause that for it was in other observable vital Dr. organs. Williams firm in equally similar mailing statements. He had made of the study and from case from that, experiments upon animals, he was of the that opinion chloroform inhaled would act as an irritant and upon cause lung that precisely general congestion the case represented of deceased. The effect of chloroform upon system, says, whether as a negligible result, as an irritant of causing congestion lung, dependent upon extent which the admixture of air is n permitted in the administration of the drug. Professor Wit- thaus, an expert chemist, with large experience in chemical of analyses bodies, testified that he took away the intestines, stomach, liver, and kidneys heart of the deceased. His analyses FATBIOK. V. and, calomel, obtained as mercury, the presence revealed its death, presence to cause sufficient in quantities though life. says He existed have a larger quantity indicated and he agrees no mercury contained fluid embalming that the lungs, no effect would that Donlin with Dr. bleaching arteries, beyond the brachial through when injected em- formaldehyde the use that them. thought He for the test with the analytical interfere would balming process Loomis, P. pathologist Dr. Henry of chloroform. detection liver heart, examined in autopsies, with much experience relatively normal, them and found the deceased kidneys and he for death gave no cause found He to a man of his age. a congestion will that no disease produce it as his opinion Pneu- them. with be co-extensive would lungs, less' of more or a consolidation monia, says, produces there assuming To a hypothetical question, lung. lungs co-extensive found a lungs congestion found, death was no other cause and that themselves there death cause he answered that his opinion administered through vapor, some irritant gas, would produce such irritant mouth; nothing except if inhaled it, would cause such a Chloroform congestion. had shown animals excessive experiments upon quantities1, of ad- with the the amount varied degree congestion if at all air. A congestion, produced mixture atmospheric at the would be trouble, dependent portion a kidney .all over. never lungs were examined defendant,
In behalf of the several witnesses assumed conditions, medical ques- pathological had been made which resumed the facts tions, *16 for the and in the the evidence appear People For the of Dr. defendant. example, a witness the Curry, a to Dr. Edward W. Lee, surgeon was following question put “Q. that and Doctor, assuming without physician, objection: XIX. VOL. HEW CRIMINAL YORK to death that prior age; a eighty-four years patient from the months for several of the lower limbs dropsy the revealed the down, findings lmees and that post-mortem normal, with a slight the brain otherwise heart normal; to be orifice; lungs aortic the contraction the and pulmonary with the the co-extensive congested congestion slightly, in the blood right small lungs; coagulated quantity surface firm, the heart; capsules adherent; gran- kidneys ular, cysts-; and a number of small distinct, markings' fairly and on that his death patient day preceding urine, troubled with his and had to urinate frequently; liver and that intestines were normal, negative, death day patient preceding deliri- delirious, more of and was less the day, during some ous of his was a death, day patch there consolidated lobe of tissue lower lung lung; the- the right about size cent twenty-five lungs piece; what would be the cause watery; would you say death ?” The witness answered “congestion lungs and diseased It was' his kidneys.” while opinion that, irritant will both tuber- gas produce congestion over lungs, culosis, pneumonia disease would it, cause kidney that, in the case assumed, the condition of the occasioned heart the congestion. testified, subject He admin- istration of chloroform, that, under circumstances the- as stated Jones his narrative of the murder, odor should been detected -within half of an three-qpartersi hour after- wards, when confined in though, cone, odor would not be so in a as strong room, when administered in the ordinary
ways; that the cone should have fallen from the face patient, the result of muscular action produced first effects of exciting the inhalation of the chloroform; might administered such a cautious, stealthy, way not to awaken the person and, referring burning *17 V. X'A/X'XIXCXC. chloroform in the and range, towel spoxige Jones hour, if first, exposed combustible, though was not cloth. from the evaporate to the it. air, might wholly open l)x\ to a answer hypothetical Janies Ewing, pathologist, Lee, Di\ that addressed to similar to substantially question, for was accounted death was of the opinion to chloroform poison- and was not due presence pneumonia of chloroform. in the use he had no though experience ing, Leuf E. Alexander Girdner, Love, John H. Isaac Doctors in answer to and testified Mullican, Kenneth W. physicians, symptoms similar hypothetical resuming bodily questions, deceased, subsequent, conditions pi'ioi*, n there were no indications' death. They agi’eed opinion was due to and that death death from ehlorofoimi poisoning of them said, caused, by nephritis, oedema of some the lungs, not an chloroform trouble. In their opinion, kidney extent claimed by irritant tissue, appreciable lung the de- of chloroform to administration the prosecution; of awakening effect to, testified should have ceased, as should have discoverable him from his and its odor sleep Doc- afterwards. of an hour within a half, three-quarters, death former, might, tors Girdner and Love conceded, cone was being while the have seconds, within thirty happened inhaled lattex*, that chloroform might fitted and, under the circumstances death, been an cause of intervening Dr. Aus- Sunday. detailed happening prosecution testified, answer to eminent tin Flint, physician, that death was due to defendant, question hypothetical facts in the evidence, was no that there oedema lungs' stated that mer- to chloroform. He due its being assumed, months after its being in the found system bo could cury does, often, pro- that chloroform conceded He administered. assumed that while he that, of the lungs congestion duce noth- there congestion, due condition the cedematous *18 XIX. VOL. CRIMINAL YORK NEW the In rebuttal, congestion. he attributed that to which ing a Dr. Hobart A. Hare, several physicians. examined People of a made study special from Philadelphia, physician effect that testified the chloroform, including drugs', man, under state of a the face sleeping a cone upon putting witnesses for Peojfie, to those detailed facts similar be to-cause death. would deceased, in the ease as existing of death natural causes no evidenced that the facts said He of chloro- amount of such a large administration and that the cir- and the the heart form act to depress, powerfully, would as facts, in the assumed He saw nothing system. culatory several months of the deceased condition describing that death approximate, to evidence death, to his prior Doctors condition the lungs'. for an oedematous to account A. Schultze-, phy- E. and Otto Robert C. Alfred Thayer Kemp, opinions from experience express competent sicians Dr. Dr. testified. chloroform, Kemp agreed the effects adminis- such an follow as effect of Hare that death would claimed to be the fact. as the chloroform, tration prosecution conditions, that Dr. was of opinion nothing Thayer de- been those assumed prosecution having for his death and ceased, prior symptoms accounted Dr. Schultze was cedema not consistent with lungs. disclosed the conditions opinion nothing heart, weak that death was due to old age, showed autopsy Dr. John B. McAllister, mental trouble. Finally, physician on dead and an instructor pathology operative surgery room the that, into the bodies, testified come happening he saw the of the deceased and time of the body autopsy, This of the lower were no limbs. there symptoms dropsy has somewhat contra- important latter statement bearing, the defense of the based upon fact, assumption dicting condition of that there was dropsical testimony, Dr. Curry's All of these knees. medical witnesses in below body PATHICK. PEOPLE V. of chloroform,
rebuttal odor agreed opinion within the of facts assumed statement
Jones, would not an hour afterwards. be discoverable
I I medical and evidence, think the other- referred to causes, of Bice and its suffi- the death bearing upon wise, for of case. of that the ciently the feature purpose presenting well the evidence that the death jury might upon The find of the result natural was due causes, that it some criminal that the could well conclude agency. They disclosed no in natural for the death and autopsy that, cause the of the medical light it could accounted for be opinions, only in the having is, testified to Jones: happened way chloroform The assisted at poisoning. who physicians, testified to autopsy, file conditions a natural physical making death incredible. It was for the the whether jury say facts their of opinions, Professor sat- Witthaus, accounted isfactorily for a death chloroform poisoning. The of witnesses the testified the facts autopsy positively of a all over the congestion and of extending other lungs the in a normal organs being condition, to the of relatively age the deceased. The medical experts expressed opinions upon the case hypothetical assumed put they the existence of — oedema the arise lungs, must or, as Dr. of from — it, Flint expressed which was a a disease. symptom of If the jury believed who took physicians, of in part then it is autopsy, that there was no dis- certain a vital ease account the oedema. organ It is a patho- for fact logical that oedema is consequent unrelieved con- upon gestion lungs. finding mercury body corroborated as to Jones, his mercurial having given pills the deceased to weaken If doubt system. should thrown of Jones upon probability able being to administer chloroform of the cone by means left upon face, jury,. even evidence the medical light experts VOL. XIX. CRIMIKAL XEW YORK cone the effect placing believe defense, might
n him to pass cause was to deceased the face condition, weakened narcosis; or, state of once -into a think I do not almost immediately. death to be stricken by case; When this phase it dwell longer necessary will become appar- considered, rest of the evidence confederacy such facts reveal ent, my opinion, the death to cause and Jones between the defendant effort con- to come deceased, as to make it impossible moment, apparently, a.t that a natural occurred clusion death had into which 'so for the the plot success opportune entered. New Texas to from the deceased
Jones accompanied in an him lived with York, 189J, apartment *20 was The deceased Madison without other avenue, occupant. in Texan enter- which wealth, gained man he had .great childless; prises. He awas widow'er and was Jones became acquainted with one 1899; defendant in November, evening when latter under and called, assumed name, requested to see Rice some cotton business. Jones pretext told him that Rice had retired and soon left. He he, after, called at another in the with the time, same ostensi- evening, ble but did purpose; not see Rice. he occasion, Upon disclosed- his spoke a litigation identity pending Texas between and one, Rice who was the Holt, executor will Rice’s local, he wife; which had been as acting for counsel Holt. His visits became occurrence; weekly never came he to know Rice. The Holt suit talked was of and its was unfavorable aspect defend- represented by the ant. He expressed if confidence, he could great into com- get munication with Rice, the case could be settled. Jones told him that the deceased would not him and see that he was prejudiced because of against his him, examination insulting of some ladies, upon commission to take in New V. PATBICIÍ. York. he should Eventually, Jones typewrite proposed a letter as from his form Eice to after a lawyers Texas, which he handed should that, which Eice state Jones; he a citizen of Texas he was there, property settle suit. to was brought suit referred going Eice will; the executor of his wife’s she against wherein estate, undertaken of some of his dispose $2,500,000 settlements, married without theory having under the so-called Law of “Community Texas,” she entitled to one-half of his estate. other for Among grounds will, claimed to a citizen contesting become York. The Hew defendant said be would for the arrange signing and would proposed letter Jones for writ- pay it. ing Jones did write it; defendant not but, paying him, letter was Then the destroyed. expressed defendant with Jones in sympathy remuneration, inadequate he received for services, and he told him that, if “would into a business deal go him,” he would much get more. He, soon showed him a after, form a will by of half of his Eice, disposing defendant property the remainder in bequests relatives, friends the “Wil- M. liam Eice Institute;” the deceased corporation which had caused to be organized scientific, Texas artistic and *21 He literary purposes. should proposed Jones typewrite as was it, his custom to do with the letters, business papers, of Eice and he would for its arrange and wit- being signed nessed. This was assented to who told by Jones; the defend- ant of a will, which the deceased executed in 1896. This he and handed to the got defendant; who took it and pro- it, to order that he posed to preserve use might compel to one. heirs a later Wetherbee, of two clerks accept one in the Sons, house Swenson & who banking had witnessed 1896, will of was a.t Jones, approached by defendant’s to become witness to instance, with a new request will; XIX. VOL. CBIMINAL NEW TOBIC BEl’OBTS, of his position, reason could, by he Jones represented which But, moments. drowsy in one Rice to sign procure refused. Wetherbee executor, an in as be was to put though he ar- he would defendant said and the abandoned That idea hut other; act as the Jones could and that for one witness range a beneficiary he wished to such, to act Jones refused office, to defendant’s came Jones the will. Subsequently, friend to to which him, will read when a proposed end, To that as the witnesses. to act clerk of the defendant were mas- with his them acquainted make arrange Jones take them do able to employing he was which ter; commis- or as a Texas as- notary public, acknowledgments, the defendant 1900, summer of of deeds-. sioner During Dr. Jones, Curry; when ill, employ recommended to. mention not to told him was to doctor caution defendant of Rice. defendant’s name the presence ad- advertisement the use an essayed, unsuccessfully, by dressed to the heirs of Mrs. into communication Rice, get letters, purport- He induced Jones to Rice. typewrite one in Rice to him, defendant; supposed be from ing furnish evidence advertisement, response might others, defendant, the inception negotiations with him. their To which, tenor, would confidence express to- Jones a list perfect the defendant furnished plan, dates, 3d, 1900', from running August 1900, 28th, to August and the latter was to and mail address each envelope upon which, letter of into date date; corresponding might placed. took the and, Jones letters to the defendant’s pretended office mailed the With letters, he fur- subsequently, envelopes. nished carbon as had his custom, when copies-, acting which were in the master; filed, usual/manner, to he The will to have been apartment. purporting executed Rice *22 June first 30, 1900, was seen by Jones at defendant’s in the of office, early part and he next September, saw it after PATRICK. V. fur- information From possession. in defendant’s death Rice’s de- 1896, will from genuine and Jones nished by beneficial provisions more to make it, so drawn had fendant Institute Rice t'o the deceased; to give relatives for the unavail- it, practically, made which conditions under legacy, will under legatee residuary had been the it able (though institute the directors to each and 1896), legacies to em- friends and to were given of a sum of money. Legacies defendant. estate given and the residuary ployes, were legacies provisions defendant explained establishment whom given to interest persons page each was, signed will. This will apparently, Jones it. not signed Rice had but Jones testifies that Rice; and, defendant had furnished of Rice’s signature models even, and, letters instances, sign in a few he had allowed him in order of Rice, in the name checks payment wages, Jones death in any furnish standards for use after litigation. as- instruments, defendant typewrote gave securities, transferred to him cash property signed com- certain trust vaults, Rice in certain safe deposit & house. and with Swenson Sons’ They pany banking carbon and with them were handed to the defendant unsigned Jones had type- About the of September, copies. beginning 3d, written a from dated defendant, letter as Rice August and not to him to his remains cremated 1900, instructing men- has, As elsewhere, them to be embalmed. permit introduced tioned, Jones, defendant, .at the suggestion Dr. to Rice summer occasions 1900, upon Ourry during when latter was ill. He rallied after each attack and his condition continued without physical any alarming symptoms until 23, the Sept. death; on Satur- Sunday, day although weak seemed disturbed. day very mentally On Sun- he was day, better. He well and pronounced slept the phy-
VOL. xix.—11 *23 XIX. CRIMINAL VOL. NEW YORK out on during sician he would be able to Monday, thought go first install- for a $05,000', the week. On draft Saturday to to- Rice ment of a sum which had $250,000, agreed pay to the Texas, brought wards the reconstruction of mill its had off for and been able put collection Jones apartment illness. Rice, Meeting his presentment ground Baker, told him of the fact. Captain defendant at he lunch, re- arrive and deceased’s Texan counsel, expected- him, to see cent letter from Rice desire him, expressing to avoid the pay- been seen defendant. The desire of the lawyer ment of the and to prevent moneys meeting with his. old and client the designs friend precipitated Jones met defendant On conspirators. evening, Sunday upon the street. The latter had from the away apartment kept for he some ten for if fear, suddenly, Rice died days, of all should come under suspicion; having assignments Jones him of the condition property. told the improvement and of acid, refusal to the dose of oxalic Rice take that he had him the defendant left When soundly. sleeping he, him at first, the chloroform and told how use gave it, him refused; was, soon, to do the act persuaded rep- resentation that defeat their schemes Baker’s might coming and “break still in, He went found Rice up sleep* everything.” later, killed de- as narrated elsewhere. ing, him, Then, arrived Dr. fendant with summoned tele- Curry, having de- After phone. embalming completed night, took from the in a fendant securities away apartment bag, watches. bills, silver, $450 some two value, Early largo returned and directed Jones morning Monday, taken from deceased’s cheek fill out some checks book, to him. Jones did so; had theretofore out given Jones filling order, various defendant’s amounts, aggregating four Trust and on Fifth Avenue Swen- Company on the $250,000, left them. defendant later in Jones, Sons, son & *24 V. PATEICK. that, owing the defendant by was telephoned the morning, Albert, defendant’s name the in the mistake spelling been refused by for had $25,000 payment one the checks it, about if that, telephone & Sons and Swenson Sons did & all Swenson he check was that the right. say if said, and the check Jones over about inquire telephone certify “to and in ahead it was his handwriting, go (Jones’) Later, Swensons, acting it.” when called again by up he defendant, upon instructions received meanwhile from the and gave told them of Rice’s death in the previous evening them lawyer address defendant, Two after death, deceased. days to Holt defendant told Jones he had telegraphed been an contents agreement, purporting executed Holt, Rice him, by representing on 1900, March which Texan 6th, settled the litigation by said payment $250,000: better, He that it would appear if the settlement of the suit should to have made been appear lifetime Rice, rather than that he, defendant, should to have appear been him, while opposing being residuary legatee his will. The also, Jonesr- defendnt, told had he Dr. promised to $500 and the lat- pay Curry ter had said would render a bill $1,000. He told him that he had torn the carbon up copies various letters which papers, he had for him typewritten and which he kept at his office, and that he had so choked his toilet up getting rid of that it them, had overflowed, and the watchman it obliged to clear out. He said that he was afraid to bring them toup apartment, as had been planned; lest he might be arrested with them On person. October 4th, 1900, the defendant Jones were arrested of for- charge gery. While the “Tombs,” or city prison, Jones attempted suicide means of a which had penknife, been furnished him the defendant. After his arrest, made several false XIX. VOL. KEW YORK CEIMIXAL his coun- crime,
statements, commission relating interview, At sel and to district the assistant attorney. office, told latter him of facts various discovered by impos- to have been untrue and proved statements previous sible of truthful corroboration. said “wanted a He that he could statement; that the truth was consistent and always corroborated." Jones 1901, Finally, February, January, *25 told the assistant Bice by district of his killed attorney having chloroform. been He testified that had not promised immunity.
I have from the examination now extended given, very all that seems be material it- to seen Jones, to remains be how far It suf the crime credence. is deserved story ficient if facts, he is or fact, corroborated as to some material connection of with the go the the defendant prove criminal intent its Ros execution. rule is stated in coe’s Criminal there be some “that should Evidence (122), fact to, the evidence the deposed independently altogether taken which, itself, inference accomplice, leads the that -a has is committed, crime but that the prisoner only in it.” in v. implicated People (150 Judge Bartlett, Mayhew N. Y. at N. 353, Y. Crim. for this p. 513, 519), speaking court, observed that the corroborative evidence is sufficient, the in under statute Crim. Proc. if question (Code sec. 399), tends connect defendant with the commission of the and he formulated, crime this rule authority, pro “ cedure if trial, that the trial is satisfied that judge there is connect the tending with defendant commission of crime, he is bound to submit the case to the who are the sole jury; whether the judges relied on evidence is,but corroborate the accomplice sufficient.” This just; if the otherwise, or, statute is to be given narrower construc the ends of tion, justice be might, often defeated. The law, its humane policy, intends that the life, liberty, V. PATRICK. un- an accomplice, shall away by accused not he sworn person fact, as to material less some corroborated, he so accomplice reasonable as that a in his becomes facts, belief credibility safe entertained. and, therefore, to be was adduced respect genuine-
Much testimony deceased, M. as they ness W. Rice, signatures were document in appear upon principal dispute. They the will of 30th, 1900; June instruments assigning defendant bank and transferring moneys securities de- safe the four checks to the deposit vaults; order, fendant’s cre- amount and the $250,000, aggregating mation letter. one or business Every friends, the relatives, acquaintances, deceased, examined, who stated to these documents signatures not to handwriting deceased. That was the evidence of the hanker Swenson, of the deceased for of several clerks; of his twenty years, who were familiar with the of the deceased, handwriting *26 and through cheeks seen him handling write, and having two of whom had witnessed his will of 1896. Such of two of his in Texas and agents of five business correspond- ents, with whom he had been in constant communication. Baker, his and lawyer friend some to testified forty years, the forgeries. Twelve witnesses examined were sub- upon the ject, who were experts of more handwriting penmanship, or less who repute skill; stated, comparisons upon being made with conceded taken as signatures, standards, that the sig- natures in question were simulations and their rea- they gave sons, at great length, upon direct upon cross-examinations, for their opinions, with or lesser, greater, clearness degree and exactness. who Meyers Short, as witnesses appeared the upon will of disputed June 30th, 1900, testified that they saw1the deceased the will and sign minute gave description of the occurrence at the apartment. the question forgery of the signatures deceased was one fact for the jury YORK CRIMINAL VOL. XIX. NEW
and, in while the evidence of the my opinion, experts might been of their have the conclusion, jurors assistance reaching with an conscience and with a clearer mind, might, easy relied business it was to those, evidence whose know the of Rice and t'o whom signature handwriting been an wit- instances, accustomed It be that, sight. may nesses were or the test confused, mistaken, by compari- sons; but, in ac- main, jurors justified amply hav- evidence as the fact of cepting conclusive forg,ery been committed. The in corroborat- ing proof important Jones’ as to ing the various documents having him prepared and handed for he for, to, defendant; pro- duced them after the death. The evidence mate- further, wUb, rial, not as, of the crime necessarily, proving commission but as charged, tending prove confederacy, conspir- acy, the two to themselves of de- possess property ceased. It furnished a basis for the inference when the that, intended victim failed to succumb illness, to the weight as for a years, time to kill him was hoped, purpose pre- in order that the cipitated, evidenced, which the documents plot, successful. might be There can be no the mo- about question tive for the deceased. Unless he was from killing removed path, of the fruits of con- prospect enjoyment dim. spiracy growing very also, tended show It, utter absence of motive Jones murder his employer on his own For account. he was not a under the beneficiary will, nor was forged he, the several apparently, trans- gain by *27 fers of and the moneys securities, and could be of no ad- murder to him, for the vantage the who except promises defendant, come into would, thereby, possession estate great victim.
In further of Jones’ corroboration and inde- testimony, facts pendent the defendant with the connecting crime, evidence of must be several witnesses referred to The de- V. PATRICK. far as the so whom, with and nephews, a brother ceased had sev- and had amicable, he were relations shows, evidence his or less more he terms ivas whom friends, eral Baker, was a Captain friends his Among nature. intimate over for forty counsel his personal of a law firm, member Texas of 1896. He will gave executor of conceded years and de- the plot in exposing value considerable who had man, a strong fendant. He described the deceased he He testified own affairs. to his attended, personally, ; in about Texas, year known had first the defendant in York, in him Hew law. where he He saw was practicing he was weeks, fall when, engaged several 18991; Rice- instituted by the litigation testimony, taking of a share wife’s testamentary disposition over his late attempted to-. alluded heretofore statute, of his under Texas estate He made fre- defendant the wife’s executor. represented and suggested efforts with Baker compromise effect quent $250,- from sums, $500,000- should pay varying Rice had a deal of feeling 000. told him Rice great Baker settlement, to make about the was not inclined matter manner, defendant a hostile for be- regarded he next suit. When saw o-pposed defendant, in the ing York, his arrival in Hew after death hearing of his friend He and on the thereafter. client, Thursday saw him at the in conversation, the latter told apartment and, him of of the will of June 30, 1900; making and a he, Baker, estate and of which given residuary Rice, Jr., M. ex- William executors. He nephew, his made the plained residuary by the state- having legatee had that the “become stuck” him and ment deceased wonderful man in world;” that, him “the most thought no under to effec- although legal obligation, purpose tuate desires the- deceased estate distributing as that of a name, charity great philahtro- exploit *28 XIX. CRIMINAL VOL. NEW YORK had had relations As Baker knew that he never pist. of an advertise- to him his to the ruse lliee, he resort explained he mentioned, represented has been which ment, through the deceased had become He said that acquainted. they had he and, of Baker notwithstanding become suspicious an in he retained counsel had opposing litigation, pending his as ex- services. He told Baker that he would qualify share he and other executor could ecutor; that, therefore, five commission them and that Baker per cent between would be in his services for “bountifully compensated” He letter. pending showed Baker the litigation. cremation Baker was taken to there was the defendant’s residence shown of 1900' and the instrument's all will transferring Bice A property securities. moneys assign- general ment, shown, been consideration being explained have of an annual Bice dur- $10,000 payment support ing as “the old man tired of life, had tired life had business, and inwas he understanding pursuance had, which Bice was to all turn over to him property kind every and character.” Later, office, at the defendant’s he delivered over to Baker, securities,, the latter’s request, several representing hundred thousand dollars taken value, from the lie, also, apartment. turned all of the checks, over one, which Jones he testified had filled for him out on the after the day death. The defendant told Baker that they been sent to him Jones before the death. The one day cheek for $25,000 he had cashed and refused over he to pay the proceeds. First, told Baker that he the checks thought were sent “to be to Mr. Holt in all paid settlement that litiga- tion.” At another he said time, that was not true thought may sent pursuance to turn over understanding to him all of the deceased’s prop- He erty. said the deceased wished Baker and Holt to kept of an ignorance agreement the Texas suit, settling *29 V. PATKICK. been theretofore which had $250,000, through payment defendant, acting executed deceased and by by view of his him in antago- Holt. Baker’s why, Upon asking the will of he did relations, nistic professional friend of some and the witnessed by property assignments in mutual acquaintance standing some deceased, the deceased was York, peculiar; he Hew explained he that, to be and so far he desired relations secret their of Mr. him in the “no man ever saw knew, presence living he he did not know that unless it was O. F. Jones and Bice, that Baker ever saw him with him.” It is claimed counsel in- witness. His disinterested, not an impartial, only I can in terest, it, see the establishment preferring of 1896 to that defendant, conceded will produced by was to scheme, obvious one of very defeating of a divert the Bice millions into stranger the possession which he believed to be iniquitous. and a been a close friend testified to
Whittlesey having in the visitor of knew the and, Bice. He defendant frequent the sub- him Bice upon asked to see spring 1900, ad- suit. The defendant ject a settlement the Texas mitted to him that know Bice well to speak he did not enough de- to him. The witness called on Bice reported to compromise he was decided fendant very declining “what he considered a fraud.” a friend
Coleman testified to classmate having In a con- defendant. and to deceased, knowing 1900, the in Hew York, August, versation with the latter of Bice wealth about the probable defendant asked questions thought other Houston and how he and people (Texas) long cremated. him wanted to be He told that Bice live. he might office Bice’s saw defendant’s one occasion, Upon corner. his “return card” envelopes, bearing VOL. XIX. CBIMIIÍAL HEW YOBK lJO BEPOBTS, known defendant had always Potts testified 1900'. He after April, same suite offices occupied *30 to introduced there. seen the deceased never had He 1900, in the the at the office defendant, spring Jones when defend- occasion, of Rice. Upon secretary he death, before Rice’s him, $150 borrowed a few days ant a will making of mine made said him rich client has to “that - box at the in me and he showed a him, residuary legatee” will and the assignments safe of 1900 deposit company, blank and there some also, checks, securities. saw moneys He, “ ” to .as and to M. Rice payable W-. amount, signed him he defendant told Patrick, “Albert T. The Trustee.” re- estate;” owned it he owed “practically his he was esteem Rice gard perpetuate him told He, also, fact, it trust. memory; was, on Monday, that Rice “was liable to die time.” Early the witness September defendant telegraphed twenty-fourth, tire death 9.30 a. and to call before m. Hpon reaching for him various apartment, checks, defendant showed four on amounts, and, he Jones had said, sent him which, Saturday, at certified, took and had $25,000 one for request, saw He, also, the Fifth Avenue Trust morning, by Company. then Mel- another on same $135,000. check company the defendant’s drum, deceased, friend testified him after when the latter death, two calling upon days the deceased taken so remarkable spoke liking having him as to him an and the lega- have made executor residuary will, tee of and that had intended to recent deceased turn his death; over all matters to him the week following that Jones had sent checks on around money Saturday and that he too then. cor- cash them He busy as to roborates Baker occurred at interview with the what at the residence, defendant defendant’s apartment his arrival in Hew York. V. VATBICK. <k testified Sons, with Swenson a clerk Wetherbee, long to make a about proposing of Jones’ testimony corroboration 1900. witness new will deceased January, for the new Jones will, of 1896. The had been a witness will an exec- to be he was told was to some him, changes towas him; each utor the commissions and to share would as he one witness and when Bice procure “dopey,” Jones before become at times, anything placed would sign two him. that he had been He said to witness approached by from Texas. one whom he described as lawyers, being deceased, Two testi- Swenson, clerks of banker fied check presentation, Monday morning, *31 Jones’ of name $25,000', misspelled for with the handwriting the defendant as and its after payee, return, non-acceptance,. with the in name indorsed written the payee’s- body.
Swenson an had interview on with defendant Monday the in which afternoon, the of latter the regretted non-payment the check and had said he for $65,000 and, also, another an to him the of assignment securities, deceased of which he a him gave He copy. spoke death as having caused, some bananas. the witness primarily, eating Upon when expressing surprise, cremated, he said body he explained that was- a deceased “crank on the subject of cremation;” to which the witness never had that- he replied heard it.
Gerard, in lawyer, with company officer, detective Swenson’s on instance, called even- defendant, Monday ing, they in that, testified conversation he told him, with of his the will of having deceased, executor his. being and, also, of all having assignments securities and moneys. Upon Gerard’s him what asking was the use of hav- when ing he had assignment, a. will, answered that that “a n secret.” Some days later, upon his arrest, the defendant asked Gerard and with Baker, if was, whom he could not VOL. XIX. HEW CRIMINAL YORK
“fix testified to an interview Caldwell, up.” reporter, had on to him in which defendant stated Monday, had counsel; deceased as confidential relations with he was not a under that the checks will; beneficiary "been sent crema- to him create a trust fund and that the tion Rice, letter written dictation had been to him through to J ones, a few months before. another Armstrong* reporter, testified to an intervieiv following with on the defendant Thursday, that, latter stated as attorney Holt, he had been relations with Rice, secret carrying order effect a Holt, settlement the suit "by pay- ment to him of sum of and that the $250,000, checks him as Holt’s dispute sent attorney. In Jones, further corroboration of incidents story ' the defendant’s office inter-
Mayer, testified to boy, frequent views between defendant and after June, 1900, Jones Avhich were and to carefully guarded against interruptions, Avith of W. the name Rice receiving envelopes M. corner. J ones’ brother testified to from chloroform sending 190Q. Texas in of defendant’s the summer office janitor testified to the overflow building from defendant’s discovering toilet, the middle 24th, night Monday, September *32 and to defendant’s him of explanation choked having Mrs. friend of up papers. Thompson, Rice, testified him, called having Sunday evening, September 23d, at about after some eight o’clock, twenty that, waiting minutes and twice to the sending up apartment, Avith- left she out him. able to see Avatchman being T'eich, night and aaRo had apartment after building, charge elevator, seven in o’clock to Jones testified evening, returned having before Mrs. apartment Sunday evening, Thompson’s call, and to obtain inability his any response ringing bell; that Jones had not apartment out; he saw gone him when Dr. later, for; sent saiv the de- Curry he V. PATBICK. left defendant that when Curry; in with Dr. come fendant he hand and that told in his a valise, had bag, he building, Bice’s in been remembered he, Teich, him, time, will. was the it, condense I can, intelligibly, as
Such,- briefly did defendant The People. on the part evidence whose the medical Besides experts, in his own behalf. testify called by other witnesses to, referred has Bice woman whom the colored Maria Scott, him. Through defendant sought to clean the apartment, had employed cross- On her two occasions. let him in upon show that she had was elicited. of evidence a rather examination, piece significant com- defendant, that the two the death she says .after A day “ accused poison- her that she was kitchen, into the told ing did no . it in his She Mr. -Bice . . cooking.” ing doing who had been during for him. Dr. Curry, surgeon cooking testified civil in southern army, making war when Jones in March, pro- of Bice 1900, visiting acquaintance in and, prescribed At that time fessionally. August, again, occa- in laxative. several Jones, Upon for as a mercury pills mercury. he, afterwards', Bice, prescribed never sions, with slow action He him as an old and weak man, describes ex- lower extremities. His the heart and with dropsy liver, amination of him resulted spleen in finding kidneys, condition. In he examined him September lungs good heart, weak, His was sound and daily. though digestion He knew that the defendant engaged oppos- was good. corroborated counsel Bice’s suit ing against Holt, about his cautioned Jones’ statement being against mentioning defendant’s name Bice’s presence. burning had much oil mill Texas, early part September, about he observed that his and, 21st, affected Bice September *33 a became result attributed he oppressed; respiration 22d, before his death, On September day mental worry. VOL. XIX. STEW YORK CRIMIKAL called in found him the witness the afternoon and up, quite him because weak. recommended to quiet, He Jones keep worst recover; his mental would condition, though and he Rice described himself might happen. Sunday morning 60 and the witness as better. had, then, pulse feeling He a normal did not like witness temperature, breathing; but, found with the matter examining lungs, nothing them. summoned he Jones, When observed evening by the features to be and natural, calm death had hap- as though without a chloro- pened He could no.odor of detect struggle. form made. examination was his body; though closely He three- should detected had a half to thought it, only anof hour- since its quarters elapsed administration; although that the cases says where he had noticed the odor were those operations which the the chloroform breathing patient, by in and had out, saturated the room. chloro- that, He stated if form was administered in manner had described, Jones “ it would have killed four or Rice within five minutes, have taken might an hour.” half He diarrhoea thought contributed death, nerve body enfeebling force. He denied conversation with defend- any Jones, ant, about the or as operation chloroform; to the latter’s made having about fees. Mrs. friend promise Oarpenter, testified to Rice, once seen him and the defendant having to- to his gether May, 1900; once having desire to expressed be cremated; and, when she him saw before Saturday his “ death, to if struck with death.” appearing Meyers, Whowas defendant’s office,testified to to the gone having apartment deceased, at times, the defendant’s direc- tion, take, notary public, Rice’s acknowledgment that, when he sent up some such papers, purpose, 30th, on June inwill question Rice and produced by him made to and to his Short, to request companion, it. They witness complied formalities *34 V. PATRICK. execution, He said he worked of had fully. given quite which had been fur- of a some drafts will for time Rice relations defendant. He knew of no' business nished him the friend of the de- Short, of the defendant with the deceased. the occa- who had fendant, Meyers upon always accompanied sions of testified to the same his sent Rice’s rooms, being effect as had will Meyers, respect witnessing to a that it 1900, and, also, deceased should request by until after death. He Meyers, be spoken accompanied Texas, a commissioner of deeds for to take capacity documents to be recorded in that State. acknowledgments upon It was made to that the defendant knew that appear notary was sufficient and public’s were, certificate statutes Texas also, evidence to establish the Miss Potts put fact.
others, household residence, where defendant were called to the fact of the absence defendant’s establish from Rice’s apartment during early part evening Sunday.
At the conclusion of the for the case, defendant the counsel stated that it was due to “ court to defense has say no to make” and complaint that the court had exercised much to their indulgence side the case. This was true and quite court well might been more strict in the ex- limiting aminations of witnesses. The to the charge jury was, appar- so fair as to ently, provoke two unimportant one exceptions; obviated charging effect while requested; the other related to a comment on J ones’ which the testimony, court obviated sufficiently recollection leaving The jury. was, charge fact, fair in state- absolutely its ment of facts and its instructions as to the rules of law.
court submitted to the jury propositions, be established beyond reasonable doubt, following: “ I. That on the 23d day September, 1900, Charles F. J ones, with intent to kill, towel, placed wrapped the form *35 VOL. XIX. CRIMIXAL YORK HEW chloroform, upon with saturated a sponge containing
of a cone, M. Rice; face of William “ of chloro- from the effects died M. Rice II. That William no cause, from other form and the death intent to defendant, procure with III. That
“ advised, counselled, pro- aided, abetted, Rice, M. William him.” kill cured Jones' to and, my as charged,
The rendered a verdict guilty, jury a dis- reached, upon could have been no other verdict opinion, evidence. consideration and intelligent passionate with earnestness of evidence and the which The mass great and for defendant for the People eminent very counsel trial, for and result from it, have argued against extended render this somewhat have seemed to me necessary the difficulty discussion. The was attended with prosecution The had led a isolated of the situation. deceased comparatively for in the accused was a lawyer, who, life community. his such a months, manner preparing plans might divert the use of foul means. He secured a useful suspicion tool in the servant, whom he faithless' through acquired secrets of his his master and was enabled to mature plans. When whom ripe fruition, there, tool through be executed. I think that the verdict satis- might rested upon evidence the truthfulness of Jones’ and of the factory story connection of the defendant from the close inception disclosed. The conspiracy were warranted in be- jurors that death was caused chloroform lieving poisoning that certain material sworn to facts, than by witnesses, other Jones, themselves, taken led irresistibly the one inference the defendant’s the mind which had conceived criminal act and induced its commission. The inde- evidence, pendently the testimony accomplice, awith fraught implication crushing defendant in the deliberate pur- pose Rice, kill order that might possess estate. V. PATJHCK. of Rice’s pos- from the same knew large State, Coming attendant, sessions. finds him Jones, only He living He in a most retired manner. makes Jones’ acquaintance; informs himself about influence him; a sinister over gains enter into scheme Rice; affairs of induces Jones to he, Rice, a new will forging, forcing, counsel engaged but one of the only, stranger, defendant, benefit, Rice in a bitter is to litigation, opposing family letters from induces Jones to He residuary legatee. forge *36 es- him, later, deceased which will furnish the evidence, to and of his tablishment relations his having gained friendly to him of Rice’s moneys confidence. With Jones’ aid transfers are in in securities, vaults, forged, hanks and deposit safe will; before the the death and after shortly forging trust the conceivable a boundless object either, only of, showing of liti- in or of his in the reposed him, position event fortifying He in to Jones, gation. addition, assign- gets prepare general the ment to of all real upon him Rice’s estate personal life. He to the latter’s $10,000 agreement pay year during Rice, the to friend, causes to introduce his physician, Jones not to mention before him. under strict his name injunctions man’s effort is made to break the old system, An down naturally death in the healthful, by mercury, hope administering rallies ensue. This the intended victim fails; design might the a continuance of life. On and so improves promise the found them- committed, when the murder was two Sunday, of a in where the first series drafts for the situation, selves for the reconstruction of $250,000, of some promised payment had been and its presented/ payment mill property, Texas friend and counsel of personal off till Honday. Baker, put to arrive. en- soon would Delay deceased, expected and it resolved to remove of their plans the success danger one to do was, Jones plainly, in the the obstacle way. VOL. xix.—12 NEW YORK CRIMINAL VOL. XIX. He would not would ap- be no motive be
killing. suspected, as for the such parent while interest was killing; defendant’s would, fasten if he could be inevitably, suspicion upon him, traced to the deceased’s in He oxalic acid apartment. office and it for procures Jones to the afternoon; administer but the victim could not to drink Then it. persuaded bottle of chloroform was and, Jones given evening, while its contents were used Bice with asleep, success. Within hour, and, defendant when under- appears taker he directs the arrives, remains to be cremated. He orders when told that hours must embalming, twenty-four elapse before cremation would be He carries possible. off, that night, all that value securities moneys. Early fill following out, and has him morning, brings Jones, four checks, which latter had drawn his order and which purported in various deceased, signed amounts $250,000. He endeavors obtain aggregating money, drawn Swenson & early morning, upon one Sons; fails, because of the error of Jones misspelling *37 name. This causes results the banker’s of delay, learning of death his to which depositor leads investigations, result in the arrest On the after death two-. morning he be letter, from deceased produces to to purporting him of the cremation his and instructs remains, directing to for on He undertaker one arrange procures Tuesday. $25,000 Steott, of the checks to cashed. He tells Maria for no the chore with to woman, what had apparent relevancy hap- is of that she suspected poisoned the deceased. pened, having Late in the of found of his night Monday by janitor To office several within papers. building persons, destroying the next few tells irreconcilable stories days, to account use and he had to for Ms checks interest sought large He to some to of the deceased. have had professes estate secret of an the deceased intimate and relations extraordinarily V. PATRICK. an agree- Holt He to confidential nature. telegraphs copy set- before-, which months to have been made ment, purporting $250,000, tled to Holt the will Rice’s litigation by payment facts in to material be made death. Corroboration his defendant’s was not The frequent Jones’ wanting. the fact others, association with by Jones was proved cor- his to Wetkerbee Rice. comparative being stranger' roborated will, Jones’ statement about the proposed moment. Jones was deceased to get sign unguarded, The drafts a will from office-, at defendant’s preparation furnished him, was as was the intro- clerk; by proved by duction of clerk and of defendant’s Rice friend to de- dates, them as witnesses. The list furnished qualify by fendant for to in- Jones, in which envelopes by mailing sert the letters to come from Rice to purporting him, pro- duced evidence receipt the envelopes bearing “ ” return card of the deceased was The advertisement proved. ruse, resorted defendant in order into relations to come with Rice, was testified to Baker. de- assignments fendant and the checks order were seen shortly Potts before death. Jones’ brother on testified sending chloroform. That communication was- had between telephonic the residence the defendant and of Jones-, between six seven defend- o’clock, Sunday evening, was proved. That the ant did not know the deceased, or have intercourse with any Jones him, as was an testified, irresistible from inference the other evidence. the defendant no evi- Certainly adduced dence of and Dr. corroborates intimacy Curry Jones’ state- *38 that defendant’s name was to not ment be mentioned.
There was in corroboration of enough Jones when, connection with his with other evidence of story facts and we consider circumstances, defendant’s the prompt appearance the scene of the murder, his appropriation the securi- ties and in the his moneys apartment, efforts to realize upon the NEW YORK CRIMINAL VOL. XIX. and unnatural checks
forged extraordinary to his attempt cremated, have the well body promptly jury the consider might to criminal proved the a reasonable agency beyond The doubt. to establish Jones in point, the confidence of the witness. That was The as jury evidently accomplished. could infer jurors connection of the two from guilty to. circumstances referred checks, filled out themselves, defendant, in the of Jones and indorsed handwriting were some evidence of if believed conspiracy, the jury to have been conclusive signatures the evidence was forged, in its nature had the fact. What could Jones have motive to fabricate this of the crime? The believe story jury might that he abandoned his when shown that the statements, false evidence would not in a credible whole. piece together
What crime, of this necessary complete picture planned defendant and him com- procured by mitted old who slow in too solitary man, paying his final to nature to ? debt suit the of the plans' conspirators Hot presence; his is not neces- statute says in order to him. nor sary He was implicate room, in the He was from his con- building. awaiting signal federate and then too his appears; not promptly, friend Dr. In the there Curry. law, he had been eye in the person of miserable whom accomplice; tool, the, fashioned for and had induced do' purposes n killing.
In does my opinion, justice not demand that the defendant should have a. new trial; unless errors were committed upon this trial in the court, or rulings charge which affected some I jury, substantial accused. right shall discuss some which his counsel has those presented his argument. Defendant court’s action complains him to compelling alter the aof phrasing hypothetical ques- tion to Dr. medical Lee, called for expert defense, *39 PATRICK. V. The question, under conditions supposed. of death, cause a assumed death, conditions to prior existing in resuming ” co-extensive not that was exactly “ the lungs congestion subject ruled that testimony upon and the court co-extensive. been was congestion physicians testi reference Dr. Donlin’s The condition had supposed and, coroner’s referring one physicians, upon mony, “ co-extensive,” he we while did use the word find it, that, ” “ testified that congested extensively found lungs “ and, extended all over both lungs.” again, congestion Had in stand, not, the court it would permitted the question substantial, have in respect been mentioned, real, accord ivith the facts to and the testified might jury Questions if not confused, misled. of a nature hypothetical put to for their which experts state upon facts; opinion shall aid the jurors determination the issue reaching upon before them, must, be based either ad necessarily, facts or which mitted, are conflict the evidence. (Wharton’s Crim. Evid., 418; v. 83 N. Cowley People, Y., 470; at p. § v. People Harris, id., 453, 10 N. Y. 260, Crim. p. 285.) Here, only condition of the lungs death after was the coroner’s given by who had physicians, per formed the Professor and it autopsy, Witthaus, was upon such evidence the prosecution was relying. jurors were the mental weigh scale their testimony, facts; other relevant Hence, for not question the expert, stating fact as to autopsy, which there no con flict, objected to. It is properly clear, that, beyond cavil, if Dr. Donlin to be he found a believed, congestion which was lungs, complete as to the whether organ; “ was termed “ co-extensive with,” or all over both,” the lungs. Hnder the circumstances, counsel were not at to' assume liberty the, fact, their question to medical expert, that had no in support Defendant testimony. error in assigns *40 XIX. NEW YORK CRIMINAL VOL.
the exclusion of conversations between Adams and the witness the he was. whose intimate acquaintance Upon deceased, examination to have him state the was defendant, it by sought what had been deceased on the of said the subject by crema7 tion,. in trial ruled out hear- conversation. The court it as I think there was no error the say. exclusion, prejudicial had ex- the deceased defendant; for, assuming’ pressed as of how would that himself in favor cremation, being of the as material, relevant, the establishing genuineness letter latter supposed from him to which defendant; the the had with ? the death What was after the him, morning the to obtain question scheme part whether, of latter’s name the defendant had the property Eice, forged to a letter If him it were to of cremation. subject the upon true that of of the had learned prefer- defendant expressions ence Eice of dead by body, for such the disposition a. defendant’s fabri- most, at reason the suggest would, the the ensure the use of letter, cating through might I am unable destruction of evidences á homicide. bodily oral of these to the evidence perceive competency declarations deceased to a third ques- person tion letter. The the cremation prose- genuineness had the direct exami- cution not introduced the subject upon nation. was not offered defendant disprove It show him cremation but, only, forgery letter, views the deceased. admission in evidence of Jones’ was taken to the
Exception cor- because of at its attempt incompetency, either, suicide, I affect the defendant. think roborate his confession, circumstances of that it was under admitted, properly Jones’ from career, case, bearing history down to his with the defendant testimony upon first meeting of the scheme to the trial obtain the as to the elaboration intention as to their consum- joint Eice and property PATRICK. V. continu- least, to show the- tended, It a murder. mate defendant Jones into which conspiracy, ance of the prosecution claim It .entered. of destroying hope privy attempt, defendant *41 in of Jones the credibility It bore upon of his proof guilt. com- their jointly had advised the defendant testifying the knife purpose. furnished him a for and had suicide mitting was act if the conceded its admissibility Defendant’s counsel in of furtherance conspiracy. in error committed permitting that an
It argued is he-, to when to conversations interviews, Jones testify Mr. or Mr. House, counsel, defendant and their Martin, Mr. the- In first por- House’s together. place, assistant, either of the record in the brief show, tions out pointed relation of counsel had not or that the con- exist, been shown to versation was so conducted the defendant and Jones, between as not to be overheard objection Mr. that the by House; too As matter court excluded so much general. of fact, of Jones as was offered to admissions testimony prove on the defendant. part When at a subsequent stage Jones was allowed told examination, to testify having to Mr. House of his deceased, chloroformed the it having after he had been made to cross-examination, testify, to made false statements having was, the death. concerning It no error to allow the him therefore, to show prosecution that, at a date to to- prior statements the district attorney, he had told Mr. House of his administered the chloro- having form. under the provisions Code, Furthermore, relat- to ing communications privileged between and client attorney (Code Civ. secs. Proc., 835, 836), is the client’s privilege and when Jones volunteered his in the testimony case, was, to an waiver on his necessarily, equivalent express part, in open court, accorded any privilege the statute. It was aof expression reveal desire within everything his knowl- VOL. XIX. NEW YORK CRIMINAL conduct. But Jones was only- his criminal touching edge, of his he had his counsel allowed to to the fact that told testify defendant Jones and the own In the guilt. eye law, connected scheme were distinct personalities, although To commit a brime. the extension the defendant’s permit to invoke the communica- privilege prohibition statutory counsel, exclude Jones’ himself and so tions between would be counsel, statements the same him, acting stretch statute the demands of public beyond policy.
Error of one exclusion assigned Trendley, and our decision expert handwriting, case N. Y. v. is invoked Hoag Wright (174 ap 36), a decision pellant; rendered since case. In the trial case, an expert testified to the handwriting *42 genuineness of after cer signatures with comparisons making tain standards, and it to was held be cross- competent, upon test to of the value his examination, opinion by submitting spurious to him and had signatures then him if he by asking a not, upon after previous them pronounced trial, comparisons, to have been written the same hand wrote the that genuine In this signatures. case, Harmon had been as a examined witness for the He had been for a prosecution. many years with clerk Swenson & bankers of the He Sons, the deceased. knew deceased and had with handwrit his familiarity from him ing, write from his seeing checks. handling He had testified of spuriousness of the de signatures' ceased upon instruments. The disputed defendant sub mitted to him certain to be the de signatures, purporting which were ceased, visible only slits, or through openings, in made and he his envelopes, them. pronounced opinion upon One of the he had signatures, had pronounced genuine, been written, an Be inferentially, by expert handwriting. called as a shown ing was expert' witness, signature, without not but envelope, allowed testify V. PATRICK. court it. The written had or to the effect it, about the sig- seen when Harmon only it ruled that was unfair, allowed should be that Trendley an aperture, nature through it was upon knowledge aided by upon pass it, but not genuine one, and, therefore, sheet of blank paper It was, own making. obviously, of his one presumably, discretionary power court did its unfair test abuse that Harmon is It to be observed in the cross-examination. competency reason called to testify, upon the handwriting acquaintance form an from opinion long being professional reason the deceased and not by I question think the or penmanship. expert handwriting, upon from that passed the facts, distinguishable, as controlled by considered but were to be v. Wright; Hoag as of case, negligible then must be the error regarded admitted mass evidence view of the importance, expert could not been preju- The defendant subject. could not but from diced; for, the jury infer, clearly, defend- questions discussion, purpose a. mistake under- ant was that Harmon had prove made from taking testify comparisons signatures.
Further defendant discussion errors assigned by is needless. ivere That recorder some rulings erroneous conceded; none, in may my opinion, *43 sufficient of us in the gravity justify reversing judgment conviction. The evidence established the defend- conclusively ant’s therefore, to the verdict guilt led rendered, and, under the command section 542 of of the Code of Criminal Procedure, we should without give to tech- regard judgment, nical errors, or to do affect which not exceptions substan- tial right defendant.
After of the the defendant judgment, moved the court entry for an order affidavits^ trial, new that granting alleging evidence had been would which newly discovered, changed . NEW YORK CRIMINAL VOL. XIX. verdict. In addition to affidavits, there an oral ex
amination of affiants before recorder and the defendant claims facts that show that appeared would complete Jones; accorded to defendant’s had been accomplice, immunity that Doctors Donlin who Williams, testified concerning death others, had to- after the stated autopsy, autopsy, had from old no of death resulted cause age suspicious had for been been revealed; county paid their services themselves prosecution preparing medical intimate for the trial and that witnesses there connection of 1896 between the- will proponents genuine and the or defendant. These prosecution allegations, denials, met or statements, explanations, and, consideration of and the evidence, the re1- papers moving corder refused order a new In an ob trial. opinion,* served that there was no evidence a material proof of any character -having trial; discovered since the newly all the substantially matters and conditions claimed now have, been one, discovered were within the newly knowledge or all, counsel from for the defendant the inception the criminal and that the charge cross-examination of wit nesses for prosecution indicated the of knowl possession or edge, that it could have been use acquired by oppor In I tunities afforded. that he think In quite right. all of this voluminous I part which, find record, nothing if true, either entitled was- to- regarded newly-discovered if it be so> went further than evidence, or, might regarded, affect the credibility Jones, other, wit medical, nesses. As to Jones, argument based, mainly upon from alleged he, stood be immunity prosecution, already, fore the as a -self-confessed who had con murderer, jury told stories of the affair and who ivas tradictory tried being the crime. came, It how Jones make appeared eventually, *44 the confession were which disclosed testi- facts,
* ante, p. See 134. V. PATRICK. circum- and the had enough jurors at the mony trial, Fur- to his’ credibility. with which them, weigh stances before the that immunity the fact thermore, what is materiality corrobo- be when his had story have been to promised him, may defendant with other rated evidence connecting Donlin and appeared ? crime As to physicians, Williams, hav- knew of Dr. Williams one of the defendant’s counsel know it did at work for but he prosecution; ing for their be bills for. Both presented to paid physicians trial, services for, upon, preparation district attorney’s reduced in at the instance amount, I unable to office, reduced, per- am paid by People. as and, ceive the materiality fact upon application this new services trial. prosecution employ right as addition to physicians these medical testify experts, facts, them their of thef If having testify autopsy. services could it was for, compensated then, not, legally, Donlin, matter for the Dr. authorities to into. public inquire denied wth specifically, conversation Williams', Dr. which either had stated Their death old was due to age. evidence as the facts one revealed autopsy step while prosecution; their opinions what the appearance as vital indicated as organs the cause death made another Their step. in the latter was entitled to testimony, respect, such force, chose to jury it, give upon considering, with the circumstances witnesses, attending their appearance their experience and the effect cross-examination their statements.
Whether a new trial should be
defendant was
granted
a matter within the discretion of the
fair
trial
court,
exercise of which
court will,
not interfere.
should,
(Code Crim. Proc., sec.
sub.
465,
7,
466;
sec.
v.
People
Buchanan,
There hasty ex- fills some pages, record 3,000 ten weeks and the court pied a new trial. upon application clusive proceedings' that said recorder lacking be It cannot, fairly, claimed not and it is rulings the defendant indulgence So either unfair erroneous. that charge jury allowed was the latitude great application inquiry fills a volume alone, separate for a new trial that its matter, An not a inherent some is 1,100 appeal right; matter pages. it is one defendant extended to a favor state. court, Much must of the discretion be left to exercise in which is only the trial and interference this court had, becomes where there has been so clear abuse of justifiable that discretion can that did not have the defendant say we a fair trial.
In is new trial my evidence which the judgment, demanded would the result. It is cumula- change largely tive its nature and tends, contradict principally, former evidence. (See Priori, v. People supra.)
I think no other demand our I questions consideration and find no reason for satisfactory reversing con- judgment viction. J. : At the I outset this (dissenting) opinion O'Brien,
shall as I have a assume, right all assume, to be can said in support is to be found in judgment able and elaborate opinion of On Judge carefully Geay. reading considering first opinion, my impression was to record vote in my silence its against conclusion. I confess that this resolve was based upon the desire avoid the severe and sometimes useless labor that the other course involve. would But on further I reflection have concluded that there is so much to be said about this case that has not yet been said, and so many to be things revealed that are still obscure or not given that prominence that deserve, that I ought state V. PATBICK. *46 at which the my a few of views least, objections, - I risk of While run the may being charged ease are-based. to be able some additional light to throw I'hope prolixity, reasonable not be to a and to ought imputed prolixity case, in- a human life is discussion case in thorough volved. to this
The defendant, counsel, presented through has him legal court various to objections judgment against involve character. that, my opinion, questions gravest cannot and or met not to be by ought- silently ignored They or be general answered assertions, may that arguments far are from conclusive. should met and They be specious, answered, can as to be, if so fair and solid they by arguments convince fair whether of a or that any lawyer layman, mind, are untenable. they If cannot be answered the objections think whatever we way, ought prevail, may about or innocence of the defendant. guilt The of which crime- defendant was convicted is that advised another procured and, commit there- murder, fore, under the law now is a same just existing, principal he had as if committed the deed with his own hand. Form- erly the stated would indictment constitute the charge defendant before the could not fact, only accessory be tried or convicted until was first convicted. principal How be tried as real accessory while the may principal, this well Fo review principal free, case may go illustrates. case will be that does adequate give prominent place certain features that must at once attract general attention and serve the mind all guard against superficial views conclusions. hasty
The first be noticed receive ought ought to thing the most is the character of careful attention the proof delicti. corpus ' VOL. XIX. XEW YOBIÍ CRIMIXAL before
It criminal law that is fundamental principle it must one can be convicted murder or manslaughter death of the: the alleged, that the clearly subject proved crime was caused a felonious act. question primary Bice was of William M. upon this whether the death appeal is of a however motive, strong, and evidence result crime, cannot establish essential criminal fact. Death agency is homicide, of the crime in all body prosecutions threshold beyond* burden People prove *47 a doubt one human has been feloniously reasonable being killed human M. another The death William being. Bice but life was taken by that his admitted, allegation (cid:127) criminal violence is denied. The it is a strenuously fact, if that the defendant he would die fact, hoped and was prepared to seize vast estate die, his and- if he by forgery fraud should has no bearing upon others, all question overreaches whether he died a death. Let look actually violent us evidence, not search find victim, but truth. to' Mr. was a Bice old man in the feeble of his eighty-fifth year life. His health had been general for one so far pretty good advanced in life until a short time before his when death, he so ate of bananas that he imprudently became dangerously sick and was relieved violent aby purgative. This weakened him and he never recovered his Dr. strength. Curry, physician, was anxious about him and was in attendance daily him. While he he thought would recover, he declared would little him thing, off and carry worst might be expected moment. at any The death occurred on Slunday afternoon and the before day Mr. Bice was delirious much of the time. He delirious early very Sunday morning in the afternoon showed of mental signs He was wandering. last seen alive Charles F. his valet, who Jones, he left says him the bed when he sleeping went out to a restaurant. It not one saw proved him alive that.any after that. Jones V. PATRICK. ivas ivas on his Mr. Rice about minutes and return gone forty not moved a as before. He had same lying position alive, so believed he far as observed. Jones Avas muscle Jones no but he could not alive. He saw sign swear that he was life. did not know He move did not see him or breathe he he was alive what was then he dead. Believing tried did he to kill him. all With in his he murder heart, one could to did and no ever death, but he not knoAV compass ean He know whether acted man a corpse. he living saturated a ounces of it in sponge two chloroform, put cone out made of a the cone the mouth and placed over towel, nose of the before him and room. left When came body back minutes later in the same thirty cone was position it. The had left not moved. The effort of nature to body shrink from the the rebellion of pungent the lungs against odor, poisonous even the of death fumes struggle caused a movement un- sufficient disturb cone. The natural Avith its gas odor had entered strong the lungs its work done so as not to awaken the victim. quietly sleeping *48 Is to be believed? Can be believed with it safety the word of a creature such as confessed be? Jones himself to So as far Aveknoiv and so far as Jones well knows as might he the cone a face placed of marble.
In about minutes Dr. twenty there. ivas He exam- Curry ined the body with care. He his face heart put over the to hear and it beat his nose was within although six inches of the full beard of Mr. which must have been Rice, Avith saturated but a few no drug moments chloro- before, suggestion form came to him. He noticed no smell of chloroform in the room. Jones had raised the as he windows, and says, venti- lated the room before Dr. came and had Curry thus, as he claims, removed odor so penetrating completely an experienced could no physician detect trace it. also Jones claims that before Dr. came he went to the Curry and range VOL. XIX. CRIMINAL YORK XEW “ and flashed with match they and towel
burned sponge did not and they science although, says up,” says, him. under- stated circumstances' by under the could not close contact came, their during but taker the embalmer The use chloroform. no odor observed with body they no one until occurred to of death drug as agency last after confession, his fourth and Jones had made demonstrated 'were they successively recanted three others to be false. from natural causes
Dr. certified death Curry well certificate tallied him in his mental referred worry subjected Mr. had been for Eice facts, great which involved large part litigation owing anxiety of a loss estate and a fire which quarter recent resulted of million. The injecting through was embalmed 'body fluid into the arteries which powerful hydraulic pressure wide. hours after penetrated far and About forty-three who made, death official autopsy physicians the vital and searched removed opened organs body found death, cause found no odor chloroform, they fluid almost While their everywhere. suspicions embalming over turned suggested portions body poisoning' when no chemists for which disclosed poison, made analysis, them. from chloroform did not occur to of death theory no That was advanced theory one, layman, physician until a confes- time when Jones made last long afterward, sion, others; involved of three then it too falsity late tell with whether was the true reasonable certainty and further for the had been cremated theory not, body *49 was investigation impossible.
The most careful examination is lungs required order caused tell whether death has been chloroform by to The or from kind of irritating gas. poisoning poisoning, Eice examined in most not to Mr. were lungs casual, V. PATRICK. of transverse removed, couple were They careless, way. say other vital aside, although every were cast made and then cuts looking physicians careful attention. received organ expecting criminal by for evidence death agency, exami- them only perfunctory to find it lungs gave cause could to death nation. not swear They proximate needed, was and did not. Where the most minute investigation none was made. did whether embalming not know They had reached the theories upon fluid lungs, although they serious ;red, Where subject. there was certainty reqr with a man’s life in tho balance. doubt, trembling After all the I think evidence reading upon subject-, cannot be held that the safely thorough enough, autopsy that the were examined with care to warrant lungs enough conclusion If an death caused chloroform. motive had not been no would have overwhelming shown, judge sent the case to a to motive does not even jury-, yet tend estab- lish tho cause death. The law inference of requires1 death from criminal be the agency must reasonable de- only duction from the evidence. The did not meet People burden of cast proof them a reasonable beyond showing doubt that the death of Rice was caused a crime. It claimed was killed the administration of chloro- form, and no other criminal is now but that suggested, agency rests agency too frail basis permit verdict stand with safety The man society. who says committed the murder is suffered to go free, no attempt punish- even to him. The prosecute coroner’s physicians who made and were autopsy presented jury disinterested officials, were shown upon the motion for a new trial t-o have hard working by experiment and otherwise to help district make out a attorney in the case, expectation receiv- ing extravagant compensation for their efforts them- qualify
von. xix.—13 *50 XIX. VOL. CRIMINAL NEW YORK discover made to experiments Disinterested as experts. selves estab- made and useful, paid truth are experiments an atmost- tried The case was lish a are dangerous. theory a. the defendant of making with the necessity phere charged millions worth victim in his claim estate order to defeat released, murderer was millions. The self-confessed each know that did not doctors had their but the jury money, against testifying three these most witnesses important a make out inducement help defendant with- strong case him. against witnesses.
This three testimony rests judgment in sub- their no court would feel justified Without a little therefore, take the case to We mitting jury. must, im- fairly closer view them and of the motives that may them. Jones was under puted to evidently promise testifying he denied from and although immunity public prosecutor, no from that as fair man can doubt, witness upon stand, that was made. Although such promise circumstances, before the as a confessed appeared jury murderer, yet grand indictment him, found no thus body against violating can believe that plainest Ho one way their statutory duty. would omitted to indict him body except upon advice He was at set suggestion prosecutor. the public maintained large public expense hospital, in a comfortable, fashionable, if boarding subsequently where he had the theatres freedom house, city, attending case, amusement until places public the trial this reward, earned he was allowed to his having when, depart native where he now Ho State of Texas, safety. resides conclusion, mind fair can reach from these except facts author crime testified under a accomplice promise immunity. other witnesses were1 public two having officers, In to the coroner.
appointed physicians capacity *51 V. PATRICK. the un- had which they round a salary, good receiving were they autopsy I shown that already doubted right. other of the lungs in the appearance found nothing but death from chloroform, indicated of the body part fourth had time, prepared of course when Jones, set death, of they cause of facts bearing version what memories as to of their either to work use find, which 'will disclosed, by experiments autopsy them it. One of corroborate hereafter, alluded something and he tells us year experiments, making these spent and forty were wide one embrace they enough hundred All was working of birds and animals. time he specimens' bill a salaried official. He pay, although presented for seven city thousand five hundred dollars, claimed value was the his services. He was actually paid five thousand dollars, two hundred as he for working up says, the case. The other was also salary, who under physician, presented a bill not so which was These were large, paid. facts not known at the time and these witnesses were trial, presented to the jury with no public motive officials to per- vert the truth, acting course their duty maintenance of truth and in the cause justice. whole The and value point of these witnesses is that they attempted to and it is prove, said that did they that the prove, dead lungs man were found to be congested that con- awas gestion sure indication that his death was produced by chloroform. There was no absolutely other point to the testi- mony given them, show except to that there was at least some congestion lungs at the and that autopsy from their professional experience and their experiments upon birds and animals, that congestion was proof chloroform poisoning.
So-,we have a case where the three principal witnesses for the People, clearly witnesses that produced the conviction, were at the trial testifying for great prizes and great rewards. XIX. VOL. NEW YORK CRIMINAL nothing received was
The which Jones reward expected ? not man for that than his give else vdiat will life, large two with the testified physicians expectation receiving We may rewards disappointed. money *52 of that also their minds were affected by assume that pride men of and kind mental fascination with opinion that call are affected when of what the engaged pursuit they scientific There is no1 to corroborate whatever inquiries. proof Jones that most vital Avhich and fact to testified the to the that he chloroform and administered it purchased deceased at the and the command defendant. request evidence directed to other matters of corroboration is entirely corroborated, AAdiichseem to be me to collateral. He is largely to the numerous with Avhichhe and the defendant forgeries Avere claimed, and is furnish motive it the connected, which, the deceased. But informer corroboration of the killing as to does to collateral that furnish motive and as things facts, not of all he was meet the of the absence that difficulty proof advised or to chloro- the defendant administer requested by form to the In all deceased. cases of death by poisoning found, is of the that traces the be importance utmost poison by chemical to In exist deceased. analysis, body ease no trace of present irritant or otherwise poison by gas Avasfound inor other in the chemical analysis way any and the real body foundation that for the contention Bice, chloroform cause from death, aside the testimony Jones, rests alleged congestion lungs.
I intend no cast reflections to one. All I mean to upon any reasonable man say what has the every to and right say, is that a of conviction judgment capital that rests upon case such an uncertain and frail foundation and is with affected such dangerous suspicious elements' doubt should be sub- the most jected to rigid and not scrutiny permitted stand, to unless of laAv rule that could have been of every any advantage V. PATRICK. was observed the trial. accused My objection not had fair this case is that accused has judgment I am aware that 1 have no say impartial right trial. can sustained facts and the assertion be argu- unless and com- ments that must appeal, only judgment mon bar, mind, sense of the bench and but to fair every wdio whether for' lawyer proper respect has layman, administration orderly justice, enough intelligence discern force of' the facts significance argu- ment.
I able to meet all burden in hope regard assumed and I will not much with deal generalities, involved law and the specific facts stating questions, several and as are me appear questions they found in the record. do I to deal with ques- Hor propose *53 tions have not been raised While exceptions that by exceptions. dis- are not court to raise this necessary any question fairly the record in a I to confine my- closed by capital prefer case, de- to those and self questions presented plainly deliberately cided. In rules of evidence in criminal cases my opinion, at the trial to the prejudice- violated ignored trial a accused. can be of more on importance Hothing party and criminal than observance these rules, charge has refused will shown hereafter, steadily as be court, relax them. of the law7 evidence that principles govern observed, all Lord Erskihe once are, criminal trials in the “ founded the charities religion, philosophy of com- and in the experience truths nature, history And remark has Tr. mon life.” Howell’s St. that 966.) (24 authori- and modern liberally quoted by fully approved law. on that branch of ties ac- Jones, between conferences
1. numerous Among least one at informer, prosecutor, and public and complice had then at three Jones least significant. given of them is very CRIMINAL NEW YORK VOL. XIX. statements different the manner in conflicting concerning of Bice was1 if them, death not all of produced, some, under oath. statements These detail circum- purport stances of concerned and the cause parties homicide, death. were not and he was- in sub- They satisfactory told, no be it that statement would him unless accepted from stance, could In be corroborated. these conferences there doubt- was deal less that savored of said and it evident good casuistry, that words were used conceal both sides thoughts, district learned laid down one that 'and attorney principle, was that truth was could always consistent always corroborated. It would have been more correct to perhaps say - never truth, needs is some- such, corroboration. It either thing that is false fact in the of the law that eye: needs corroboration. The needs m in diffus- sun exterior aid ing heat over world. Jones light the- But under- whatever stood by the remark he set to work to sugges- with the comply tion. was He aided who all private counsel, at was the; times office persona It grata district attorney. took time between all them construct the long statement, and it not until months after the homicide it several to submit to the in the now ready form grand jury we have in the it record. The corroboration of Jones seems vexatious, as been, was, certainly question always uppermost mind the public prosecutor, *54 hence novel and methods were that many ingenious for adapted at the purpose trial. One of the methods to thus adopted was prove by Jones himself in made un- that- while had jail successful to commit suicide. attempt evidence, foundation for claim the this part and the when defendant- People accomplice, to had formed commit suicide. jail, It conspiracy was, a novel law of but it conspiracy, course, application that a 'be a sound between to thought proposition conspiracy V. PATRICK. proved homicide after the suicide commit these two to persons Rice. The People to kill conspiracy an antecedent in some way to testify ready was evidently who the accomplice;, by proved and the himself between was some talk that there to anything, opened scene was and then the defendant to regard suicide, ac- to the the People by propounded following question “ : did do yourself What complice you furtherance relate the then f’ The common witness proceeded purpose he said, consisted, details óf attempt, his unsuccessful knife. his1 The stabs cut throat attempt been care- have the knife seemed to that he made with gashes Even number about dozen. noted, he fixes the at fully attorney the district the knife was and handed by produced “ while the hlood with the Let them look at remark, jury, is on date of it.” It from was more than a this year alleged self-destruction the enactment the scene attempt a.t in the room. Where the meantime, court knife who have been had it does but it must not charge appear, evidence if without preserved any carefully jury very could, own their seen blood except senses, have it. one,
Whether no suicide attempt at was real feigned can tell informer is cer- himself. It except quite course, he re- the immediate results tain, however, and there gained since was taken the hospital liberty, I house carefully boarding nursed, subsequently have where so to mentioned, city, he had freedom the speak, and after trial his old home. departed
Of course the could corroborate himself accomplice any act, admission of his own. We statement, or device seen how the learned already district impressed upon attorney his mind the accom- importance if corroboration, plice, was, as he could himself situated corroborate feigned or unsuccessful this would attempt practi- suicide, no cally abolish the which enacts conviction statute *55 200 VOL. XIX. CRIMINAL NEW YORK uncorroborated, of the accomplice. upon possible a spectacu referred which I was throughout The scene than to the to the stage gravity lar more suitable performance a charge of a investigation court of engaged judicial If Jones had a human life result which depended. succeeded in the district had brought attorney attempt, court, his dead it to jury, into room and body presented I law, would all our notions that, shock think, only our done sense as well. And what actually yet, decency differed from that ap law principle only degree. a court in to this has often stated in this plicable question few venture however I will words, that, familiar, weighty “ evidence quote. It is well-established principle illegal which has a excite arouse preju tendency passions, dices, awaken the or influence the judg sympathies, warp ment harm jurors cannot be considered degree, less.” v. 148 Y. 12 Crim. (People 151, N. N. Y. Corey, 489, That is the 163.) rule even in civil cases v. Hutch (Hutchings Y.N. ings, 65; R., Anderson v. W. & R. R. id. Co., O. then 334) ; how much it in necessity more enforcing such a case as one at bar.
An ancient orator once stirred flood of up populace to a, rage oration over mutiny the dead body great man, whom he described as his friend and the friend. people’s He stimulated to the violence, them most deeds of desperate which ended in a revolution in a sense political changed the face of the world, resulted, according irony fate, in the death the orator who- undoing started His was real case of conflagration. suicide. the orator If could thus have antiqjuity moved men’s can who doubt minds, that the modern orator who tried this made case im- great pression the minds of since human jury, nature is the same in all ages, pointed self-inflicted gaping wounds of his witness and flourished "knife with bloody
PEOPLE V. PATRICK. his sincerity as surest inflicted, pledge which were the they of truth? devotion to the cause and the highest proof must have consider their retired to they When the verdict jury one the other reasoned themselves said something among “ like death this: witness who has courted the- thus Surely be believed.” must be truth grave telling ought is confession, It is aphorism, applies said that suicide reveals a very feature of the this only strange case, whom, and of confusion strange thought-. Confession what ? but if things Certainly defendant; all, by a victim informer, may procure sympathy as a witness. It that it would credit assumed certainly give him both in the mind otherwise, scene would not jury; enacted.
2. The whether died a from question Rice natural death or use of chloroform administered was one feloniously most has important involved the ease. already It questions been shown issue People attempted meet of the two who made the physicians autopsy, and made little they so appearance lungs that cast them to be cremated other aside while the body, vital chemist were delivered to a It organs analysis. quite obvious, of course, that this issue the defendant had the to call of death or right experts to cause prove value in such determining question congestion lungs recall able to after physicians long made the This w-assuch autopsy. important question defendant that he to have been ought not restricted hampered in the production of his evidence. On this issue the defendant called Dr. He testified was a Lee. that he phys- surgeon ician of President Mc- practice; attended twenty years’ he had and that administered chloro- last illness, Kinley defendant’s then times. The counsel form pro- thousands of him a question, hypothetical appears pounded XIX. VOL. CRIMINAL NEW YORK *57 assumed, It here. to be is too quoted which long record, the that the facts or at least case, all facts- in however, the the as- it other things Among defendant had a to assume. right of that prior sumed of a man age, the case eighty-four years suffering he had been to several months his death and for examina- the of the lower and that post-mortem limbs dropsy that congestion tion revealed a lungs—slight congestion are that other was not and "some things co-extensive, exactly with the the concluded not material then question here, “ ?” of death the cause What-, would say ivas you Doctor, words, ground sole This excluded the court the question had used words the counsel framing it, the defendant’s that, “ that revealed a the congestion examination post-mortem the co-extensive not ivas lungs'—slight congestion exactly use that word.” coroner’s physician was contended that the It ivho had not used had testified to autopsy the appearances the evi- court was such the learned any' hut expression; .this Donlin, since Dr. dently the record what just shoAvs mistaken, “ Q. n one I Then as coroner’s testified to: the physicians, co- understand you mean the say congestion it exactly.” extensive with not the ? A. co-extensive Ho, lung is the It obvious Avas very defendant prevented court opinion from ruling presenting jury an eminent cause on a vital expert was, question, n death as evidenced of the lungs. condition congested al- Avitnessis hypothetical question expert proper, evidence, include of the facts in though it may only portion and it may assume state there is evi- any of facts which some dence to sustain and the expert taken opinion may .he so An in the does facts assumed. error assumption not make if it is within interrogatory objectionable or possible evidence. A counsel may probable range n even assume the facts accordance AA'it-h them. his theory
PEOPLE V. PATBICIÍ.
as they
facts
state
exist
It is
essential that
(Cole
the witnesses
the opposing party.
were described by
id.
v.
3. Jones It cannot be too from aside repeated often that the two most the two the important People witnesses ¡Neither in who their made the physicians coroner’s autopsy. nor in or death, official certificate as to the of their cause report of numerous before magistrates the proceedings police did they that fact, involved as inquiry otherwise, had chloro- that discovered pretend they any proof poison form after the cause death until as several months had his final to the effect Jones when completed story autopsy, had that himself the deceased chloroform. killed educate then themselves physicians began by experiments witnesses. When to sustain this as theory otherwise that only theory experts, stand they supported had indications of chloroform claimed discovered they that at the condition congested autopsy poisoning first de- It importance lungs. was, therefore, these witnesses he could or contradict two if fendant to impeach the close at' or after just by showing autopsy VOL. XIX. NEW YORK CRIMINAL REPORTS, had stated result examination their publicly with or contradictory inconsistent their statements witnesses on stand. the defendant’s counsel just
This was what attempted court. do, but was prevented After ruling close of ease the defendant’s counsel called a People’s witness who had been an attendant at and was the morgue heard what was said. We know present at autopsy from an affidavit of in the record and which is witness, used motion for new trial on ground what defendant’s counsel newly-discovered evidence, just him. It was sought this-, just after the prove by Dr. it, who autopsy Donlin, stated several participated persons in the some room, whom present were newspaper that Eice died of old reporters, the other age, physi- cian who was it. and heard the statement assented to present This it is testimony, would far to perceived, impeach go discredit two most greatly witnesses for the important in the case. People There are authorities that hold in effect that inasmuch as the into case the written People put *59 report of the an official the statements at autopsy, act, time of the public who made officers were admissible it, part the res and as evidence-. The gestae statement original to be sought proved the witness did not but contradict, tended to sustain the certificate. But whatever the law may that, be on the evidence offered to point, was admissible clearly impeach witnesses, and People’s foundation for proper that was laid in purpose the cross-examination of Dr. D'onlin. “ have, He that testified after the there autopsy might I recall reporters. number do not it. I have stated might to them I what the result the- was. am in the habit autopsy it.” The defendant’s counsel then doing propounded to “And the witness: did not following question that he you say ” died from old ? The that he age witness, after not stating did PATRICK. V. it, finally have said not he could that statement, recall such any “ that.” I did not answered, say that pointed to witness put we have Now, question are occasion, and and the we him the time out to place whom out told did not the. that gravely point it fcrson in a it made that statement although appears made, and was addressed room a crowd, including reporters, a person I had one in that always supposed particular. and speech audience in who makes public statements made might that he afterwards, who denies them, as witness, heard the who was present contradicted any one material. when became statements that he was present The defendant’s after testifying witness, the many two detailed physicians, autopsy assisting that he that'he did in the and after things stating operation, heard Dr. Donlin the result of make a statement “ Did Dr. Donlin was asked autopsy, following question: ‘ time in that old man’s statement made there say had come all can make died old you from age it,’ or words to that effect?” The court sustained Dr. People’s objection the ground question, Domlin’s attention was cross-examination not called to the time or or to the place statement, alleged person to whom it was made. It was held that unless virtually defendant’s counsel could Dr. Don- find the man whom lin’s eye rested when he made statement question improper. The modified defendant’s counsel then the question and asked Dr. Donlin whether at the on the occa- did, morgue, “ sion of your presence say autopsy, hearing *60 ‘the old man died of old The words effect?” to that age,’ court ruled out the counsel promptly question, defendant’s and, still court allowed or requested to persisting, permitted to recall Donlin he Dr. the end that him might to propound a question could the views comply court with XIX. VOL. YORK CRIMINAL NEW im- for sufficient as a basis question
reference the form of n be re- witness to allow the refused court peachment. re- who had salaried officer called, public was although case for up the working ceived fees for large assisting People. im- benefit the defendant of the of very
Thus deprived have not even portant a series testimony by ruling judg- doubtful merit styled technical, since, my being all They are they wrong. are ment, absolutely radically name man based the notion that was necessary it whom the made, statement when was a statement public made to no swore one and when the doctor particular not did make it at all. these were made rulings If police court on a am trial for I sure that any not sheep stealing court appellate they would ever but them, think of sustaining were made on a trial result murder, of which defendant’s to live depends. right * 4. The of a number of too genuineness documents, great numerous to became an the" mention, at important question trial. all claimed They to be People forgeries spurious. no if They prove tended doubt that spurious defendant and the been had in the accomplice engaged prepara- tion of spurious documents with the view of getting possession . estate of In the deceased. and of themselves it was claimed that furnished motive for the commission the crime of murder; and murder are different forgery two offenses and the accused have been might of the former guilty without The most being guilty latter. of these important alleged spurious documents instrument purported to be the will of deceased. It last denied probate in the civil courts and was the subject a mass of the trial this case. The proof to handwriting proceeded from a only number of but from experts, other witnesses *61 V. PATRICK. of Rice who claimed to he familiar with handwriting genuine signature. the witnesses and who Among gave testimony upon called this issue man who testified that Cohn, was a named young he 30' in was about that he had years formerly age; in Texas clerk of the deceased a few employ years and was at the time of trial in the Rice Insti- employ month, $100 founded at a tute, deceased, per salary in also Baker and the other execu- employ Captain tors Rice estate an additional month. $50 at salary per All the mentioned were in interested civil persons litigation the last will de- destroy of the paper purporting since would result that the will ceased, adjudication that date before de- sometime bearing will genuine ceased and which contained their favor. This provisions witness testified that the documents in various were question It forgeries. cross-examination he was appeared upon that brother-in-law of one trustees of the institute that he ; had discussed of the two subject-matter one dated wills, 1896, and the other in 1900; that that his present employers, and his is, Captain Baker were both brother-in-law, engaged will, that before came contesting the he to Hew York disputed heard had Baker had testify testified that Captain in his opinion not signatures question genuine. wer§ He also stated he had examined these a whole signatures before he ventured an morning opinion the district attorney; Baker he had heard before he had Captain testify passed the time was at signatures; stopping interested in hotel who were the first will where the people before He admitted that he made first were also guests. he had read in the examination of the disputed signatures experts that some so-called it as handwriting given papers genuine their signatures that these opinion signatures this entirely legitimate. All deceased. *62 208 MW YOEK OEIMINAL VOL. XIX. BEPOBTS, In other the cross-examination this! words, witness disclosed that fact all the he had been influences time surrounded by hostile to would the defendant and that warp likely and stimulate judgment interests. These things private affected the value of his as a witness. The de- greatly opinion had fendant to have these facts submitted to the right jury. The learned district attorney, the testimony that perceiving this witness had been weakened the cross-examina- greatly tion, took' him in hand him and toned again up thoroughly fashion: following witness, By while showing being educated or persuaded whom had con- parties with ferred, toas he had opinion had heard from other expressed, parties who were disinterested the same entirely precisely This was thing. accomplished by two comprehensive questions that deserve to be stated the words of the record. The first “ question was: you also know 25' tellers Did that about paying in no connected way with the case had their expressed opinion that all these instruments were ?” answered that forgeries He had. Hot quite satisfied with this he propounded question, “ another to the witness, which is as Did follows: also you know that human knew Mr. every knew who being, you Rice’s handwriting were expressed opinion ?” The forgeries answered affirm- witness question and the ative, court after that the questions ruled, argument, and answers will proper. It be seen from has thus what been stated that the learned district in a adroit very attorney way before the got jury opinion about tellers paying in no connected with way and also the case, opinion human every that the witness knew who knowl- being had any edge court, the deceased. The learned handwriting after argument, pronounced testimony competent jury.
That and these answers were questions and grossly improper no one can doubt. incompetent The errors that I plainly PATBICK. V. material radical, to are not only far called attention thus signifi- deeper broader have a much hut they prejudicial, re- trial, whole over the dark shadow cast' a since they cance, serve They conducted. which it was vealing spirit true defendant, surrounded atmosphere color give fair impartial that a with unerring certainty show *63 have could not these rulings trial was since scarcely possible, if had been been made the given trial effect any rule that kindred innocence, of or that other and presumption de- be all is doubt should where there- a reasonable questions cided, of defendant. not favor the People,
5. enormous fills the Expert testimony large place record in case. have that that kind of testimony We seen costs these times In money. production marshalling the of such over have an enormous People advantage the accused. The not or re- public prosecutor hampered stricted of with all considerations any economy. State, its is behind is able re- and he to power, him, extravagant pay wards to experts may, by opinions speculations, to able sustain the as witnesses on the Hot stand. so charge, with the accused. He is if means always, without generally, this class purchase in this must be true testimony. That since case, the learned counsel who case have at our argued the find bar motive primary for the defendant to engage series of crimes that have been imputed him, the purpose desire In escaping pinches of the face such poverty. conditions, if the defendant was able to induce a few eminent men to become witnesses behalf and to spend portion their time in the room, court not to ham- ought have pered or restricted narrow rules in their placing opinions before had no motive jury. They, least, ¡Neither truth. nor pervert public prosecutor by objections, court should excluded that such by rulings, anything VOL. xix.—14 VOL. XIX. NEW YORK CRIMINAL REPORTS, on the could vital
witnesses any hearing testify involved. Without experts question issue referring ex- within medical scope question handwriting, only to the common was a and it would seem perts very narrow, mind a one. very simple throw
The sole which medical could experts question upon as to the any light question congested significance state of the the deceased as death lungs proof produced chloroform. If that was as question plain be, counsel for the we might learned assume People ask it was why that it cost officials who made the two salaried time and one autopsy year’s hundred forty experi- ments, besides much in order to find reflection, out study reasonable, whether that condition of the with cer- lungs proved tainty died from Bice chloroform. Of application course, these could have to do experiments nothing *64 of fact question whether so, were and if lungs congested, to what extent. The two took the People’s principal experts lungs from and it was body, their know whether duty were or they if so, what extent. and, congested, either They knew condition of what the as mat- was, lungs ter of fact, did not. In their event, subsequent and study experiments could throw no on light the question to what was the real condition of lungs they appeared and the autopsy, occasion for the only of medical ex- use in perts this case was to show that the condition in which the were found at lungs was, under the autopsy circumstances of the case, certain that death reasonably resulted from proof so that the chloroform; condition as described lungs, the officials who made the autopsy, certain either reasonably from Bice died the effects proof of chloroform or that it and doubtful presented question; disputed the de- clearly fendant had the to offer right any proof contradicted the V. PATRICK. could or that of the People’s experts in that regard, opinion the question. throw any light upon tes- Dr. who Mullican, defendant called
For this purpose York Medical editor the Hew he was tified that the associate and a from the Eoyal College Surgeons Journal graduate of Edinburgh; and the College Physicians England Royal that he had been a various England surgeon hospitals chloroform; that he had death from made considerable study that in had studied three course of his studies he general hundred ten various medical found reports autopsies He was then Britain, Great France journals Italy. asked to state in how of the had studied many autopsies was there found a This congestion question lungs. excluded. He was then asked in how of the three hun- many dred and ten cases that he had studied was there re^ reported active This ported also congestion lungs. question excluded. then He to state that he had searched proceeded nineteen of the through text books principal therapeutics, but that was also excluded. The defendant’s counsel then him propounded to the following hypothetical question, “ which was How, excluded: that a cone or a Doctor, assuming towel wrapped is around the cone-shaped by the towel -wrapping hand and then a small end of the cone sponge placed and, saturated with two ounces of thus sat- chloroform, the cone urated is over the face of the placed state patient; sleeping *65 whether in the I your that have described opinion operation could be without the ?” If it was accomplished waking patient to the proper permit an as People’s to experts express opinion to the cause death from the and from appearance lungs their experiments birds and I upon animals, am unable utterly to see this witness could not be why to permitted a like express from the wide studies that had made opinion the same upon If in he could question. say reported ivhere autopsies from chloroform, death resulted there was no congestion VOX,. CRIMINAL XIX. KEW YORK half in that would far to them, certainly in go lungs that the condition of the weaken the People’s theory congested certain autopsy reasonably of Eice disclosed lungs that he died from the effects chloroform. Knowledge proof devoted medical books study from wide journals derived a narrow must throw on such science medicine light it as this is is difficult case If that not so, question presented. Medical what value there is all such perceive opinions. same as knowledge way much acquired very legal from knowledge, books. It often becomes is, study necessary of some what law other litigations prove State or is with country to some respect particular question, and that is as a of fact generally proved question calling witnesses who have in the and have lawyers courts practiced read It seems to me that if the upon subject. quite plain had testified lawyer that he had read and studied one hun- say dred reported cases on admis- fact would be question, aas basis sible opinion to what law was What disputed point. distinction there is in this be- respect tween a and a lawyer each physician, attempting testify derived from knowledge I am not professional studies, able perceive. ruling as to excluding of the cone question effect patient if not er- sleeping more equally, plainly,
roneous. The claimed that People evi- supported by dence the that the proposition described would not operation death only produce actu- twinkling eye, did ally the death of produce Eice. That would be theory shaken much if it very could be shown that the in- operation, stead of producing death, instantaneous would awaken the and that was sleeper, precisely what defendant attempted by the prove question was excluded. If Eice was alive at the time that Jones the1 placed cone face, then death must have been produced literally of an twinkling eye. *66 ais PATIiICK. V. ac- testimony all depends upon that story truth of The not so in that regard evidence certainly complice exclusion to warrant or even conclusive, probable, to. referred testimony proof failed to get defendant’s counsel having testified Dr. who Girdner, offered called before jury experience of twenty-four years’
he was physician surgeon He York. of Eew and a graduate University City had deal stated that he had written on chloroform great its effects as to made a with chloroform number experiments upon the human that he had made upon system; experiments transfer of chloroform to the use patients attempted by them from the natural into a chloroform sleep sleep; performed sleeping these thirty-two- experiments He was then in his patients. asked to state whether opinion the odor of chloroform in a room three-quar- could be detected ters of an hour after it This had been administered. question was excluded. It is of this from the perfectly testimony plain witness that he was dis- facts this case as speaking closed of Jones and that physicians He autopsy. was then asked to state about what are the chances of death from inhalation of chloroform and about how death will frequently follow the administration of that drug a patient. These questions excluded. He was then asked to state for how in his time, long after an opinion, operation had been performed in a room patient the odor of chloro- form would remain therein. This question was also excluded. In view of the conceded fact in the case that no odor of chloro- form was found in the room the attending physician of the deceased, who arrived twenty minutes after the cone had been removed, and in view the further fact that the claim the was that People the condition of the lungs proved with reason- able certainty that the death of Rice was produced by the opera- J tion which ones described and that was the real and sole cause *67 NEW YORK CRIMINAL VOL. XIX. it is death, to see very difficult what or reasonable legal
ground there refusing witness to permit answer these It to me' that questions. seems were in questions form and proper if pertinent issue; but even were not and to have ought been framed in some different way humane rules the criminal law would dictate public and the prosecutor court the what duty respect suggesting were It seems questions me, defective. therefore, that of the court ruling evidence referred to was excluding erroneous clearly and prejudicial.
6. Another method of Jones and the. corroborating sustaining in the charge indictment was to adopted by People give proof of defendant alleged confessions admissions of the claimed him Much of this made while jail. came . from ar- who had also been accomplice, rested and confined same with the defendant on the charge. admissions or .Many damaging were embraced these things if (confessions, which, made at were under seal all, clearly I professional which, think, as violated confidence, in the utterly manner which must now be related. called examined him named Potts and
The-People lawyer these great admissions. His length touching testimony occupies hundred of the record. testified one He that about pages and that he and the defendant a common lawyer occupied of rooms names office suite and the of the two. were on the door. testified that at the time when he was on the very He stand himself as relations with having he regarded professional which had never been these rela- severed; the defendant after death Rice, immediately tions commenced There how- certainty. can, fix date precise could not relations created and existed. doubt such be no ever, hand and him examined on that the witness took court retainer the 28th of early the date of the fixed subject Rice, after the death of is, four days although September, PATBJtCK. V. existed between intimacy that, considering it is obvious *68 existed relations confidence accused, and the witness accused in knew the he first that He stated time before. long to Hew accused came since the 1870; as that Texas early at one time two lived as the close, relations were York their who men other There were at least two young same house. the suite or rooms notaries occupied stenographers men of these defendant’s wras. Two young which the office the defend- in favor of arrested after had testimony they given evident is quite ant some examination. It upon preliminary that Potts had had taken place been terrorized what necessary feared he the same fate. It is only share might read this witness one hundred testimony pages in order used to that were gave the various devices perceive from the the most witness and confessions of drag admissions character which defendant had dangerous it was claimed the him. made to These mention. instances are too numerous to The after court, ruled that witness, testimony examining was not admissible, but afterwards this ruling changed decided that the statements were it affirma- admissible unless tively appeared that the admissions were made after the re- tainer. The district then attorney proceeded prove witness statements and admissions that said the defendant made to him of the utmost As to of these importance. many statements the witness stated could not tell that he whether they were made himto before or after the retainer, but were all they admitted upon stated which principle burden put the defendant to prove been made after the re- tainer and not before. After the had heard jury the confes- sions, such proof by defendant when time for his de- fense arrived, be weeks after may the objectionable testimony had done its work with the would jury, obviously utterly worthless. Moreover, the nature the testimony given indi- clearly cated very admissions were made under the seal NEW YORK CRIMINAL VOL. XIX. of professional confidence. This was all received testimony under a of law theory unsound. The true manifestly rule that when relations been once professional shown, there is doubt whether the admissions were made or after the 'before commencement of relations, these when the witness cannot fix the as in date, this must be case, excluded. case not afford the least would principle adopted client con protection to the the violation of against professional his own All fidence counsel. necessary, that would be in this would the counsel to for theory adopted case, be for while get and thus retainer, date misrepresent pre *69 as Potts in did, observe tending, way perfunctory pro fessional the and rule could be vio substance the duty, spirit lated with With now under impunity. respect consideration, it is obvious that witness was com the perfectly or volunteered after the date to state admissions him pelled I retainer, the whole examination as discloses, think, total of the rules of law that the relation of at disregard govern and client. In a in torney case, well-considered which this question was discussed and it held decided, was where witness unable was state whether the distinctly admissions him were made or counsel before that relation commenced, the evidence must be The excluded. court added that whatever in be the rule civil in may actions of this regard, testimony character not to ought be admitted in criminal prosecutions. v. (People Atkinson, Cal. same was 284.) The principle held in the case Bacon Y. v. Frisbie N. where (80 394), is held that any statements admissions which be may sup to have drawn posed out relations consequence each other entitled to parties are protection privileged communications.
But there another that occurred at the incident trial that was was referred even than the to. defendant and worse one in the room in the were both confined same jail. accomplice V. PATRICK. This them. to act both the same counsel They employed visited who was also assistant, lawyer, counsel and his room jail. clients at their had conferences with both At were clients one of both pres these conferences counsel stand ent. Ho else When the accomplice one was. and what told what took at the conference, the jury place in which said each and all of but after by them, argument, court and counsel the court concluded that the testimony joined, had heard admissible and struck it out after jury it. But the learned district was not" to be foiled by attorney such since Jones he at once was enabled to ruling, by prove that some of the most admissions were made to him damaging the accused when room the corner they both and when counsel was from in another some distance them said a low tone part room, talked such they could not heard there they Of course lawyer. was no to corroborate either as to the admissions attempt in the particular room where were made. This spot testi mony new gave aspect question judgment court and the district examination attorney, proceeded on the notion that all that was said the defendant could be *70 Jones proved could swear the did not providing that lawyer hear it. then Jones to the most dam permitted testify kind of statements which he claimed the defendant had aging made to him while in corner of the room the occupied by three in the persons conference, and that after engaged making admissions the these three It is came import together again. ant to observe that these made statements, claimed have been in the corner, not stricken out at all. what occurred That at this interview and all that occurred there was and privileged could not be disclosed Jones of the de against protest fendant it seems to me no one can doubt. The did privilege such shallow that it was not heard depend upon pretense The rests of nature the con lawyer. privilege
218 CRIMINAL VOL. XIX. NEW YORK and and the feren.ce, subject-matter occasion purpose and of the failed to hear what interview, whether any parties Indeed, the others said was not matter of any consequence. clients the corner were con the two while Jones, according as to to made to some answers be questions sulting after some their had and them, counsel conversation put aside, all rer who had turned they presence lawyer, to contend sumed the It seems to be absurd conference. me where two counsel or attorney clients have common his, and consulta are advice office together purpose tion between them two is said between the all, something clients room, while the has into the next lawyer stepped one of the clients could disclose made without the statement thus consent In would not other. such case the privilege ain apply clients, between two subsequent litigation does where the one of apply is between subsequent litigation N. Y. 424; them v. (Hurlburt stranger. Hurlburt, v. Root id. Wright, 72.)
But if even had "court out stricken everything taken at this conference place to which Potts everything the error testified, would not and could not have been cured under the recent decisions of this court. The heard the jury and under the circumstances this case can- not be to know what presumed became it, since nothing said it in about retired to charge. consider their jury verdict two months after the perfunctory court ruling out some and striking the record the worst leaving part the testimony. The jury may not understood at the end and in the argument heat of the trial what just signifi- cance the had, and it ruling judge cannot presumed understood or they either remembered what became *71 evidence. v. Ellis
The case Ives Y. (169 N. is the 85) latest au In on this that case a thority question. letter was offered V. PATRICK. made statements contained hearsay evidence it was which, said, of any that it was to me It never seemed third party. that, It other. or the appeared on one way the trial importance in the to this letter trial regard judge charged jury “ to dis- I to caution you words: desire particularly following of the letter deliberations the contents regard entirely your n written Hr. in- the latter’s to Hr. Ives in response Ellis of prov- That for the letter was quiry. solely purpose admitted before you any its Hr. Ives not to ing receipt by bring , that cau- the matters therein Notwithstanding contained.” this the sole tion, court reversed the ground judgment court we the error had not been cured. In the opinion “ will find court "words: But appellate before following hold it must feel sure that such an error has been cured, the effort of was necessarily the trial court to correct the error effective said cannot be minds of the Now, jury. of the caution of the this for it must be borne instance, court in in mind letter was introduced in the early part trial, which was not there in its one, but only progress long was an which the adjournment of ten days, period during jurors had their minds with affairs of presumably occupied their own.” Judge who wrote a opinion, concurring Lakdok, was quite as clear and and his words specific, ought to quoted: “The letter being hearsay incompetent upon real but question, from its terms one which the very being jury would regard pertinent it, would treat the naturally judge’s to exclude its attempt contents from their consideration as a perfunctory instruction, of some tech- given pursuance nical rule, unless the instructions to it should be so disregard clear and as not explicit amount to a only command to a fair to their natural . counterpoise convictions. . . Not- vdiat the trial withstanding said, judge would find it jury hard to counter to their go own convictions.” *72 HEW YORK CRIMINAL VOL. XIX. cannot
The contrast between the two cases fail to strike mind. In civil referred to the to con- jury the the case retired with and words the sider their verdict the clear strong judge the letter in them their ringing ears, commanding disregard the and the that case was reversed sole yet upon judgment In that the error had not cured. the case capital ground retired bar consider their verdict two months jury after perfunctory ruling judge, purported In strike midst out portion objectionable and in trial, the confusion of a and not a word of caution was to them in to this objection- with most given charge respect evidence, able it is now contended that the ad- yet errors evidence been cured. Is there about mitting anything this case that us to law and such strain ar- requires put ? If what ? so, is it It I gument is, think, quite unnecessary to extend the discussion It such question. plain may added, that the trial this however, commenced case January 22 and ended on 7, 1902. April
7. People produced evidence what put purported to be letter typewritten Bice addressed signed by defendant, to the that after his death his was that effect desire should body be cremated. In this favor- referred paper to Col. ably and Ool. whose had also Ingersoll bodies Waring, been cremated. The claimed public prosecutor gave proof to show that the tending deceased to this signature paper was a It was not claimed that the forgery. was in signature of the defendant. The handwriting purpose introducing this was to show that was paper concocted defendant excuse, as an cremation authority prompt body order deceased in not be alleged poisoning might discovered. Whether signature deceased became an paper genuine forged important question the case. deceased had said in Anything conformity that letter was sentiments admissible expressed *73 V. PATRICK. and the defense its genuineness, bearing upon probability of the of the was not limited to the narrow genuineness question that the to show mere but should have been permitted signature, those sentiments contained the letter were expressed to have have deceased those which would been likely written.
The defendant’s testified that counsel called a witness who was a Com- of the Manhattan lawyer ¡Railway employ for ten that with the deceased pany he was years; acquainted for over that the was an thirty deceased old friend years; father; witness’ in Texas when they were together and that boys, and the witness’ father were deceased associated in business; he was with intimately acquainted the deceased and had visited his on an house average during the last few that he not ac- weeks; once two years every quainted defendant’s counsel who were named; that he had drawn a few before a codicil to the will years that he had deceased; him conversation with in the summer of 1900, but could not fix the date. The witness particular “ was then asked the Mr. question: in that following Adams, conversation that had with Mr. you say you "Ricein the summer did he tell 1900, that he had made you arrangements his ?” The cremating body court refused to the witness permit to answer the If the question. entertained, deceased actually to the time up of his death, sentiments in dis- regard position after death body that were in the let- expressed ter, it seems to me that the question We must competent. assume that the answer of the witness would be most favorable to the defendant, there question whether, being dispute regard genuineness the de- signature, fendant did to show right paper expressed the sentiments of deceased on the question cremation entertained him in his lifetime. This evidence, course, would not be and it be that it was not conclusive, may evidence XIX. VOL. YORK CRIMINAL NEW proba had some'bearing character, but
of the highest person reasonable to suppose It is of the case. bilities cre have his body desire lifetime who all his expressed formal before way in some that desire mated, would express Let us out. be carried his wishes end that might death, to is at of a person, the case of the will deceased suppose it, that he never signed tacked after his death on the ground *74 is There is a that his attached thereto forgery. but signature to the regard of testator no about intention question will, in the of his disposition property expressed sole is is or forged. whether genuine question signature case would in such a Mow, it seems to that the contestants me, down occasions on various that the testator permitted prove intended not the time of his death had declared that he to me that make a will and It seems would never one. make such would on the throw testimony disputed question light whether the In Chase’s was signature genuine spurious. Evidence, is it the Law Stephen’s Digest (at page 99) stated that the declarations of the testator are admissible evidence when his will has is a lost, and when ques there tion as to what is its and when the contents, question whether will is or was obtained, existing genuine improperly and when whether and which more ex question than will, documents one constituted his and in all these isting cases it is said that it is immaterial whether the declarations were made before or after the or loss of the will. These making it seems to well propositions, me, are sustained au by judicial thority. (Matter 119 Y. Hesdra, N. Will 615; Taylor Case, Abb. Pr. 300.) [N. S.]
If this rule evidence is to a applicable will, where gen- uineness of the is in I am signature dispute, unable to perceive it is not why to an equally applicable informal paper pur- directions ports makes give of one’s regarding, disposition remains after death. it So, seems tó me, the defendant V. PATRICK. jury submitted had the this right doubtful the if the worth, question what was even and not the the defendant in favor of should have been ruling People. in his be-
8. man as a witness The defendant called a young 30th June day half named testified that on the Short, who man named he, the death of Eice with another preceding young The testi- Eice his apartments. Meyers, present that he disclosed the fact with Meyers witness mony had been of the deceased and frequently apartments there executed said that he Eice papers signed pres- ence on various occasions. He identified two papers par- ticular which to have been the 30th executed purported day of June the death Eice. these One preceding papers will and disputed the witness testified that he Meyers ivith the deceased Avere in a room the present apartment Eice there in their these instruments presence signed *75 both them requested to witnesses, become subscribing their names as signed such. There does not seem to have been any about the dispute fact that the of these two signatures men to the young disputed were their handwrit- papers genuine nor was much ing, there the fact that of them about both dispute had been present various occasions in the of Eice apartments and there in the execution of participated papers Avitnesses or as officers. The AvitnessAvas to acknowledging subjected long cross-examination, the course Avhieh various rulings ivere made I Avill court, and refer to one them. only In the course of this examination the district said to attorney “ the Avitness: You have been under arrest in this case for per- haven’t jury, This you?” question objected being the court ruled that the district shoAVthe attorney interest of might Avitnessin the case, since that had a on his bearing credibility. I am unable find in record answer any specific to the but it is evident that fact of quite the arrest question, XIX. VOL. NEW CBIMINAL YOBK BEPOBTS, what the court and from form of assumed from the the question show any the arrest could said in to the How objection. reply is to per trial it difficult in the case on interest of the witness that such a question ceive. It has been held this court for reversal. (People and ground incompetent improper, id. v. 571; 288.) v. Y. People Crapo, 72 N. Brown, to a statement virtually form of amounted the question court, with'the approval the district attorney, jury by redi theOn had for the witness been arrested perjury. defendant’s counsel rect examination the witness stated be examination testimony preliminary giving com fore arrested the hearing before Judge Jebome been called he had He was then asked how soon after pleted. made. as a for on that was the arrest witness the People hearing asked He was then The answer to this was excluded. question had in that hearing how soon after he finished his testimony dis he was arrested. the court had How, permitted since had trict witness under show that attorney, objection, for to show arrested it was the defendant competent It time and of the arrest. was competent circumstances if made without show, shown, it could that the arrest was cause and in the very destroy bad faith for purpose him as a to the will and a witness ing witness had to defendant and that process begin generally, some arrested un It that he was not seems point. til after he which was supposed given adverse to the interested in will parties that were destroying *76 and adverse on the examination. People preliminary affect his credibility When the had been made to attempt an and arrest, time, circumstances merely place showing tend to for which it was would arrest explain purpose that the witness was a friend and associate made. It appeared in a part referred to Potts, previous opin witness Potts taken from warning enough evident ion, and it PATRICK. V. prose- and made peace and the fate Short Meyers to ex- this witness to permit The refusal of the court cution. arrest attending all the circumstances where and when, plain over- alone, stood if it error, might While this error. de- to confine of the court looked, tendency shows only district limits, while within narrowest fendant’s proof great witness about attorney question permitted case. no on the that had variety bearing of things possible made at The material for further discussion rulings There are nu the trial has not means. been exhausted by any merous other raised to be found buried by exceptions questions in this record of twelve thousand folios that are as serious quite and harmful as those that out, pointed pursue the discussion would too already be simply extending opinion have been differ from long. questions that discussed may each other in as one star differs from importance another, but the trail of error is all. If over has them what been said can not affect the in this it is judgment case useless to go piling Pelion Ossa. It is admitted on all sides that this record presents and the legal errors, answer made is only are not serious to affect enough judgment they may be overlooked under the of section 542 provisions Code; but these errors cannot find shelter under this statute, since this has court spoken with no question uncertain sound. Here are the words of the court discussing scope ap of that plication statute v. 148 N. Y. (People Corey, 494, 12 N. Y. Crim. Rep. 151, : 167) “ This statute in no way impairs affects the previously well-established principle that the rejection of competent material evidence, or the reception incompetent improper evidence, which is harmful to a defendant and to, excepted pre- sents an error reversal. Such a requiring affects a ruling sub- stantial of a right defendant even though appellate court
VOL. xix.—15 *77 226 XIX. VOL. NEW YORK CRIMINAL the im evidence before or with it, would, with rejected same conclusion still come excluded, evidence proper has the insist that reached The defendant right by jury. him shall be received and material and evidence by offered legal have evi submitted to the and to improper jury, illegal which and to have the dence, harmful, excluded, be opin may ion of the admitted in the case taken evidence jury upon proper 126 Y. such evidence v. N. Wood, only. (People 249; v. 296; 108 id. N. Y. Crim. People Greenwall, 302.) As was said A trial the latter case: J., ‘ person Earl, for his life is all which laws the advantages give entitled him, is them the to have case submitted among right ” to an evidence.’ This rule impartial jury upon competent as to the of section and unani application repeated this mously v. Y. approved by court Strait N. People (154 165 12 Y. ; N. Crim. and still later in the case 479), People v. N. Y. Montgomery (176 Y. 219; 17 N. Crim. 503.)
I have not been moved assertion, given much emphasis upon defendant is this argument, All we guilty. know or can know in a sense judicial legal is that the jury found add him and this court can guilty, nothing legal force effect that verdict by expressing any opinion about it. The is question whether the verdict is affected legal error, if it is, is our solemn duty set it aside. The of this court duty in such a “ case to hew the line, let the fall chips where Lord Mansfield they may.” said on a memorable occasion that wherever he had the honor to sit as neither judge, favor nor royal popular would applause protect guilty. the same line of Pursuing I thought, may be permitted to as a say that, member of this court, neither popular as to opinion if case, such there nor be, any amount of specious or will sophistical induce me argument to assent to a conviction in any capital case, however guilty accused may unless thought be, he has had a fair and impartial trial *78 V. PATRICK. land. Such a does not consist the law of the trial according in form and but in ceremony, the mere observance of recog- nition and of law which this rules practical application has are court so often announced. cases almost We deciding term and for errors of law that convictions do every reversing not I have compare with those that importance attempted out. in all point Indeed, it can be asserted that safely records this court no can case be found where conviction offense has face of capital been sustained such objec- tions as this case I aware that that is a am broad presents. statement, but I fear have no it can be questioned.
I can see no reason for this case an Mur- making exception. der is murder and a wicked case and under crime very every all I no this circumstances; but can see distinction between case, where the defendant has found guilty advising another to administer man on a chloroform to a rich old living fashionable avenue in who New defendant York, and other any or shoots his hand poisons wife, or with own slays poor- est in the land. A beggar must treated error case be legal in the same way as a error other criminal cáse. legal The law is no whether respecter dead. persons living position the victim of has crime, whether rich poor, of a feather in the weight administration the criminal law.
This court has in such this dealt with always cases as ques- tions of law and when errors have been disclosed the record have reversed of conviction without much judgments regard or innocence: It has question guilt always recognized rule there cannot a fair and trial, within impartial true terms, those unless accused meaning has benefit of law every that could advantage principle aid him in has defense, held, sustaining whenever the not harmful, claim was errors were made that the burden not, by any possibility, does showing not rest CRIMINAL XIX. NEW YORK VOL. must accused, but the show that such evidence People was harmless and could not have him. v. prejudiced .(People *79 Smith, 210; 172 N. Y. 17 N. Y. Crim. In v. People 39.) mar Y. 18 N. Y. Crim. a (177 237; N. Taylor 92), ried woman was convicted murder of her husband him head and with a She off his by shooting pistol. chopped of his some limbs and burnt them in stove. She also burnt the rest of the burnt flesh and were found in The bones body. of manure at the barn and identified. case The heap pre sented a this human frightful example depravity, yet Gray the conviction, court opin reversed the Judge writing on the and as ion, evidence of threats ground that previous was saults made It held the deceased had been excluded. that such whether question evidence admissible upon in self- the homicide been committed was justifiable as having 15 N. 247; defense. v. N. Y. In Mull (167 People Y. in a capital Crim. we reversed a conviction 490), ease-, ground Judge writing opinion, Landon case attorney up district summing in such on the acquittal jury ground appealed case would them to the hostile criticism expose plain 18 N. Y. v. N. 315; Y. community. Bonier People (179 In it was on the reversed a Crim. we conviction 516), ground which in law the presumption error to refuse charge the failure to both from arises defendant’s character good be suffi it as of itself may well the testimony given, attack raise reasonable as to defendant’s In guilt. cient doubt v. N. Y. N. Y. 210; Smith Crim. 39), People (172 reversed the of conviction in a where the court case judgment and the re wife, defendant convicted murdering in the versal was stated grounds opinion. in this
These court indefi- precedents might multiplied that in be it remembered none of them was there a nitely, delicti, as to doubt as to the author of shadow corpus errors for the were, and the reversal crime, assigned my V. PATRICK. errors with the catalogue comparison opinion, insignificant not necessary It is case at bar discloses. in the that the record that, remark I will guided the discussion. only to extend met and I have court, fairly decisions of this light I at the out- assumed burden view, the discharged, my set of the discussion. and a trial should be new granted. reversed judgment I of this Oh. J. : vote for reversal
Cullen, (dissenting) I but as stated by with several judgment, disagree propositions I brother my deem to state necessary O’Brien, grounds action. my I think the evidence sufficient to justify require *80 submission of the of the defendant’s of the crime issue guilt had charged the trial been from jury, free substan- tial error I would not be to interfere with the verdict disposed I ISTordo jury. on which regard grounds applica- tion was for made a new trial as substantial merit. possessing The fact that Jones, the defendant’s towas have accomplice, practical from immunity was as on the punishment apparent trial as it ivas on the made for a new trial. The application fact that the coroners’ received for physicians compensation their services in them making experiments to qualify experts on the trial constitutes no their ground testi- discrediting mony. While every must person sacrifice his time for the ad- ministration of justice and to facts within testify his knowledge in criminal cases without I any compensation, do under- stand that a witness can be to compelled exercise his judgment as an expert to the results of testify his examination and reflection without for his compensation If labor. is there suspicion that the of an testimony expert witness is affected by , the magnitude compensation has received, is to re- ceive, he be may examined as to the matter by the opposing counsel. But the presumption being the witness is to re- ceive compensation, inquiry if it, to deemed important, XIX. VOL. NEW YOBK CBIMINAL BEPOBTS, in this case There is at the trial. nothing
should be made was extravagant paid that the show compensation subsequently or exorbitant. the trial error of whether an committed question a necessarily a reversal requires judgment
a cause the Code terms question degree. By express are Criminal Procedure we (§ required give judg 542) errors or ment without technical exceptions regard Personally, not affect do the substantial rights parties. I written for the affirmance within a time short past, case,* plain legal where there judgment, capital error in the admission of seemed clear because it testimony, that the could have had no effect on improper testimony verdict. There are number of errors that character case which be well such as present might disregarded, allowance of the question district a wit attorney put ness for the him he did not whether know prosecution asking to whom the will and every person disputed signatures Bice had been had them presented false. The pronounced People so proved signatures forgeries by many witnesses and such abundant it is not to see possible the ansiver could have ver question influenced the *81 of the Such is case jury. also with the xdict testimony which Jones was allowed to give as confessions made him by Patrick when he and Patrick in were consultation with their counsel. This error, if error it was, which be may doubted, could have had no influence on the verdict. Jones- had already testified to the of Patrick crime complicity and that was the question be determined by jury. Jones’ that Patrick confessed subsequently crime did tend presence to make story of the transaction more both any credible, as and the complicity confession on the rested statement of the same witness, * Case, is made 235; Reference here to the Silverman infra, 181 N. Y. p. 360. PATRICK. V. extent is limit there But accomplice. an witness we think where case even errors disregard we may aof The guilt the facts. by warranted the verdict is this court, not by jury found by must be prisoner of rules with the in accordance on trial conducted found but which technical not only which is law. is error It we the defendant not affect the substantial right does sev- were there In opinion my are disregard. authorized to and exclusion admission in the committed eral vital errors testimony. under charges made
1. suicide or an attempt Suicide as a confession is confession, only crime, like flight, evi- is admissible at suicide that the fact such attempt com- Jones was not confession dence. It is that the plain therefore, Jones’ attempt evidence Patrick petent and, against at suicide incompetent. was equally
2. The the death prosecution theory of chloro- deceased was caused not the anaesthetic effects the irritant of chloroform effects vapor form, ex- on the one of the As said by asphyxiation. lungs death of the de- chloroform caused the perts for People, ceased same as the ammonia or other just vapor irritant would have done. This gas theory based proposition that else than an irritant nothing vapor gas could have a condition of co-extensive produced congestion with the whole Loomis, lungs. the principal Dr. probably “ expert for the testified: prosecution, important point in an would be an autopsy that kind explanation intense all over the That would congestion call lungs. any- body’s attention to find out why those lungs intensely all congested over; and no finding death, other cause of you would reason that some irritant, either or some vapor gas *82 or had come something, down the through through mouth, ^ the these bronchial windpipe, tubes and through had gone over I the of lungs. outside know or nothing beyond XIX. VOL. NEW YORK CRIMINAL REPORTS,
irritant that will gas produce congestion, co-exten- vapor with sivc Jones testified he did know lungs.” whether the deceased was or dead living time of the at administration the chloroform. if of But it was established that there was this general congestion and that lungs such be congestion could but an irritant produced by nothing it vapor deceased gas, plain that the must been alive at the time the administration of the because chloroform, if dead he could not have inhaled its vapors. Therefore, case in the turns on the first instance of fact whether question there was this co-extensive congestion and that lungs, fact depends three coroners’ statement two witnesses, physicians chemist. The most these wit- important nesses in his was Dr. testimony Donlin, one the coroners’ physicians. The defendant’s counsel contradict sought witness’ in this the close respect by proof he had declared autopsy presence reporters- and others deceased died from old This testi- age. money was excluded on the that the attention ground witness Donlin had not been called to the declara- specifically tion. Counsel then asked to recall Dr. Donlin for purpose of him whether he such a. asking declara- .made tion. This was refused. I request think the attention of the the, had been witness called to if sufficiently declaration, it had not I think the refusal the trial allow been, court to the witness to be recalled so that the declaration question to him might put a clear abuse of discretion. As al- ready said, the extent of the congestion vital point the case. Dr. testified Loomis that such a condi- substantially “ tion of so abnormal congestion was. would call that it any- attention to find body’s out those why intensely lungs all over.” if ISTow, at conclusion of the congested autopsy so far from remarkable state con- doctor, alluding deceased died of old stated well gestion, age, might *83 V. PATBICE. of he had not observed the state congestion that be argued Dr. on trial to which, he testified the according which to the first to attracted have been the Loomis, thing should This error seems attention of one the autopsy. performing be that cannot to me most substantial in its character and one disregarded. to that it was exclude
3. with error I agree Judge O’Bbiee to the defendant’s counsel the hypothetical question put by Dr. it failed to state expert, that' ground Lee, co-extensive The defend- with the congestion lungs. Dr. ant’s counsel was not to assume that fact even if obliged Donlin testified I did had to it unqualifiedly, think not. He had assume the most case right aspect favorable to his in his side and he hypothetical question, to ask right jury reject testimony doctort co-extensive with the congestion lungs.
4. I O’Bbien exclusion agree Judge to Dr. in the question Gardner, expert experience great administration as how admin- after its chloroform, long istration the odor of chloroform would be discernible, error, and also that to Dr. exclusion the questions based on his researches as to> Millican, judgment in the cases of death presence chloroform, of congestion was error. The effect of these erroneous expert rulings be underestimated, must not for the vital fact be was the death Bice proved though by chloroform, Jones testified its an ac- administration, still Jones being it was under Jones complice the statute that necessary corroborated. in this case consisted of the That corroboration of two proof facts, lungs general congestion inhalation such condition could be only produced essentially an irritant which was as second vapor. fact, rested first, an element wholly proof necessarily *84 XIX. VOL. NEW YOBIC CRIMINAL evi- in on such on errors rulings evidence. expert Therefore, were and dence substantial prejudicial. in is unnecessary,
There other the case. errors It I vote on base discussion, my .however, pursue grounds stated. Haight concur with Gray,' JJ.,
Bartlett, Werner, J., reads J.; J., Vann, O’Brien, dissenting opinion, concurs; Ch. concurs memorandum. Cullen, J., of conviction Judgment affirmed. Beargument.
IV. Motion
bob
Court
David Edgar S. (Howard District Jerome, Attorney William Travers Gans, opposed. counsel), V. PATRICK. who dis- minority I am Ch. J.: one Though
Cullen, of conviction from affirmance judgment sented for re- motion that the I clear present am case, entirely for such applica- should denied. The grounds argument in Fosdick v. Town tion are stated by Judge Peckiiam ' “A Y. : motion reargument IST. 651) Hempstead (126 decisive founded on that some question must be showing papers “ case and has been overlooked submitted counsel duly *85 the or that in conflict with statute court, the the decision is by or a further ob- decision.” learned judge controlling “ err cases, served: While it is we many very possible there the rule is a must yet one considering adopted proper atbe some an end of point litigation.”
While in a case we would not hold an capital appellant that the have raised rule overlooked by must point counsel, on the it as is as true of such a case just argument, of a civil case that an end of liti- “ there must some point That was reached this case when gation.” after point far extended in time accorded counsel more than hearing that has been had before court for after a years, this considera- tion of case for and after months, some discussions frequent at the consultation the court announced its decision. The table, matter should not now be unless some reopened important objection has been overlooked us.
We care the examined with elaborate filed brief counsel and find no appellant’s objection discussed therein that it not considered before decided court appeal. In written all that were then opinions questions raised deemed were that were considered important and dis- cussed, and the clearly expressed opinions views It of the court thereon. is several members true that in the raised some of exceptions trial opinion upon the prevailing alluded to not specifically separately discussed, the case the dissenting opinions, were, all appear there- NEW YORK CRIMINAL VOL. XIX. fore, court before it announced necessarily upon by passed its There no valid is, therefore, determination. reason for this motion. granting is for however,
It urged, ground application who father wrote the is the Judge opinion, prevailing Gray, of a subordinate counsel in the district attorney office of New Mr. York, G. who Mr. Henry Gray, appeared ° another Garvin, to- motion deputy assistant, opposition made defendant for a by the new trial newly-discovered evidence. is It conceded that this no constituted relationship legal is contended that the disqualification but it judge, Gray fact it rendered to sit case-. improper Judge It would abe sufficient answer to claim that of an objec tion of character, from impropriety distinguished legal disqualification, the himself is the sole arbiter. judge (Matter & Stevenson Dodge N. Co., 77 Y. But Mfg. 101.) Gray is now objection not to presented alone but Judge whole court, to our associate that we should only just *86 our views on express and have subject. Many great judges allowed their relatives to others have them; before practice declined to cases in which hear near relatives as coun appeared sel, but we never of a in have heard to sit judge any refusing case because at some earlier his relative had taken period part in"the in the cause-. This legal proceedings appeal argued in court Land-on and Mr. by Judge Howard S. Gans for Mr. prosecution. in no in Gray way appeared prepara or in tion and his sole argument connection appeal, with the case was stated. that think already We would not it occur to the most sensitive officer judicial that such previous in a appearance case his son, as counsel for a not private litigant, officer public official performance duties, would either bias his action or affect confidence public Gray in the that action. if impartiality' While had Judge retired from the his associates would hearing appeal have V. PATRICK. felt have same timé would at the motives, respected an excessive degree in to delicacy indulged practice ordinary burden their expense him, have fallen instance, the court first would, one of them. It had been rather unwarrantably imposed upon was entertained be further that if objection said may Gray’s this appeal Judge participation hearing at the commencement of the argument, should been made when if we should have he had counsel of his associates sought Gray advised Counsel should duty that it was his sit. Judge Gray’s action action, have awaited finding Judge now take the unfavorable, objection. should denied. motion reargument
Gray, IIaight, JJ., concur; Bartlett, Vann Werner, absent. J., O’Brien,
Motion denied.
V. Motion to Amend the Remittitur. N. Court Y. 537. Appeals, 1905; 20, 28, 1905.)
(Argued Nor.
decided Nov.
a recital
therein
remittitur,
inserting
Motion to amend
defendant
of Appeals
Court
upon appeal
violation
as being
conviction for murder
challenged
its
and that by
Federal Constitution
certain
provisions
denied.
contention,
(See
overruled such
decision said court
Concur: Werner, JJ. *87 O’Brien, J. Dissenting: Application
VI. to Re-sentence. n Court, York County. New
Supreme
(Unreported.)
an order
was given
of motion
a notice
1905,
13,
ÍSTov.
On
to bring
Sing prison
of Sing
and warden
the agent
commanding
NEW YORK CRIMINAL
XIX.
VOL.
the defendant before the
Criminal
Supreme Court,
Term, on
Nov. 24,
to
1905,
into the
circumstances
inquire
determine
"if
reason
any legal
existed
the execution and
against
sentence,
such
upon
determination' to
issue warrant to do execution
of said sentence
the week to
during
etc.,
be appointed,
pur-
suant
sections
504 of
503,
Code Criminal Procedure.
This
taken
accordance with
doctrine of
proceeding
Matter of
The foregoing application re-sentence, etc., was brought Nov. Criminal,Term 29, at 1905, of the Supreme Court, in New York county before a motion J., Davy, granted set the date for before fixing sentence Stover, J., at II Special Term Part New York Supreme Court, county, Dec. at 1905, Dec. Upon 1905, p. m. 6, 6, came proceeding again on before J., Special Stover, Term, Part aforesaid. II, The re- proceeding thereupon ferred by Stover, J., the justice then at the Criminal sitting Term of the New Supreme Court, York county. was then proceeding on before brought J., pre- 'Rogers, at said
siding Criminal Term, after and, defend- hearing, the ant was duly sentenced to be executed the week com- during Jan. 22, 1906. mencing
Various reprieves were subsequently to enable granted defendant make his second motion for a new which trial referred to below.
VII. Second Motion for New Trial.
Court of General Sessions in the City County New York,
June, 1906.. (Unreported.) por Application Trial. 1. New peculiar depends upon each books Since case in the features itself, general except can drawn few well-estab- no deductions guide judge legal in the exercise of a must principles lished may promoted. be served justice in order discretion *88 V. PATRICK. Credibility Accomplice; Admission of Witnesses. 2. Jones, trial, accomplice, by It affidavits that since shown Rice, nothing had to do with the murder had stated that Patrick himself blame on perjured laying and that he had Patrick he, himself, might that escape. order That, made, assuming Held: that such admissions (1) (2) hearsay evidence was cumulative. Also, that, case, Held: on this branch of the witnesses were unworthy of grant belief and such a trial new be an of judicial would abuse a rather than perversion discretion and promotion justice. Experiments 3. as Evidence. appears It that 14 human bodies' experiments were made on injection right artery into embalming fluid brachial test and, could, it lungs, whether the fluid reach the could if whether diagnostic destroy purposes. experiments them for These would were carelessly criticised as conducted. Held: That seem sought “It would trial on where a new ground of newly discovered experiments evidence obtained investigation, applied method the tests therewith the at, character sufficiency of the results arrived should be scien- tifically flawless and so invariable and as to inevitable demonstrate a rather than occasion for speculation.”
law furnish Opinion in. 4. 'Evidence—Conflict opinion pointed out the the evidence of the conflict between on experts both sides. newly disagree opinion Held: That doctors on discovered where evidence, evidence, can judge how declare that such burdened as it is uncertainties, obscurities, disputations technicalities and would, jury, presented probably if to a cause a different verdict.
This second motion new trial ground newly- discovered evidence notice motion brought served 1906. had. 2, Various February hearings The motion motion made [Note.—This after the affirmance of the final judg- appeal Hence no could be taken ment. from the order denying the (People Mayhew, 607, 112.) motion. v. 151 N. 12 N. Y. Y. Crim. It during legislative introduced, session appears 1906, a bill was Patrick, interest of purpose 517, for the amending in the § Code Crim. Proc., as to an appeal order, so enable to be taken from in case the passed was denied. The bill application Legislature, but was vetoed Higgins.] by Governor *89 YORK CRIMINAL REPORTS, NEW VOL. XIX. 11, 1906, was denied June and the order finally upon June 1906. 11, entered upon
Black, Olcott, & K. (W. Gruber M. Bonynge Olcott J. Kohler, of for the motion. Edgar counsel), William Jerome, Travers District P. (Francis Attorney Garvan, Assistant Attorney, of counsel), opposed. District
Gore, R.: 10th When on June, 1901, defendant a interposed indictment him plea guilty charging with the M. William demanded Rice, murder thereby his constitutional trial before right jury judge all lawof questions fact involved in accusation. This trial he had before a his own jury choosing, during ten court of its he availed himself of his weeks further progress constitutional silent and right by remaining compelling prosecution all reasonable affirmatively beyond prove guilt doubt. When this done and his declared the ver- guilt dict the law its tender for a man jury convicted regard of murder stayed execution the sentence until trial should reviewed on the law and facts the Court of before After an Appeals. review, exhaustive of that majority court, said by Gray, J., speaking that: “ A careful of this record and a reading consideration grave of the matters of proof convinced me that the reached jury conclusion and just that there is warrant nor for, no do the interests of demand, our justice interference with the judg-. I ment. see no occasion for case of this the broad exercise conferred the State court in power cases to capital reverse and to conviction a new trial the indictment.” grant since It now over four years judgment pronounced defendant, and has, during period through efforts of and resourceful successive most skillful counsel, PATRICK. V. now, execution, and its in their suspended eminent profession, a retrial and he seeks second since judgment, time were disposed re-examination of all the issues that *90 confined cannot he to For a new trial verdict jury. it but cause advanced specific question application, is if no trial and devolves upon had ever been prose- cution detail fact, the burden of if it can, every again proving, however, and This, circumstance a conviction. to necessary must not militate in the degree granting slightest against defendant the relief on examination of pro- if asks, posed that on a new there arises a proof reasonable presumption trial the verdict of the would be different. jury
This extent. examination has been had to the fullest During the examination their of witnesses has been given attention has and characteristics. Careful consideration personalities and record affidavits the voluminous given moving and from testimony, while the nature and circumstance a case decision be not necessary should prompt given, practicable to write review or or to enter lengthy opinion upon a discussion no can found of since case be authorities, like character will and each serve as since precedent, case in the books no features depends itself, upon peculiar deductions can general drawn therefrom a few well except be established which must the exer principles guide judge discretion order be justice cise served legal may v. 21 Co. Matthews, 150; Misc. Wilcox (Smith promoted 48 v. 22 Y. Hun, 54; v. Sistare N. St. Barclay, Olcott, Rep. v. 564; R., Barrett Third Ave. R. N. Y. And that 628). be neither the may done, nor hearing testimony, its consideration or thereon, conclusions have been confined by so-called rules, technical lati broadest widest tude has been order that given everything material character should be properly presented defendant’s behalf.
VOL. xix.—16 XIX. VOL. CRIMINAL YORK NEW That motion: (1) There three assigned are grounds “ taken in con- affidavits it is moving made appear had herein that with all junction prior papers proceedings such can evidence another trial the defendant produce verdict, have changed if would before received probably not cumu- trial, is has been discovered since the evidence trial was which on the lative and the failure to produce that the ver- on ”; ground “ owing diligence (2) to want “ law,” ground dict (3) rendered was contrary will in furtherance case a new trial the whole justice.” of the mo- filed in affidavits support
There twenty-five Jones and eleven relate to admissions tion, fourteen of which *91 be termed what, for of description, may convenience medical side of the case. those for examined, including witnesses were
Thirty-three motion. against trial, that main of contention since the are points (1) Patrick had a number in Texas that Jones stated to of persons Bice; that he perjured do with the murder of nothing Patrick, him- he, order that himself in the blame on. laying self, injection escape, embalming might (2) and its fluid reached the the brachial artery lungs, through determine, effect was such as to make it impossible Bice, on the whether death resulted from not autopsy body chloroform. inhalation of As admissions Jones these be alleged questions may asked: on the motion to true, all that is claimed be is
Assuming it fact ? Is it discovered evidence of ? any independent newly Is ? Would its introduction on a new trial cumulative it prob- verdict ? different ably produce
It is not fact. As it evidence of an stands now independent and could not be it is introduced as hearsay incompetent, 2ti PATBICK, V. evidence in chief.* in which could become way The only if cross-examination, would on competent Jones, be by asking he he made then the had, such If denied that statements. he had. affiants that he could be called in contradiction to show This would be Jones made show that order permissible ad contradictory statements. In such reality mitted for the a wit credibility purpose impeaching ness, on the makes state theory that witness who contradictory ments is not entitled to a of belief. high degree
If Jones should statements, admit made such then could the affiants called, be for there would be nothing contradict. Jones’ admission or denial of such made having statements would not to a new other differ- present jury any ent than that which was question passed upon jury heard There him. would be new in the nothing question Jones’ would no stability character; there new discovery statements. contradictory Those thoroughly questions discussed himself exhaustively before Jones jury. admitted witness stand had made at least four contradictory statements, some under oath, others meant deceive his then all counsel, and more or less false.
When confronted with these varying statements, and with in which position they placed him, as equivocal to whether *92 should to what credence be he said at given the trial, he claimed no matter how different many statements he had “ then the true made, one, said, he was giving If do you ask who was it, House, not Mr. counsel my believe and who I counsel. waive all questions Patrick’s I privilege. Mr. as I state House, told this to before I story here, ever saw * K., aby murder case letter written person, In the Greenfield third murder, he, K., a like had committed well as the effect to defendant, letter, but were offered evidence anonymous were So, to likewise, declarations of K. and others hearsay. oral excluded error, Ho the evidence and excluded. Held: were offered effect the same 75.) (Greenfield People, 85 N. Y. hearsay. v. merely being NEW CRIMINAL VOL. XIX. YORK
Mr. Patrick was Mr. (assistant Osborne district attorney). with him, and I conversation had a present, previously I Under I Mr. House.” which insisted that would tell claim of Mr. Mr. House was Patrick, as'counsel to privilege this conversation. permitted to in relation to testify to should be given consideration which reference In. direct evi- Jones’ “The were testimony, jury charged: . . . dence Jones comes murderer from a self-confessed caution But such with great should be received testimony be watchful of law, ever very considered, carefully convicted interests he cannot accused, provides “For unless such And again: be corroborated.” testimony He un- five stand. nearly court on the witness Jones was days at- derwent district close and examination exhaustive counsel and a most cross-examination torney, rigid was suffi- in a murder the defendant. His self-confessed part close observance cient on attitude justify your part In determining man and he said. everything of scrutiny consider should the truth testimony, you falsity made statements . . . he his admission other times that at in conflict were not true and confessions which “ on . have a right You with his here.” And again: that he fact consider the of Jones’ question credibility with each differing has confessions various statements and made the stand.” other and from his own testimony differing counsel’s court with defendant’s jury, compliance charged the “ witness case that : It in this request (number 13) appears relating Jones has made statements absolutely contradictory matters so serious as tend himself and others charge offense. In capital testimony, therefore, you weighing has, must consider before as a witness who appears you false, whenever it have suited his stated what was may purpose, whenever are the inference that making you justified *93 so he would do, it for his interest continue make views 245 V. PATRICK. protean false statements.” fact and effect of Jones’ So that the no and new reiterated, as a iterated and facility witness were have a jury could, new of moral more turpitude, by any discovery comprehensive or value quality measure of the knowledge Jones’ In than verdict. testimony delivered jury this of Appeals epito- branch the case the Court considering mized it in this “ sentence: evidence, independently testimony a crushing impli- accomplice, fraught cation of the to kill Bice in the deliberate defendant purpose in order to possess estate.”
Strictly this new is cumulative because evidence speaking, it is of the same when admissions same and kind, point, of a witness are on the admissions trial, other given evidence aof similar character and to the are cumulative same point v. 100 (Hines Driver, Ind. 315). time no difference be-
Except point there is substantial an admission of tween trial an admission before and falsity after if falsity trial, a verdict be obtained by perjury even will court not set has con- it aside unless witness victed of 332; v. Jones’ Holtz perjury Patton, Eq. (Dycke v. Schmidt, Jones & Spencer, 327).
But even if the serious defects which have been out pointed did not exist there would remain to be considered quality the character the. witnesses branch of the motion.
It would be human taxing for- credulity beyond point bearance to even ask twelve men in box credence jury give to the witnesses who have testified to the admissions alleged Jones. from the of their
Apart stories, inherent improbabilities trail of common was unmistakable. From design purpose the first witness, last, who confessedly himself, to the perjured there was little either or kind. difference With some degree few shown to exceptions, "were persons bad repute
246 VOL. XIX. YORK CRIMINAL REPORTS, NEW his moral if with all Jones, obliquity, belief, of unworthy called were their statements and jury were to deny would justified the truth lay, they conflict decide where a non liquet. morals returning in law and solemn judgment of a jury the verdict To set aside be an abuse would, my opinion, on such testimony of court * rather than a promotion discretion and perversion of judicial of justice. or medical branch second is no that on
There claim made fact re- a new discovery motion has been there body Rice, lation the death of the autopsy upon All that death. disclosed the cause of chemical which analysis made, subsequently is is from certain claimed that experiments, which would only to form doctors have been enabled opinions trial, medical men on by conflict with opinions given and con- also their things would conflict with of Rice. and found the body observed ditions trial evidence Thus a basis for new opinion there urged as and also evi- evidence, against to be opinion arrayed against On the trial and chemical conditions. dence facts physical such con- the doctors that the were congested, swore lungs and that inhalation an irritant by gas, caused gestion chloroform testified on the trial is an irritant Jones gas. Patrick, as directed he administered to Rice chloroform to Rice that also under the same direction gave during testified that sickness and iron Doctor Witthaus mercury pills. and a mer- he found in of Rice a quarter grain intestines for such a in his account cury, opinion, satisfactorily must have been a much residium, mercury larger quantity and absorbed life, taken Rice process during On this point jury charged absorption body. * case, though even murder one in the Shea A trial was refused new Shea, (People committed the crime. he, and not McG. made affidavit 307.) 111; Shea, Y. 11 N. Crim. Misc. v. V. PATRICK. *95 was substance given if or other poisonous mercury “ con- and weakened sickness Eice with the intention of causing if chloro- and death, lead to his dition which ultimately might and death, of form was administered for hastening the purpose of the chloro- death ensued after the immediately application death, consider of form, may, you cause determining in connection sickness condition of Eice weakened of chloroform. his the effect of resistance to strength power In sickened other if by poison Eice was weakened words, which had of to him producing for the purpose given death a different slow by and, addition, process, poison death, hasten more powerful nature1 administered it all have a you if believe right, that, part you regard one scheme or and as of one transaction, design.” forming part if
Under this determine instruction the right jury death both. by was caused chloroform or mercury by and not control is purpose evidence to aid expert jury, it, and as a of the taken upon verdict must be jury finding every question within of their scope powers. On this said: point the Court of Appeals
“ The corroborated Jones mercury body finding to his weaken mercurial to the deceased to having pills given If should system. probability doubt be thrown upon Jones to administer the chloroform means by able being n cone left on in the evidence face, light jury, the medical believe ef- for the that the defense, might experts fect of the cone face of the deceased placing cause him at once into a state of narcosis or, pass weakened death immedi- condition, to be stricken almost ately.”
This of the case and settled the verdict phase passed evi- lost of in the jury wholly sight proposed opinion dence. But a brief evidence its even reference to will test intrinsic worth. NEW YORK CRIMINAL VOL. XIX.
Fourteen on human dead experiments bodies were made fluid into the injection brachial ar- embalming right to test tery whether fluid could reach the if and, lungs, could, would it them for Dr. destroy diagnostic purposes. Weston performed all participated performance ¡Notes ¡Notes fourteen. of three were taken. of four roughly were lost and notes of seven months were not made until three after experiments. Dr. two Biggs performed of these experi- with Dr. the fluid ments was not when Weston, present *96 did not injected, know the cir- how much was injected cumstances under which the had was made. injection He his notes in destroyed these cases. Dr. Stewart made seven of the Dr. experiments with Weston. *97 (j) red lead of or who and the solutions starch
gravity prepared which tell how long used in nor could they injections, (k) death in bodies had cause of any dead, nor (1) nor case, one whether any lungs congestion (m) found one case existed before embalming. is on would seem that where a new trial sought It ground discovered evidence obtained that newly experiments and therewith the method of tests applied investigation, at, arrived should be and of the results character sufficiency inevitable dem- flawless and and as to so invariable scientifically a law rather than furnish occasion for onstrate speculation. is conclusion irresistible these experiments that that the in- science, for the love of interests pure
conducted XIX. VOL. NEW YORK CRIMINAL results and volved were subjective objective, rather than claimed were with the tinged dominaney prepossession. recog-
In the and law demonstration truth the discovery re- scientific nizes and avails itself true of the light afforded main- for its established search, but integrity rules and specula- tenance of assailed theories justice cannot be nor definitive tions neither founded are upon experiments critical science. conclusive cannot be' approved by Doctors It is testimony unnecessary compare the experts the medical Witthaus, and Schultze, Kemp, Williams for experts with the medical prosecution, sharp the defense. out that a It will be sufficient point conflict of these learned opinion arises between gentlemen, where opinion doctors discovered disagree alleged newly how burdened can a evidence, declare such evidence, judge it is with disputations uncertainties, technicalities if cause obscurities, would, presented jury, probably verdict. different suffi-
On no one of the motion there urged grounds trial, and, cient a new is denied. grant' therefore, cause notes five He made no until months afterwards. Dr. Brooks made two of the experiments with Dr. Weston after Dr. Weston had injected fluid, but his presence. Of these no notes were experiments taken. All of these in a experiments made and desultory fugitive manner in the city the unknown morgue dead with a singular of those disregard precautions tests, of ob- accuracy servations and results. Where noting are made experiments for the of purpose the formation of testing theory, opinion or the of conditions ascertaining results, accurate notes made of during progress are of experiments value, not great only the witness examined and cross-examined may be upon them, but because scientific data are and in- so minute volved that cannot they be intrusted safely to the human mem- with its ory, attendant infirmities and where uncertainty, no notes made, are ifor, made, not made for months afterwards, the value of the experiments and clouded depreciated doubts their of Where are integrity. experiments made for of evidence of purpose results law of giving Scotland, notes to made requires complete filed in court, well be emulated. might V. PATRICK. mind in the box jury To mind—and that is the lay some are be submitted—there which this evidence is sought doc- with these experiments. features connected striking chemical of elements or properties tors could not tell (a) if difference, nor (b) fluids which they embalming used, used, which were fluids the Bellevue and Falcon any, between chemi- nor same whether used contained the fluid they (c) into cal injected fluid contained which the properties fluid been injected nor how Bice, much body (d) force had been used into nor how much the body Bice, (e) nor used, kind nor injection, (f) pump force that was used did measure (g) they quantity nor did they (h) their injections (a important thing), very of force in the degree difference give any explanation into body less results between than injecting pint from a various Bice, quart quantities, injecting cases some (in the several bodies their gallon, subjects did have ac- the fluid nor they was not injected (i) measured), in most curate embalming, knowledge process know cases nor did the specific assumed hearsay,