text:
    In the Matter of Title Guarantee and Trust Company, Respondent, against Foxvale Realty Corporation, Inc., Appellant.
    Argued October 15, 1941;
    decided November 27, 1941.

      David Stein, Jesse Starkman, Walter E. Knox and Arthur Knox for appellant.
    The petition should have been dismissed because it did not conform with the statutory requirements. (Low v. Banker’s Trust Co., 265 N. Y. 264; Cleary v. N. Y. State Railways, 199 App. Div. 28; Clinton Trust Co. v. Mahoney, 252 App. Div. 763; Jamaica Sav. Bank v. Risian Realty Corp., 165 Misc. Rep. 372; Chase Nat. Bank v. Guardian Realties, Inc., 283 N. Y. 350; Matter of Mortgage Corp. v. Menan Realty Corp., 258 App. Div. 429; 282 N. Y. 724.)

      C. Elmer Spedick and John C. O’Malley for respondent.
    The procedure of respondent in the examination of appellant’s books for the period from February 1st to July 31st was both proper and timely. (Matter of Mortgage Commission [Salisch], 248 App. Div. 739; Chase Nat. Bank v. Guardian Realties, Inc., 283 N. Y. 350.)
   Per Curiam.

In statutory proceedings, under section 1077-c of the Civil Practice Act, the .court may direct payment only of the surplus produced u during the six months prior to the application.” (Matter of Mortgage Corp. v. Menan Realty Corp., 282 N. Y. 724; Matter of Chase Nat. Bank v. Guardian Realties, Inc., 283 N. Y. 350.) The order of Special Term directing payment of a surplus produced during a different six-month period cannot be sustained on the ground that here the owner of the mortgaged property waived limitations upon the statutory power of the court by its consent to an examination of its records during the period specified in the order. The mortgagee has been afforded opportunity to examine the records showing receipts and disbursements during the six-month period ending July 31, 1940, and, upon the application made under section 1077-c, the court might require production of evidence showing receipts and disbursements for the subsequent period until the application under section 1077-c was made so that the surplus produced during the statutory period could be computed. That would constitute a practical procedure upon this and similar applications.

The orders should be reversed and the matter remitted to the Special Term for a rehearing which will enable it to determine what surplus, if any, was produced during the statutory period, with costs in all courts to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Audrey-Grace Corporation, Respondent, v. Entroc Realty Corporation et al., Appellants.
    Argued June 13, 1941;
    decided November 27, 1941.

      Maurice Knapp and Murray C. Spett for appellants.
    The approval and recommendation of the Mortgage Commission to the proposed plan of reorganization and modification of the first mortgage was not necessary. The seller complied with every prerequisite'giving rise to the obligation of the purchaser to pay the additional installment of $1,500. (Matter of Bond & Mortgage Guarantee Co., 157 Misc. Rep. 240.) In view of the breach of the contract by the purchaser and his failure to make an additional deposit after due notice, which made time of the essence, the Appellate Division was in error in adjudging that the contract was in full force and effect. (Bowen v. Horgan, 259 N. Y. 267; Flanders v. Rosoff, 111 App. Div. 1; 188 N. Y. 616; H. W. Hotel Co., v. First Nat. Bank, 246 App. Div. 669; Schmidt v. Reed, 132 N. Y. 108; Schiffer v. Dietz, 83 N. Y. 300; Myers v. DeMier, 52 N. Y. 647; Taylor v. Goelet, 208 N. Y. 253.)

      Charles Berlin and Irving W. Daitch for respondent.
    Plaintiff is entitled to a judgment decreeing specific performance. (York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128; DeForest R. T. & T. Co. v. Triangle Radio Supply Co., 243 N. Y. 283.)
   Per Curiam.

This is an action by the assignee of the purchaser of real estate for specific performance. By the terms of the contract the seller agreed to obtain a modification and extension of the first mortgage so that it would be extended for a period of not less than three years from the date of the extension and so that interest together with amortization should not exceed seven per cent. The seller was to make immediate effort to effect such modification. The contract provided that the sum of $1,500 was to be paid by the purchaser “ upon the written approval and recommendation by the City Bank Farmers’ Trust Company and any other institution, person or persons having authority therefor, of a proposed reorganization or modification ” of the existing mortgage and further that upon obtaining from the holders of the mortgage certificates and the City Bank Farmers’ Trust Company and any other corporation or governmental body, having jurisdiction thereof, written approval and recommendation of an offer of the Seller as to the proposed reorganization in accordance with the terms hereof, the Purchaser shall pay to the Seller the installment of $1,500 hereinbefore referred to, which is to be held in escrow as hereinafter provided.” The seller was to have sixty days from the date of the execution of the contract in which to obtain the modification and extension and an additional thirty days if it had obtained the necessary approval and recommendation and had commenced a proceeding in the Supreme Court for the reorganization and modification of the mortgage.

There was provision in the contract giving to the purchaser the option to pay a lower purchase price in the event of failure by the seller to obtain the contemplated modification and extension of the mortgage.

The City Bank Farmers’ Trust Company gave the required approval and recommendation but the Mortgage Commission declined, taking the position that it would promulgate a plan but that “ such promulgation does not carry with it the approval of the Mortgage Commission to the extension features of the plan.”

After the lapse of the time provided in the contract following declination of approval by the Mortgage Commission of the proposed modification and extension of the mortgage the seller declared the contract breached and at an end for failure to make the necessary deposit after demand therefor. The purchaser then made tender of the reduced amount under the option and upon rejection by the seller instituted this action for specific performance.

The question presented for our consideration is whether the seller was required, as a condition precedent to the $1,500 payment, to obtain the written approval and recommendation of the Mortgage Commission. The latter had no power under the statute creating it to approve a plan for the reorganization and modification of a mortgage (L. 1935, ch. 19). That power was vested in the Supreme Court (§ 11). It may not be said that the contracting parties contemplated the performance of that which was legally impossible. What the parties did contemplate was that the escrow deposit of $1,500 should be made before the final approval of the plan by the court. There was no governmental body which had the power or authority to give written approval theretofore. The provision of the contract, mentioning such a body was, as the defendants urge, a saving or catchall clause in the event that there existed such a body.

A party to a contract may not sue for specific performance thereof without proof of performance on his part. (Bowen v. Horgan, 259 N. Y. 267, 269.) It follows that the complaint should be dismissed.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. George Bohnke, Appellant. The People of the State of New York, Respondent, v. Eloise Brown, Appellant.
    Argued October 17, 1941;
    decided December 4, 1941.

      Hayden C. Covington and Joseph F. Rutherford for appellants.
    The ordinance is void because it deprives the appellants of their right of freedom of speech and of the press and freedom of worship in violation of section 1 of the Fourteenth Amendment to the United States Constitution. (Lovell v. City of Griffen, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Hague v. C. I. O., 101 Fed. Rep. [2d] 774; 307 U. S. 496; Tucker v. Randall, 18 N. J. Misc. Rep. 675; Thomas v. City of Atlanta, 59 Ga. App. 520; People v. Banks, 6 N. Y. Supp. [2d] 41; Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106; Grosjean v. American Press Co., 297 U. S. 233; Concordia Fire Ins. Co. v. Illinois, 292 U. S. 535; Hamilton v. Regents, 293 U. S. 245; United States v. Macintosh, 283 U. S. 605; Holy Trinity Church v. United States, 143 U. S. 457; Davis v. Beason, 133 U. S. 333; United States v. Schwimmer, 279 U. S. 644.) The ordinance is void because it deprives the appellants of due process of law in violation of section 1 of the Fourteenth Amendment of the United States Constitution. (Matter of Maynard, 275 S. W. Rep. 1071; City of Columbia v. Alexander, 119 S. E. Rep. 241; Real Silk Hosiery Mills v. City of Richmond, 298 Fed. Rep. 126; City of Orangeburg v. Farmer, 181 S. C. 143; Jewel Tea Co. v. Town of Bel Air, 172 Md. 536; Prior v. White, 180 So. Rep. 347; White v. Town of Culpeper, 172 Va. 630; Hague v. C. I. O., 101 Fed. Rep. [2d] 774; 307 U. S. 496; People v. Perry, 265 N. Y. 362; People v. McCauliff, 267 N. Y. 581; People v. Monnier, 280 N. Y. 77; Jay Burns Baking Co. v. Bryan, 264 U. S. 504.) The ordinance is unconstitutional and repugnant to the equal protection of the laws clause of the Fourteenth Amendment to the United States Constitution. (Truax v. Corrigan, 257 U. S. 312; Barbier v. Connolly, 113 U. S. 27; Smith v. Cahoon, 283 U. S. 553; People ex rel. Tyroler v. Warden, 157 N. H. 116; People v. Ringe, 197 N. Y. 143; New York Dugan Bros., Inc., v. City of New York, 169 Misc. Rep. 209; City of Watertown v. Rodenbaugh, 112 App. Div. 723; City of Elgin v. Winchester, 300 Ill. 214; People v. Kuc, 272 N. Y. 72.)

      Dorothy Kenyon for American Civil Liberties Union, amicus curiæ.

    If the ordinance be construed as applying to appellants then it is an unconstitutional exercise of the powers of government. (Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters, 268 U. S. 510; Hamilton v. Regents of University of California, 293 U. S. 245; Cantwell v. Connecticut, 310 U. S. 296; Lovell v. City of Griffin, 303 U. S. 444; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112; City of Orangeburg v. Farmer, 181 S. C. 143; Jewel Tea Co. v. Bel Air, 172 Md. 536; Prior v. White, 180 So. Rep. 347; White v. Town of Culpeper, 172 Va. 630; City of McAlester v. Grand Union Tea Co., 98 Pac. Rep. [2d] 924; DeBerry v. City of LaGrange, 8 S. E. Rep. [2d] 146; Jewel Tea Co. v. City of Geneva, 291 N. W. Rep. 664; N. J. Good Humor, Inc., v. Board of Commissioners, 124 N. J. L. 162; Hague v. C. I. O., 307 U. S. 496; Whitney v. California, 274 U. S. 357.)

      Fred J. Munder, District Attorney (Henry Tasker of counsel), for respondent.
    The ordinance is a valid exercise of the police power. (San Francisco Shopping News Co. v. City of South San Francisco, 69 Fed. Rep. [2d] 879; Buxbom v. City of Riverside, 29 Fed. Supp. 3; People v. Kuc, 272 N. Y. 72; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112.) Freedom of worship is not affected. (People v. Sandstrom, 279 N. Y. 523; Watson v. Jones, 80 U. S. 679.)

      William B. Platt, Jr., Corporation Counsel, Village of Southampton, amicus curiæ.

    The correction of the evil reached by the ordinance constitutes a valid exercise of the police power duly delegated to the village. (Bryant v. Zimmerman, 278 U. S. 63; International Harvester Co. v. Missouri, 234 U. S. 199; Clark v. Kansas City, 176 U. S. 114; Berger v. Quinn, 268 N. Y. Supp. 514; Brown-Forman Co. v. Kentucky, 217 U. S. 563; Commonwealth v. Gardner, 133 Penn. St. 284; Rast v. Van Deman & Lewis Co., 240 U. S. 342; Matter of Stubbe v. Adamson, 220 N. Y. 459; Bacon v. Walker, 204 U. S. 311; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561.) The classifications and limitations contained in the ordinance bear a reasonable and necessary relation to a valid and proper exercise of the police power. (Garretson Co. v. Robinson, 178 Wash. 601; Brown-Forman Co. v. Kentucky, 217 U. S. 563; Tribbett v. Village of Marcellus, 293 N. W. Rep. 872; Olson v. State Conservation Com., 293 N. W. Rep. 262; Patsone v. Pennsylvania, 232 U. S. 138; Bryant v. Zimmerman, 278 U. S. 63; Tigner v. Texas, 310 U. S. 141.)
   Per Curiam.

Appellants were convicted of a violation of an ordinance of the village of Southampton, which ordinance makes any person guilty of disorderly conduct who, without the consent of the occupant of said premises previously given,” enters upon private residential property in the village for certain purposes, including the purpose of distributing any handbill, pamphlet, tract, notice or advertising matter.” The ordinance states that it is riot to be construed, to apply to any person who has been a bona fide resident of the Village of Southampton, New York, for a period of at least six (6) consecutive months last past, nor to any person who has maintained a place of business in the Village of Southampton for a period of at least six (6) consecutive months, prior thereto, or his duly authorized representative.” The ordinance contains a “ preamble ” to the effect that it was enacted pursuant to the village’s police power and in order to protect its citizens against crime and preserve the private property, peace and comfort of the occupants of private residences in the village.

On the trial it was established, without dispute, that appellants, who are ordained ministers of their religion and authorized representatives of a publishing house or publishing department of that religion, and who are not within the exceptions of the ordinance as to residence or business place in the village, did, without the previous consent of any householders, circulate religious pamphlets from door to door in the village very early in the morning of July 30, 1940. The sole defense of the appellants was and is the alleged unconstitutionally of the ordinance in that, according to appellants, it is repugnant to the Fourteenth Amendment to the United States Constitution as depriving them of their rights to freedom of religion, freedom of speech, and the equal protection of the laws, and in that it makes an invalid distinction or classification based on residence in or out of the village.

We hold the ordinance valid. It does not prohibit pamphleteering. It regulates pamphlet distribution in private, not public, places, and gives no public officer any power of censoring the pamphlets or licensing, or refusing to license, their distribution. (See Cox v. New Hampshire, 312 U. S. 569, 574; People v. Kuc, 272 N. Y. 72, 74; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112.) It does not infringe any of appellants’ rights to the free exercise of their religion since it merely regulates their entry onto private property for the purpose of promoting their religious beliefs. It does leave to the pleasure of the individual householder the determination of whether or not pamphlets may be circulated on that householder’s premises, but this infringes no right of appellants, since the Constitution does not guarantee them any right to go freely onto private property for such purposes. As to the alleged invalid discrimination in favor of residents, we hold, taking into consideration the statement of purposes contained in the ordinance’s preamble, that the distinction is valid in a small village where, presumably, the dangers and annoyances of trespasses or unsolicited visits are less when the trespassers or uninvited visitors are not strangers but known, or easily identifiable and traceable, residents of the community. (See New York ex rel. Bryant v. Zimmerman, 278 U. S. 63; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 573; State Board of Tax Commissioners v. Jackson, 283 N. S. 527, 537.)

The judgments should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments affirmed.


author: Loughran, J.

text:
    Mary S. Andross, as Administratrix of the Estate of Raybert S. Andross, Deceased, Appellant, v. Trustees of Columbia University in the City of New York, Respondent.
    Argued October 22, 1941;
    decided December 4, 1941.

      Stephen Callaghan, Ralph Stout and Isidor Neuwirth for appellant.
    The question of defendant’s negligence was one of fact for the jury. (Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; McLean v. Studebaker Bros. Co., 221 N. Y. 475; Peck v. Weil, 231 App. Div. 670; 235 App. Div. 601; 259 N. Y. 540; Meiers v. Koch Brewery, 229 N. Y. 10; Galvin v. Mayor, 112 N. Y. 223; Shines v. W. & Y. Realty Corp., 259 App. Div. 596; 284 N. Y. 647; Frate v. State, 245 App. Div. 442; Swistak v. Erie R. R. Co., 208 App. Div. 553; 239 N. Y. 549; Fordham v. Gouverneur Village, 160 N. Y. 541; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217.) The question of contributory negligence was one of fact for the jury. (Nelson v. Nygren, 259 N. Y. 71; Eastland v. Clarke, 165 N. Y. 420; Lee v. City Brewing Corp., 279 N. Y. 380; Peck v. Weil, 231 App. Div. 670; 235 App. Div. 601; 259 N. Y. 540; Crough v. N. Y. C. R. R. Co., 260 N. Y. 227; Galvin v. Mayor, 112 N. Y. 223; Stump v. Burns, 219 N. Y. 306; Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233; Sackheim v. Pigueron, 215 N. Y. 62; Seyford v. Southern Pacific Co., 216 N. Y. 613.)

      Bertrand L. Pettigrew and Chauncey L. Grant for respondent.
    The evidence failed to establish that any part of the window ledge fell with plaintiff’s intestate, or that any break or giving way of the window ledge caused or contributed to his fall. (Dillon v. Rockaway Beach Hospital, 284 N. Y. 176; O’Reilly v. Brooklyn Heights R. R. Co., 82 App. Div. 492.)
   Loughran, J.

Mary S. Andross, as administratrix, brought this action to recover damages for the death of her husband, a window cleaner, who was killed by falling from a window at the fourth story of a building of the defendant in the city of New York.

The window was cleaned by the decedent from the outside. He had on a safety belt that had been approved by the State Industrial Board. The belt terminals had been attached by him to anchors installed for that purpose on either side of the window. Plaintiff did not allege that these anchors were insufficient or that they were wrongly set. No one saw the decedent fall. The outer sill on which he stood was a block of sandstone. There was evidence that the stone was in a disintegrated condition, easily broken off, as the binder was all destroyed by time.” There was evidence that scales of sandstone were near the fallen body of the decedent and that a piece of the sill eight inches long had been displaced by what appeared to be a fresh break.

The issues have been tried twice. On the first trial the plaintiff had a verdict. On appeal by the defendant the plaintiff’s judgment was reversed at the Appellate Division where the law of the case was declared in a form which both parties adopted on the new trial granted to the defendant. This phase of the record is of controlling import.

Section 202 of the Labor Law (Cons. Laws, ch. 31) provides: No person shall clean any window of a public building from the outside unless the equipment and safety devices required by this chapter and the rules of the board of standards and appeals are provided for his protection and used by him while engaged at cleaning such window.” Rules so incorporated by the statute include the following: “ Window cleaners using a safety belt shall attach one belt terminal to anchor before stepping out onto the sill. During the operation of window cleaning, both belt terminals shall be attached to the anchors.” (See Labor Law, §§ 28, 29; Industrial Code, Bulletin No. 21; rule 21-9.2.)

On the first trial the jury were instructed that the foregoing provision of section 202 of the Labor Law imposes no duty except during the actual operation of cleaning the window.” That interpretation was rejected by the Appellate Division for reasons stated, as follows: “ We construe that portion of the section which prohibits the window cleaner from dispensing with the use of the safety devices ‘ while engaged at cleaning such window ’ to mean that he has the duty of using such devices until he returns to a place of safety, if it is practicable to do so. Here the defendant had provided anchors to which the decedent’s safety belt could have been attached. The evidence permitted the inference that he had disconnected his belt preparatory to re-entering the window prior to his fall. Whether he could have left his belt attached to one of the anchors until he was safely inside the window was, under the circumstances, a question of fact for the jury.” (260 App. Div. 941, 942.)

No question as to the correctness of that construction of the foregoing provision of section 202 of the Labor Law is now before us, for on the new trial that construction was at the defendant’s behest laid down to the jury without objection by the plaintiff. Once more the plaintiff had a verdict. The case is here on her appeal from a second judgment of reversal. “ Defendant’s proof,” the Appellate Division has now said, conclusively demonstrates that it was practicable for him [the decedent] to have re-entered the window from the outside to a place of comparative safety on the inner window sill, or on the floor, before detaching the remaining one of the two terminals from its anchor. The inevitable inference is that the decedent voluntarily relinquished the protection which the safety devices afforded and thus was guilty of contributory negligence as a matter of law.” (262 App. Div. 872.) For that reason the plaintiff’s complaint has been dismissed.

We think it was not open to the Appellate Division on this record to declare as a conclusion of law that it was practicable for the decedent to have re-entered the window from the outside to a place of comparative safety inside it with one terminal of his belt still at anchor. Defendant’s motion for the direction of a verdict in its favor ignored that proposition, possibly because there was substantial evidence that bulky objects obstructed access through the window inward to the adjacent room. At the request of the defendant the trial judge, with the consent of the plaintiff, gave this instruction to the jury: I further charge you as follows: That if you find from the evidence in this case that it was practical for the plaintiff’s intestate to have kept one of his belt terminals attached to an anchor until he was inside the window, and he failed to do so, then he violated the command of section 202 of the Labor Law, which I read to you, and there can be no recovery in this action.” In that state of the record the defendant was bound by the jury’s verdict against it on the issue so left to them. Hence the Appellate Division was without the requisite premise for its inference that the decedent voluntarily submitted himself to being wholly unshackled on the outer sill of the window.

In thus holding the defendant to its position on the trial we do not mean to imply that in our opinion the jury were necessarily wrong in refusing to impute contributory negligence (i. e., outright assumption of risk) to the dececent. In respect of that issue the burden of proof was on the defendant. (Civ. Prac. Act, § 265.) After the decedent had fallen the outer panes of the window appeared to have been completely cleaned; his cleaning implements were then on the floor within. It may have been that he was about to get inside himself — one terniinal of his belt still fast ■— when the outer sill loosened under his feet. It may have been that then and there the fixed terminal was unhooked from its anchor by some involuntary movement induced by the torment of the moment. (Cf. Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345, 349.)

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


author: Lehman, Ch. J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Edward Hicks, Appellant.
    Argued October 20, 1941;
    decided December 4, 1941.

      James F. Ryan, Philip J. Jones and Edward P. Smith for appellant.
    The trial court committed reversible errors in the charge on the law of felony murder with a recommendation of life imprisonment and in refusing to charge as requested. (People v. Ray, 172 Misc. Rep. 1004; People v. Ertel, 283 N. Y. 519.)

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
    The trial court did not err in its charge. (People v. Gati, 279 N. Y. 631; People v. Ertel, 283 N. Y. 519.)
   Lehman, Ch. J.

The defendant Edward Hicks was indicted jointly with his brother, Miles Hicks, for the murder of Max Graboff. The brothers were tried together. The indictment is in common-law form and the jury was instructed that it might find the defendants guilty of murder in the first degree if it found that the defendants killed the deceased and that the killing was committed either from a deliberate and premeditated design to effect death or while the defendants were engaged in the commission of a felony. The jury thereafter brought in these verdicts: “ In the case of Edward Hicks, Guilty as Charged; in the case of Miles Hicks, Guilty as Charged, with a Recommendation of Mercy.” Thereafter sentence of death was pronounced upon Edward Hicks and Miles Hicks was sentenced to imprisonment for the term of his natural life.

At the time of the homicide Edward Hicks was twenty-one years old, married and had two children; his brother, Miles Hicks, was sixteen years old and lived with Edward Hicks. According to the evidence produced by the People the brothers worked, though perhaps not steadily, in a garage. They were in great need of money. There was no food in the home of Edward Hicks and he had no money to pay rent which was due and which the agent of the landlord was trying to collect. The deceased Graboff was the owner of a small store. The defendants noticed that he carried on his person a well-filled wallet. They decided to rob him to obtain the money which they needed so sorely. Edward Hicks struck the deceased over the head with a heavy piece of steel which had been part of an axle shaft of an old automobile. The blows fractured the skull of the deceased, but to make sure that he would not recover, and perhaps identify his assailants, they cut his throat with a knife they had brought for that purpose. Then they opened the cash register and took out its contents, but it contained only five dollars and twenty-five cents. They took the well-filled wallet from the person of the deceased, but it contained no money — only papers of no value to them.

This is, in brief, the story of the crime according to the evidence produced by the People. The defendants did not seriously contradict it. They claimed only that on the morning of the crime they had drunk some of the wretched stuff which is, it is said, known as “ King Kong ” whisky, and that they do not know what they did or what happened after they had drunk that stuff. The mother of the defendants and their brother are confined in a state hospital for the insane, but nothing in the evidence would justify an inference that the defendants were insane when the homicide occurred, except in so far as the intoxication and mental oblivion which, if their story is believed, was produced by the “ King Kong ” whisky might be regarded as temporary insanity. Upon this record there can be no doubt the jury were fully justified in finding the defendant, Edward Hicks, guilty of murder in the first degree and Edward Hicks alone is an appellant in this court. The only questions which he seeks to raise upon this appeal concern the court’s instructions to the jury. In his charge the trial judge instructed the jury: “ There cannot be any recommendation unless the twelve of you agree. But if you have all agreed that the defendant is guilty, it is nevertheless your duty to report that verdict to the Court. Is that clear? Even though you cannot agree on the recommendation. In other words, you cannot use the recommendation as bait, in determining the guilt or innocence of the defendant. The recommendation has nothing to do with that determination. You must first determine whether or not the defendant is guilty of murder in the first degree. Having once determined that (unless you desire to change your mind on the evidence — which you are at liberty to do before you report your verdict, of course), having once determined the defendant’s guilt, that is something like finished business. To use a popular expression, you 6 lay that aside.’ And then if you are all agreed that it is under the felony theory of murder, you pass to a consideration of the recommendation. . Then if you are all unanimous that there should be a recommendation, it is your duty to bring in the recommendation; but if you are not unanimous on that proposition it is nevertheless your duty to bring in the verdict of guilty of murder in the first degree, even though you cannot agree on the other. Is that plain?” When the counsel for the defendant excepted to these instructions and asked the court for other instructions, the court said: I charge this jury again that the first order of business is to decide the guilt or innocence of these defendants. If they find that they are guilty of murder in the first degree solely on the felony theory, then for the first time can they go to the consideration of the recommendation. If they are agreed on the guilt, but they cannot agree on the recommendation, they must nevertheless report a verdict of guilty without a recommendation. I cannot make that any more plain than that.”

By chapter 67 of the Laws of 1937 the Legislature added section 1045-a to article 94 of the Penal Law, entitled “ Homicide.” It provides that: A jury finding a person guilty of murder in the first degree, as defined by subdivision two of section ten hundred forty-four, may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life. Upon such recommendation, the court may sentence the defendant to imprisonment for the term of his natural life.”

By the same statute the Legislature amended section 1045 of the Penal Law by adding after the words “ Murder in the first degree is punishable by death ” the proviso “ unless the jury recommends life imprisonment as provided by section ten hundred forty-five-a.”

The Legislature added these provisions after it had received a message from the Governor in which the Governor said:

) “ While discussing the anti-crime program, I wish to bring once more to your attention a somewhat related matter which has long been on my mind. That is the necessity of changing the Penal Law on felony murder.
Under our existing law, in the event that a murder occurs during the commission of any felony, all those involved are held equally responsible and if found guilty must be sentenced to death. The jury has absolutely no discretion. The verdict must either be acquittal or murder in the first degree for which the penalty is death. In other cases of murder, the jury has the right of bringing in verdicts of murder first degree, murder second degree or manslaughter. As the result of the limitation placed on the jury in felony murder cases, the jury is faced with the choice of condemning to death a man for whom it would like to show some clemency, or, on the other hand, of letting him go completely unpunished.
I believe that the sentence for felony murder should continue to be death, the same as for premeditated murder. However, I would empower a jury to accompany any verdict of guilty with a recommendation of executive clemency in which case the sentence shall not be death but imprisonment for life.
My reasons for this recommendation are two-fold. The first is that it will make it easier for the jury to bring in verdicts of guilty in felony murder cases. In the second place, it will permit the jury to fit its verdict to what it may consider to be the varying degrees of moral guilt of the persons involved in the same crime. I strongly recommend this change.”

By judicial decisions and by statute, courts and legislatures have decreed that in determining guilt a jury shall not take into consideration, or be influenced by, the punishment which will be meted out to a convicted offender. (Code Crim. Proc. § 420.) Judges and legislators would be singularly obtuse if they did not recognize that in spite of judicial and legislative mandate jurors are at times influenced in their consideration of whether or not they should bring in a verdict of guilt of murder in the first degree by their knowledge that sentence of death will follow upon a verdict of guilt of an accused. We know that where a jury is free to determine not only the guilt of an accused but also the degree of his guilt, jurors do at times find guilt of a lesser degree of crime than the evidence may have indicated with compelling force — and that where, as in many cases of felony murder,” a jury must either acquit or bring in a verdict of murder in the first degree, at least some jurors have hesitated, though the evidence may leave no possible doubt of guilt. That is the situation which the Governor asked the Legislature to remedy, and the statute is, it is clear, intended to carry out in substance the suggestions of the Governor.

No longer is a jury faced with the choice of condemning to death a man for whom it would like to show some clemency or, on the other hand, of letting him go completely unpunished.” An additional choice is, under the new statute, offered to the jury. Now it may, by a verdict of “ not guilty,” let the accused go free. It may by a verdict of “ guilty ” without recommendation of life imprisonment as part of the verdict “ condemn to death ” the accused. It may in proper case “ fit its verdict to the varying degrees of moral guilt ” by recommending, as a part of its verdict when finding the defendant guilty of murder in the first degree, that the defendant be imprisoned for life. A finding of guilt by a jury has no legal consequences unless it is embodied in a verdict, and the Legislature has expressly empowered a jury finding a defendant guilty to make a recommendation of life imprisonment a part of its verdict. The statute does not expressly, or by fair implication, provide that a jury so finding shall render a verdict of “ guilty ” without a recommendation of life imprisonment where the jurors have not agreed upon such a verdict. Until the jury has reached agreement upon every part of the verdict it has not agreed upon the verdict.

By providing that a jury “ finding a person guilty of murder in the first degree ” (in cases of felony murder) “ may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life,” the Legislature has plainly said that the jury must determine two matters: First, whether the accused is guilty of the crime charged; second, whether the sentence shall be death or whether the trial judge may pronounce a sentence of life imprisonment. Both questions must be determined by the jury, and the jury’s answer to both questions must be embodied in its verdict. A juror considering the question of whether an accused is guilty of the crime charged can no longer be influenced consciously or unconsciously by knowledge that the finding of guilt of the 'crime charged will entail a mandatory penalty which in his opinion is not justified by the degree of moral guilt of the accused. Each juror should now know that the finding of guilt does not carry that mandatory penalty unless the jury fails to make a recommendation of life imprisonment a part of the verdict and each juror should know that he is one of the twelve judges who shall decide what the verdict shall be in all its parts. Until the twelve judges have agreed on every part of the verdict they have not agreed on any verdict.

There is no ground for the assumption that the Legislature, did not intend that the jury might accord the benefit of a recommendation of life imprisonment to an actual killer in a felony murder if, in the opinion of the jury clemency should be shown. Ordinarily where the evidence shows that the accused has actually killed another in the commission of a felony, or otherwise, the trial judge must charge the degrees of homicide, but the trial judge may not do so where the accused is an accomplice in the felony and is not otherwise a party to the homicide. (People v. Seiler, 246 N. Y. 262.) The result was that before section 1045-a of the Penal Law was enacted, there were many cases where an accused who, according to the evidence, had killed another in the commission of a felony, was nevertheless convicted of a lesser degree of homicide than murder in the first degree, and instances were not rare where accomplices in the felony were acquitted because the jury chose to let the accused go free rather than to condemn to death. If the statute is read in accordance with the construction now placed upon it by the court, far from making felony murder the most difficult crime in which to obtain a conviction, it will perform its intended function of making convictions more certain. A jury finding an accused guilty of homicide in the commission of a felony can have no more difficulty in determining whether. the verdict of guilty should or should not include a recommendation of life imprisonment than a jury finding an accused guilty of a homicide, otherwise committed, has in fixing the degree of crime.

It is said that in People v. Gati (279 N. Y. 631) the precise question presented by this case was before this court. The charge delivered by the court in that case contains instructions to the jury which if not thereafter changed would doubtless present the same questions of law presented in this case, and the correctness of those instructions was discussed in the briefs of the parties. The counsel for the defendant excepted to this part of the charge and from the colloquy which followed it appears that counsel and court were not entirely in agreement concerning the effect of what had been charged. The jury returned a short time after it had retired and reported that the jury find the defendants Gati and Sberna guilty of murder in the first degree, but are in disagreement on the matter .of recommendation of mercy.” The trial judge refused to accept that verdict and directed the jury to return to the jury room. Then this colloquy followed:

The Court: I have instructed you that your verdict could be as to either or both of these defendants guilty of murder in the first degree; or as to either or both of the defendants guilty of murder in the first degree with a recommendation for the imposition of the penalty of fife imprisonment instead of death. I gave you those instructions and it is your duty to follow them in your verdict. You can find them, or you can disagree altogether, or you can acquit both defendants, but you have no right to defy the instructions on the law given to you by the Court and to render the verdict as you did. You may retire "to the jury room until you can arrive at a verdict.
Mr. Barra: With deference to your Honor, we except to your Honor’s statement to the jury as to the law. We ask your Honor to charge the jury that if the jury are unable to agree on the question of recommendation to the Court that they must disagree.
“ The Court: On that point?
“ Mr. Barra: On all of the entire case.
“ The Court: I refuse to so instruct them and I instruct them that they may retire. I say that they may disagree in this, they may never come to a verdict because they cannot agree on that point. That is their right, but they cannot come in here and render a partial verdict on the question of a recommendation.
“ Mr. Barra: In other words, if the jury-
“ The Court: They cannot come in here and say we find the defendants guilty of murder in the first degree and some of us want to make a recommendation, because that is not the- verdict of the jury.
“ Mr. Barra: And if the jury cannot agree on the question of recommendation-
“ The Court: Then they can disagree as to the whole verdict. You may retire gentlemen.
“ Juror No. 6: There seems to be some doubt in one of the members of the jury as to your interpretation of the law relative to a recommendation.
The Court: I believe-
“ Juror No. 6: You brought it out very clearly that unless twelve members of this jury were in accord for a recommendation, the recommendation was considered out of the verdict, is that correct?
“ The Court: I cannot go into the jury-róom with you to deliberate. When the jury comes in here to say they have agreed on a verdict, they must agree on a verdict under the law. If they cannot agree on that verdict under the law they must disagree.
“'Mr. Barra: As to the entire case?
“ The Court: As to the verdict.
“ Mr. Leibowitz: As to the entire case.
'The Court: I do not want any instructions from you gentlemen. I have given the jury the law. You may retire.”

Upon the appeal no question was presented by the record whether the original charge was correct, for error there, if any, was cured by the subsequent instructions. The court did not pass upon the correctness of the original instructions which were superseded or, at least, explained by the later instructions. Points raised by briefs, not properly presented by the record, are ordinarily not' considered by the court. (Dixon v. LaGuardia, 277 N. Y. 84.) In People v. Gati (supra) the record also showed that the trial court had refused a request to charge which perhaps should have been granted, but this court agreed that the omission could not have affected the rights of the defendants. It was only because of that omission that three of the judges of this court voted to affirm under section 542 of the Code of Criminal Procedure.

The trial court has read into the statute by implication a proviso that a jury must first agree upon a verdict of guilty, which will have the effect of condemning the accused to death and then may recommend life imprisonment as part of the verdict only if all the jurors agree to recommend life imprisonment. That is not justified by the language of the statute and would in large measure defeat its plain purpose. Under that construction a jury still must face the choice of condemning the defendant to death or letting him go free unless all twelve jurors thereafter agree upon a recommendation of clemency. That construction ignores the fact that the choice whether a recommendation of life imprisonment should or should not be a part of the verdict is left to the jury, and the verdict is incomplete until all have agreed. That construction assumes that the Legislature has confided to a single juror the choice of life or death for an accused.

Since for these reasons the judgment should be reversed, we do not consider any other claims of error in the charge of the trial judge made by the appellant.

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

Finch, J.

(dissenting). We dissent and briefly state our reasons why we believe the trial judge in his charge to the jury committed no error in this case. In any event, the error, if any, should be disregarded in accordance with the command of the Legislature that where error does not materially affect the guilt of the defendant it must be disregarded. (Code Crim. Proc. § 542.) As fairly stated in the majority opinion, upon this record there can be no doubt that the jury was fully justified in finding the defendant Edward Hicks guilty of murder in the first degree * * Indeed, counsel for the defendant, in his summation to the jury, pleaded with the jury to bring in a verdict of murder in the first degree with a recommendation of life imprisonment, thereby conceding guilt.

The error urged as a reason for reversing this conviction must be viewed against the background of the facts found by the jury. For the purpose of robbery the defendant bludgeoned a storekeeper into insensibility with a part of a steel axle, and then, fearful lest, still living, the storekeeper might identify his assailant, cut his throat with a knife which had been specially sharpened for that purpose. • The majority opinion of the court concedes that the trial court properly charged the jury that they must first determine the guilt of the defendant. This is and always has been the primary inquiry of a jury in a criminal case. In arriving at a verdict of guilty the vote of the jury must be unanimous, and, in that sense, it may be said that each juror convicts the defendant. In this case, in connection with the finding of guilt, the court was careful to state: “ * * * unless you desire to change your mind on the evidence — which you are at liberty to do before you report your verdict * * *.” By this charge of the court the jurors were instructed that, although they had agreed on a verdict of guilty, if, while they were discussing the recommendation for life imprisonment, additional light was thrown on any evidence, any member of the jury could prevent a verdict by changing his vote on the question of guilt up to the moment of reporting the verdict to the court.

By its very nature the question of a recommendation of life imprisonment, since it affects punishment and not guilt, necessitates that it be considered by the jury after the question of guilt has been established. This is so not only because of the nature of the recommendation, but also because of the provisions of the Code of Criminal Procedure (§ 420) providing that the jury, in determining the question of guilt, must not consider punishment.

An analysis of the entire statute leads to the same conclusion, namely, that only after the jury has found the defendant guilty may a recommendation of mercy be considered. Section 1045 of the Penal Law provides that murder in the first degree is punishable by death, unless the jury recommends life imprisonment, as provided by section 1045-a. Thus the statute commands the jury to do just what the trial justice charged. The verdict of guilty must prevail unless the jury makes a recommendation as it may do pursuant to section 1045-a.

We come then to a consideration of the intention of the Legislature in enacting séction 1045-a of the Penal Law. That section provides: “A jury finding a person guilty of murder in the first degree, * * * may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life * * Upon its face this statute merely gives to the jury the authority to recommend life imprisonment as punishment for the crime of felony murder. The exercise of the power granted to the jury is expressly made permissive by the words of the statute. However, should the jury elect to exercise this permissive power they must do so in the only way in which a jury may act in a criminal case, i. e., by unanimity. The Legislature has so provided, since the recommendation is made as a part of the verdict. It follows that if the jury is unable to agree upon this mitigation of punishment the recommendation fails because the jury has not acted in the only way in which a jury can give itself expression. (People v. Gati, 279 N. Y. 631.)

A majority of the court would have us say that the Legislature, in granting this permissive power to the jury, meant also that unless the jury should reach an agreement in reference to this mitigation of punishment, no verdict of guilt can be had. The statute does not so provide, and it is submitted that in the absence of any language in the statute lending itself to that construction, no intention of the Legislature to that effect should be inferred. It is the function of the court to read the statute as it was written by the Legislature. The Legislature has modified the rigidity of our Penal Law by providing that a unanimous jury may, by its recommendation, save the defendant from the punishment of death, but it has not gone further and provided that a defendant guilty of murder in the first degree may avoid conviction because a single member of the jury does not concur in refusing to recommend leniency.

A majority of the court are using the words “as a part of its verdict ” to mean not only as a part of the verdict, which would be satisfied by an accompanying recommendation unanimously agreed upon, but also to include a meaning that the verdict of guilty although found by the jury cannot continue to prevail until the jury either votes a recommendation unanimously or unanimously fails so to do. An examination of this decision reveals that if the court holds that the jury must be unanimous on the question of the recommendation and can make no finding of guilt unless they also either make or unanimously reject a recommendation for mercy, then, although the jury unanimously finds a defendant guilty of murder in the first degree, no verdict may be had if one juror, although he agrees that the defendant is guilty of felony murder, insists upon voting for a recommendation for life imprisonment. The practical effect of this decision is that the jury must be discharged (Code Crim. Proc. § 428), and the defendant who has been found guilty of murder in the first degree by all twelve of the jurors goes back for a new trial or goes free if no jury can be found which will vote unanimously on both questions. Surely such a result could not have been intended by the Legislature.

A more reasonable intention of the Legislature in enacting section 1045-a of the Penal Law was pointed out by the Governor in his message to that body. In that message the Governor stated that the power to make a recommendation, if given to the jury, would make it easier to convict defendants in felony murder cases since it would permit the jury to fit its verdict to what it may consider to be the varying degrees of moral guilt of the persons involved in the same crime.” To us this indicates that it was never the legislative intent in enacting section 1045-a of the Penal Law to accord this benefit of a recommendation of life imprisonment to' the actual killer at all, but rather to permit the jury to fit its verdict to the varying degrees of participation in the crime. Moreover, if the statute is read in accordance with the construction of the majority of the court, then felony murder becomes the most difficult crime in which to obtain a conviction, because even if the defendant is found to be guilty by all twelve of the jurors no verdict can be rendered unless there is also unanimity upon the question of the punishment to be meted out to the criminal. Neither reason nor authority compels this conclusion.

In People v. Gati (279 N. Y. 631) the precise question presented by this case was before this court and was the only point urged in the brief of defendant-appellant Gati. The proper objections and exceptions had been taken. The judgment there was affirmed, three judges voting to affirm under section 542 of the Code of Criminal Procedure. Counsel in the Gati case, just as did counsel in the case at bar, made no attempt to excuse the guilt of the defendant, the defense consisting entirely of an appeal to the jury for the purpose of obtaining from them a recommendation of life imprisonment.

The judgment appealed from should be affirmed.

Loughran, Rippey and Desmond, JJ., concur with Lehman, Ch. J.; Finch, J., dissents in opinion in which Lewis and Conway, JJ., concur.

Judgment of conviction reversed, etc.


author: Conway, J.

text:
    John Regan, Appellant, v. Eight Twenty Fifth Corporation, Respondent.
    Argued June 19, 1941;
    decided December 4, 1941.

      Thomas A. McKennell, Aaron Goody, Manville H. Abram-son and Junius P. Abramson for appellant.
    The expert testimony as to custom and usage was properly received. (Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Garthe v. Ruppert, 264 N. Y. 290; Levine v. Blaine Co., 273 N. Y. 386; Miele v. Rosenblatt, 164 App. Div. 604; 221 N. Y. 567; Employers Liability Assur. Corp. v. Wagner, 215 App. Div. 566.) The issue of whether there was negligence in failing to have a stopping device on the elevator was one of fact and was properly submitted to the jury. (Munsey v. Webb, 231 U. S. 150; Carlock v. Westchester Lighting Co., 268 N. Y. 345; O’ Neill v. City of Port Jervis, 253 N. Y. 423; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Robert v. United States Shipping Board Emergency Fleet Corp., 240 N. Y. 474; Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317; Condran v. Park & Tilford, 213 N. Y. 341; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Ring v. City of Cohoes, 77 N. Y. 83; Sweet v. Perkins, 196 N. Y. 482; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310.)

      Francis J. McLoughlin, James J. McLoughlin and John J. Kirwan for respondent.
    The complaint was properly dismissed in any event, inasmuch as the defendant could not be held liable merely upon proof of the .happening'of an unforeseeable accident. (Lane v. City of Buffalo, 232 App. Div. 334; Collins v. Noss, 258 App. Div. 101; DeSalvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333; Garthe v. Ruppert, 264 N. Y. 290; Burke v. Wetherbee, 98 N. Y. 562; Dougan v. Champlain Transp. Co., 56 N. Y. 1; McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265; Lane v. City of Buffalo, 232 App. Div. 334; Larkin v. O’Neill, 119 N. Y. 221.) The expert testimony as to an alleged custom and usage of a more modern method of elevator operation was improperly received. (McKinney v. N. Y. Consolidated R. R. Co., 230 N. Y. 194; Levine v. Blaine Co., 273 N. Y. 386.)
   Conway, J.

The plaintiff was injured while using an open-platform elevator which operated between the courtyard of defendant’s premises and the basement and subbasement levels of defendant’s adjacent apartment building. He was using the elevator to bring up from the basement to the courtyard a “ dolly,” or low-setting platform on wheels, bearing three empty cans in which he had carried sand from the courtyard to an upper floor of the building where his employer was engaged in completing a plastering contract. Defendant had supplied the cans and the dolly and had directed their use for the transportation of the sand.

Plaintiff was standing on the elevator platform behind the dolly. He had started the elevator by pulling on the hand rope which set it in motion and by which, when it could be grasped, the elevator could be stopped. That hand rope was in the elevator shaft, but was not attached to the elevator. When pulled, it started or stopped electrically-operated machinery for the upward or downward movements of the elevator. The hand rope ran over a pulley or sheave which was so located in the shaft that the hand rope could not be reached by one riding on the elevator during the final four feet, eight inches, of the ascent. In other words, for that distance on an ascending trip the operator was upon an elevator which it was not possible for him to stop, no matter what was occurring thereon.

On the trip upon which the plaintiff was injured the elevator shook in its ascent; one of the cans toppled forward and was caught under the rough stone wall; the pressure caused the dolly to be pushed against plaintiff. He turned to grasp the hand rope, but the elevator had reached such a height that there was not enough of it exposed between the platform and the pulley to permit of its seizure. Plaintiff’s legs were forced over the end and side of the platform and were crushed between the elevator and the shaft walls.

Plaintiff introduced uncontradicted opinion testimony to the effect that there were two safety devices in general customary use in the community upon elevators of the type involved. One consisted of “ key switches ” which enable an operator to stop such an elevator in emergencies. The other was the installation of metal sides upon the elevator. The trial judge submitted to the jury the question whether such general custom and usage existed, whether the failure to comply with such usage and custom constituted a failure to exercise reasonable care under the circumstances here presented, and whether such failure was the direct proximate cause of the injury. By its verdict the jury resolved those questions in plaintiff’s favor. The admission of the testimony and the charge thereon was correct. (Garthe v. Ruppert, 264 N. Y. 290, 296.) It cannot be said as a matter of law that there was no evidence from which the jury could infer that the absence of a stopping device or the absence of metal sides upon the elevator was the proximate cause of the accident. It was, therefore, error to reverse the judgment upon questions of law and to dismiss the complaint.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Judgment accordingly.


author: Loughran, J. Lewis, J.

text:
    The People of the State of New York, Respondent, v. Irving Nitzberg, Appellant.
    Argued October 20, 1941;
    decided December 10, 1941.

      I. Maurice Wormser, James F. Ryan and David Cahill for appellant.
    The trial court committed reversible error in charging the jury that they could consider the testimony of Bang, the motorcycle policeman; Reardon, the patrolman; Eifler, his partner; McDermott, the police inspector; Moskowitz, the garage proprietor; Freundlich, the owner of the stolen automobile license plates; Dorothy Walker, the friend of Lepke; and of Breitman, the owner of the stolen Buick car, as bearing upon the credibility of the accomplices. (R. v. Webb, 6 C. & P. 595; R. v. Wilkes, [7 C. & P. 272; R. v. Stubbs, 1 Dears. 555; 7 Cox Cr. 48; People v. Feolo, 284 N. Y. 381.) The testimony of Bang, the motorcycle policeman; of Breitman, the owner of the stolen Buick car; of Inspector McDermott of the Police Department in Brooklyn; and of Dorothy Walker, the woman who harbored “ Lepke ” in her flat, was inadmissible. (People v. Harris, 209 N. Y. 70; Marler v. State, 68 Ala. 580; Childers v. State of Georgia, 52 Ga. 106; Commonwealth v. Bosworth, 22 Pick. 397.)

      William O’Dwyer, District Attorney (Henry J. Walsh and Julius Helf and of counsel), for respondent.
    The trial court committed no error in its charge respecting the weight of the testimony of the non-accomplice witnesses. (2 Wharton’s Criminal Evidence [11th ed.], § 730; State v. Hayes, 109 W. Va. 296; Bruton v. State, 21 Tex. 337; State v. Watson, 31 Mo. 361; Ettinger v. Commonwealth, 98 Penn. St. 338; State v. Mancy, 54 Conn. 178.)
   Loughran, J.

The defendant stands convicted of murder in. the first degree. One Shuman was the victim of the homicide. On January 10, 1939, his slain body was found in an automobile that was parked on a street in Brooklyn.

(1) Abraham Reles — a self-confessed accomplice in the crime — was the chief witness for the People. Put into direct discourse his story in substance was this: My business was murder in Brooklyn. Lepke was one of my bosses. In December, 1938, Mendy Weiss and I visited Lepke at his hideout apartment where Mendy told Lep that Pug Shuman was speaking to Inspector McDermott, giving him information against him.” Lepke said, “If he is giving information against me go out and take him.” After that, I got from the defendant — who knew the man — a promise to lure Shuman into the hallway of a building near the intersection of Eastern parkway and Buffalo avenue in Brooklyn so that we could kill him there. Later on I thought less of that plan when I recalled that a traffic policeman was usually on duty at that street intersection. I told this to the defendant and gave him another plan which was carried out on the night of January 9, 1939. The defendant at that time got Shuman to go riding with him in a stolen automobile I had supplied and shot him to death while I followed in another automobile in which the defendant and I drove away.

Reles having given this testimony, the prosecution in its direct case brought Dorothy Walker, Philip J. Bang, Herman Breitman, Michael F. McDermott, Bernard Moskowitz and Bernard Freundlich to the witness stand. Walker ■ — the housekeeper for Lepke at his so-called hideout apartment — testified that Reles and others (of whom the defendant was not one) had visited Lepke there in the latter part of 1938. Bang testified that, as a member of the police department assigned to traffic patrol on Eastern parkway throughout December, 1938, he had during that month spent some time at the corner of Eastern parkway and Buffalo avenue, because accidents frequently happened at that spot. McDermott is the police inspector to whom Reles referred in his testimony. McDermott’s evidence was that from time to time in December, 1938, he had had conversations with Shuman at police headquarters in Brooklyn and at the office of the District Attorney of the county of New York. Breitman was the owner of the automobile in which Shuman’s body was found. He testified that the vehicle had been stolen from a garage in Long Island City in September, 1938. Moskowitz was the keeper of that garage. He gave similar testimony. Freundlich testified that the license plates that were on the car in which Shuman’s body was found had been stolen in December, 1938, from another automobile owned by himself.

For convenience we shall here and there refer to Walker, Bang, McDermott, Breitman, Moskowitz and Freundlich as the non-accomplice witnesses.

After the trial judge had delivered his charge to the jury he was requested by counsel for the defendant to instruct them that the facts sworn to by the non-accomplice witnesses were “ insufficient evidence to corroborate the accomplice.” The judge responded: “ That is right, and I so charge, that those facts which you have just stated are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness as to whether or not he is telling the truth as to credibility.” Counsel for the defendant thereupon made this protest: I say that that evidence cannot tend to connect the defendant with the commission of the crime.” Again the judge rejoined: I so charge, but it does tend to show, or prove or disprove the credibility of a witness.” To these rulings, and to the refusal of the trial judge to strike out the testimony of some of the non-accomplice witnesses, counsel for the defendant took exceptions which are now pressed upon us.

Each and every of the matters sworn to by the non-accomplice witnesses was undisputed by the defendant. Not a single item of the testimony of any of them had any applicability whatsoever to his identity as a participator in this crime. So, indeed, the trial judge ruled. In that state of the case the question is whether we can sustain the further ruling that such independent testimony was none the less to be used by the jury in constructing for the accomplice witness Beles a general credibility that would perhaps amount to a sanction for his narration of the vital and controverted particulars of his story against the defendant.

Was the fact that Walker (in the defendant’s absence) saw Beles in Lepke’s apartment relevant to show that Beles was truthful in his testimony that he and the defendant planned this crime? Was the fact that Officer Bang patrolled Eastern parkway relevant to show that Beles was truthful in his testimony that he told the defendant an officer was on duty there? Was the fact that Shuman was in communication with Inspector McDermott relevant to show that Beles was truthful in his testimony that he had prevailed on the defendant to kill Shuman? Was the fact of the theft of the automobile in which Shuman’s body was found relevant to show that Beles was truthful in his testimony that he procured that stolen vehicle for the defendant? There is no element of novelty in any of these queries, save as they bring to the top of our minds one or two rules of ordinary human thought that have seldom called for explicit statement in the case law.

“ There is a principle '1 — not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence * * * — which forbids receiving anything irrelevant, not logically probative.” (Thayer, Preliminary Treatise on Evidence, pp. 264, 265.) “ It is not the law which furnishes the test of relevancy, but logic. Probative value, or capability of supporting an inference, is a matter of reasoning * * * and the rules of relevancy aim only to determine whether a given fact is of sufficient probative value to be admissible at all.” (1 Greenleaf on The Law of Evidence [Wigmore’s 16th ed.], § 14.) For the purposes of the present case it is enough in the way of a definition of relevancy to say that a fact is relevant to another fact when the existence of the one renders the existence of the other highly probable, according to the common course of events. (See Sir James Stephen, Digest of the Law of Evidence [Chase’s 2d ed.], Introduction xvni. Cf. Platner v. Platner, 78 N. Y. 90, 94.)

The fact sworn to by Walker — the presence of Beles in the Lepke apartment — was a criminal fact. On the say-so of Beles that fact initiated the killing of Shuman. The fact sworn to by Breitman, Moskowitz and Freundlich— the theft of the vehicle in which Shuman’s body was found — was on the face of it a criminal fact. On his own say-so, too, Heles was closely tied to that fact. Now it was precisely because he was attainted in that way that Heles as a witness stood in need of support from a purer source to show that he was not doing a bad turn by putting the defendant in his place in the disputed accusatory parts of his story. In other words, Heles’ self-confessed connection with those criminal facts put him outside the limit of the presumption that witnesses ordinarily are honest up to their fights. In the face of all this the trial judge, nevertheless, told the jury in respect of Heles that the independent evidence of those very criminal facts does tend to show, or prove or disprove the credibility of a witness.”

We think it unnecessary to probe this idea that a strong implication of the non-credibility of a witness may be rebutted by independent evidence which confirms him in his confession of the very criminality which gives rise to that implication. Whatever its merits, such a process, we believe, is not fit for the trial of issues on which fife and liberty depend. To our minds it appears safe enough to say at once that the testimony of Walker, Breitman, Moskowitz and Freundfich did not indicate with any fair degree of probability that Heles might here be taken in the fight of common experience to have been over all a truthful witness. We do not mean, however, that their testimony was not receivable as evidence of a part of the principal occurrence in issue. (Cf. People v. Sherman, 103 N. Y. 513.)

The testimony of Officer Bang has a somewhat different aspect. The location of his post of duty was a fact that had no necessary connection with Heles. Indeed, it was a fact that was known to everybody. But if an accomplice-witness could be supported at large by independent evidence that he told the truth in matters of that sort, then every accomplice (not incompetent for want of understanding) could always rake into his story materials for such confirmation of it. (See Commonwealth v. Bosworth, 22 Pick. [Mass.] 397, 399.) It has been a long time since an accomplice witness has been suffered so to lift himself by his own boot-straps. (Cf. People v. Katz, 209 N. Y. 311, 342.) We are not persuaded that the location of the post of Officer Bang on Eastern parkway made it highly probable in point of reason that Beles was truthful in his testimony that he told the defendant an officer was usually on duty there.

So with the testimony of Inspector McDermott that Shuman (the victim of this crime) had been in communication with him. We will make the good-sized assumption that this testimony was well enough as evidence that Beles had reported the same fact to Lepke. This report of Beles (as he said) had been made in a secret conference among him, Lepke and Weiss when they were privately assembled for the sake of their common protection from interference by the police. To us it seems that the results of ordinary human experience do not countenance the notion that the testimony of Inspector McDermott was proximately probative of the fact that the truth was in Beles once more when (after his arrest and with the promise that the District Attorney “ would speak to the court for me ”) he testified that the major part in the commission of this crime had been taken over by this defendant.

In a word, all the testimony of the non-accomplice witnesses was, in our judgment, inadmissible as evidence of the credibility of the accomplice witness Beles, because it was of merely slight, remote or conjectural significance in respect of that issue — to say nothing for the moment of the fact that such a use of that testimony inevitably tended unnecessarily to confuse the real issues and unfairly to surprise the defendant to his prejudice. (See People v. Harris, 209 N. Y. 70.) !

Perhaps it should be added at this point that there was in this case no question of restoring the credit of Beles after his impeachment as a witness. The facts that discredited him came out on his direct examination and, as we have noticed, the non-accomplice witnesses were called by the prosecution in its direct case. (See People v. Edwards, 282 N. Y. 413.)

(2) We pass to the authorities that have been invoked for a different opinion. There is no occasion now to inquire as to the scope of Mr. Bishop’s commentary that “ The jury may consider evidence tending to show the probable credibility of the accomplice’s narrative, though coming short of the required confirmation.” (2 Bishop, New Criminal Procedure [2d ed.], p. 998.) For Mr. Bishop did not say that the probable credibility of an accomplice witness can be made out by independent evidence having no connection with the guilt of the defendant nor any tendency even to associate him with the accomplice; and the leading case of Commonwealth v. Bosworth (supra), cited by Mr. Bishop, has been held by the court that decided it to be authority to the contrary. (Commonwealth v. Holmes, 127 Mass. 424.) In the Holmes case the indictment was for burning a barn. The accomplice witness testified that before the offense was committed the defendant gave him certain bank bills for his aid in its commission. The Commonwealth was then allowed to introduce independent evidence that on the day before the fire the witness had in his possession bank bills corresponding in number and amount with those he said he received from the defendant. Exceptions of the defendant to the admissibility of this evidence were sustained on the ground that the evidence did not have “ the slightest tendency to prove any facts connecting the defendant with the crime charged, or any participation of the defendant with the accomplice at any stage of the transaction ” (p. 445). (So, People v. Haynes, 55 Barb. 450. See 1 Am. & Eng. Ency. of Law [2d ed.], p. 403, and the cases there collected.)

In his dissenting opinion, Judge Lewis brings in People v. Reddy (261 N. Y. 479). The Reddy case recognized the obvious possibility that transactions which occur on the scene of a crime at the time of its commission may sometimes be at least theoretically relevant to the credibility of an accomplice witness; though the actual decision made by the Reddy case on that point was that the argumentation there made on that basis led to no more than a mere conjecture that the accomplice had a motive for being truthful in his testimony. Since in the Reddy case the People made no attempt at any stage to truss the credibility of their accomplice witness by independent evidence of collateral facts, we are unable to see what bearing that case has on the questions now before us.

Linsday v. People (63 N. Y. 143), it will be observed, is a case that was decided at a day when the law of this state was that a conviction could be had on the sole credit of an accomplice. (See People v. Mahew, 150 N. Y. 346, 353.)

The Linsday case (p. 158) gave us a quotation from the celebrated essay on the Evidence of Accomplices written in 1844 by Chief Baron Joy, whose view — that it does not matter how an accomplice witness is shown to be trustworthy— has the indorsement of Mr. Wigmore. Still, as Mr. Wigmore says: “ In England, this view obtained at first, that no specific corroboration need be furnished as to the accused’s identity. But the opposite opinion began to be taken at Nisi Prius some twenty years later, and finally prevailed. In the United States, * * * when by statute the cautionary practice [to warn the jury not to respect an accomplice’s uncorroborated story] was in many juridictions created into a rule of law, this definition of the scope of corroborative evidence was expressly retained.” (7 Wig-more on Evidence [3d ed.], § 2059. See the cases in this court there cited.) The rule of law so referred to is this: “ In a criminal charge, an accomplice’s testimony alone, uncorroborated by other evidence, is not sufficient. The corroborative evidence must apply to the accused’s identity as a participator.” (Wigmore’s Code of Evidence, §§ 1973, 1974.)

(3) Our statute adopted that rule of law in these words: A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” (Code Crim. Proc. § 399.) Accordingly, it has long been the settled law of this state that the-corroborative evidence so required must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in its commission. (People v. Hooghkerk, 96 N. Y. 149; People v. Kress, 284 N. Y. 452. So, Rex v. Baskerville, [1916] 2 K. B. 658.) The People now aslc us to amend the statute so that it will read as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime; —but the credibility of the accomplice may be established by evidence that has no tendency to connect the defendant with the commission of the crime and by evidence having no necessary connection with either the defendant or the accomplice.”

We have no power so to reopen the way to the very danger to a fair trial against which the Legislature enacted the statute. Nor have we the wish to make the conception here pronounced by the trial judge a basis on which any citizen of the state, however innocent, could be tried for his life or liberty. (See People v. Walker, 198 N. Y. 329, 335.) Nor do we believe that conception to be any the more acceptable because as one of its consequences a guilty accused would be entitled to confirm an interested witness for his defense by dint of the same rambling and outside process that was here resorted to in the endeavor to under-prop the intrinsically dubious oath of Beles.

The foregoing considerations cannot be disposed of simply by saying that a trial judge may limit the scope of theoretically relevant evidence of credibility not amounting to corroboration. There is no rule and no principle which forbids delay, tediousness, and complication, pure and simple, and always; what is forbidden is unnecessary complication, delay and tediousness * * *. When the nature of the issue requires it, enormous dangers of this sort have to be run.” (Thayer, Preliminary Treatise on Evidence, 517, 518.) If, then, in a case like this, remote evidence of credibility not amounting to corroboration were deemed to be necessarily admissible, we would find it not a little hard to see what bounds could be put on it. The higher the depravity of the accomplice the more would be the need of a cloud of witnesses to that end.

Correspondingly, however, the more the volume of such evidence the greater would be the undue prejudice to the defendant, who would hardly be able to anticipate what matters having no connection with him he would so be called upon to meet. See how in the present case Walker’s evidence by its very nature tended to deprive the defendant of any actual chance to disprove it. Her testimony — that in the defendant’s absence Heles was with Lepke at the so-called hideout apartment- — -presumably could have been denied by no one but Lepke or their confederate Weiss, the only others there at the time. Notice, too, that the primary fact sought to be evidenced by the testimony of Officer Bang was a change in the mind of Heles himself. Taken as evidence of his general credibility, the testimony of Walker and Bang was freighted with unfair surprise. We reject the supposition that the prosecution’s burden of proof should have thus been artificially leavened merely because the evidence against the defendant came from sources that were polluted.

On the whole, without further detail, and without deciding that an accomplice witness may not be confirmed by evidence of, his probable credibility not amounting to corroboration, our conclusion is that the foregoing ruling of the trial judge cannot be sustained.

(4) We come now to an often burdensome question. May the error be regarded as technical and insufficient to require a reversal? (See People v. Marendi, 213 N. Y. 600, 618, 620.) This defendant took the stand. His guilt is far from being clearly exhibited by the record. Of the three witnesses for the People who gave evidence sufficient to satisfy the statutory requirement of corroboration' of Heles two had been prisoners in a jail where the defendant had been confined. Their testimony was that the defendant admitted his guilt to them or in their hearing to persons who visited him there. The third of these witnesses was a thrice-convicted criminal,

In that state of the record we cannot say that the inadmissible use made of the testimony of the non-accomplice witnesses did not affect the result. It is quite manifest that their testimony was adduced in the apprehension that without such use thereof it was not unlikely that the verdict would be not guilty.

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

Lewis, J.

(dissenting). I dissent from the decision about to be made which rests upon the conclusion that the defendant’s rights were prejudiced by the admission of evidence adduced from certain non-accomplice witnesses and received in support of the credibility of three accomplices.

No one doubts the wisdom of the statute (Code Crim. Proc. § 389) which casts upon the prosecution in a criminal trial the burden of proving the guilt of an accused beyond a reasonable doubt. We know, however, that burden to be immeasurably increased when, as in the present case, the state’s proof of the defendant’s guilt comes from the lips of accomplices who blatantly admit before a jury their complicity in organized crime. Truth does not come naturally from sources so polluted. Credence may, however, be induced by corroborating facts.

In this case the question upon which the court divides is whether, in his effort to dispel reasonable doubt as to the defendant’s guilt, the District Attorney was rightly permitted to support the credibility of three accomplices by evidence from certain non-accomplice witnesses. Their testimony is now challenged because, it is said, it was of slight, remote or conjectural significance in respect of the general credibility of the accomplices; that it had an inherent and inevitable tendency unnecessarily to complicate the case and unfairly to surprise the defendant. In my opinion the challenge is without merit in any of the particulars mentioned.

The point in controversy requires a statement of only those portions of the evidence which relate themselves to the challenged testimony of the non-accomplice witnesses.

Albert Shuman met his death during the night of January 9, 1939. At an early hour of the following morning his lifeless body was found in a slumped position on the front seat of a black Buick sedan which bore 1938 New York license plates No. 9K 1131 and was parked on East Ninety-fifth street in the borough of Brooklyn. The discovery was made by Police Officers Reardon and Eifler, whose testimony, with that of other non-accomplice witnesses, is presently to be considered. Two bullet holes — wounds of entrance — were in the back of the victim’s neck, around each of which was a well-defined powder mark which, according to the undisputed expert testimony, had been produced by a gun held at a distance of only three inches. For this homicide the defendant has been convicted of first degree murder.

Among witnesses called by the prosecution were three accomplices — Abraham Reles, Albert Tannenbaum and Seymour Magoon. It is a mild statement of facts made clear by the record to say that Reles is a hardened criminal and that the records of Tannenbaum and Magoon in crime had not escaped reproach by the law. In other words, their admissions of participation in prior crimes was a warning to the jury that caution should be used in valuing their testimony. (People v. Cohen, 223 N. Y. 406, 422.) It is from testimony by these three accomplices that the District Attorney brought out the sordid details of a carefully laid plan which had for its sole object the death of Albert Shuman.

It should be said at this point that upon this appeal the defendant does not assert a failure by the prosecution to corroborate the three accomplices Reles, Tannenbaum and Magoon, by other independent evidence required by section 399 of the Code of Criminal Procedure — evidence which tends to connect the defendant with the commission of the crime.” The defendant does contend, however, and this court is about to hold that the trial court erroneously permitted facts prejudicial to his rights to be brought into the record by the testimony of non-accomplice witnesses as to which the court ruled* * * those facts * * * are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness [an accomplice] as to whether or not he is telling the truth * *

From testimony adduced by the District Attorney from the three accomplices it appears that some time in the late months of 1938 the decedent Shuman had been seen coming from police headquarters in Brooklyn where, it was said, he had been giving information to Inspector McDermott concerning Louie Lepke Buchalter, allegedly a notorious underworld character, commonly known as Lepke,” who was then “ hiding out ” in an apartment on Foster avenue in Brooklyn. When Heles learned that Shuman had conferred with Inspector McDermott he visited Lepke at the latter’s1 apartment and told him of that fact. On that occasion and on subsequent visits by Reles to Lepke’s “ hide-out ” there was pres» fit in the apartment the People’s witness Dorothy Walker, When Lepke was told of Shuman’s conduct he said to Reles: “ If he [Shuman] is giving information against me, go out and take him.” Thereupon a plan to kill Shuman quickly took form. It involved A ruse in which defendant Nitzberg was assigned an important role and by means of which the victim was to be lured into the entrance hallway of an apartment house on Lincoln Place between Rochester and Buffalo avenues in the borough of Brooklyn, where he would be shot. That plan was changed, however, when Reles reported to his fellow conspirators that “ The spot which we picked out is no good, because right around the comer there is a motor-cycle cop at all times, and after they kill Shuman in the hallway they are liable to walk right into the cop’s arms.” This suggestion caused the abandonment of the original choice of the place where the planned murder would be committed and the adoption of a new proposal by Reles that Shuman should be lured into an automobile in which he would be driven through Buffalo avenue, Eastern parkway and Rockaway avenue to a point .beyond Bethel Hospital where Shuman would be shot while he was seated in the car.

The plan thus changed was carried through with smooth precision on the night of January 9, 1939. Upon the pretext that they were taking him to an apartment where he was to participate with them in a robbery, the defendant and another enticed Shuman into a black Buick sedan which, according to testimony by Heles and Magoon, was a stolen car previously secured by them and turned over to the defendant to be used in carrying out the plan. The victim met his death while he was seated on the front seat of the black sedan to the right of Tannenbaum who had been assigned to drive the car. The shooting had been assigned to, and was carried out by the defendant Nitzberg, who was seated alone in the rear of the car behind his victim’s back.

From this abbreviated recital of testimony given to the jury by the three accomplices I pass to a consideration of testimony by the non-accomplice witnesses. Police Inspector McDermott, who, according to the accomplice Heles, was visited by Shuman in the late months of 1938, testified that in the fall of 1938, while he was in command of the detective force in the borough of Brooklyn, Shuman carpe to his office on three occasions. Dorothy Walker, who, according to Heles, was present in the Lepke “ hide-out ” when he called there and advised Lepke that Shuman had been calling upon Inspector McDermott, testified that she was present in the Lepke apartment on that occasion and on later days when Heles called. Police, Officers Reardon and Eifler testified that in the early morning of January 10, 1939, they discovered, on East Ninety-fifth street in Brooklyn, the body of Albert Shuman in a black Buick sedan bearing New York license number 9K 1131. They described in detail the car, the position of the body, the wounds and powder marks. Moskovoits, the keeper of the public garage in which had been stored by the state’s witness Breitman the black Buick sedan in which the body of the deceased was found, testified that the car was stolen from his garage on the night of September 8, 1938. Breitman, the owner of the black Buick sedan, testified that when the car was stolen from the Moskowitz garage on September 8, 1938, it bore his own New York license plates No. 10P 92. Freundlich testified that New York 1938 license plates No. 9K 1131 (the license plates found on the black Buick sedan when it was discovered by Officers Reardon and Eifler on the morning of January 10, 1939) were stolen from his Chevrolet automobile on the night of December 7, 1938, while it was parked in front of his Brooklyn residence. Bang, a motorcycle policeman, testified that during the month of January, 1939, he was on patrol duty at the intersection of Eastern parkway and Buffalo avenue near the site where (according to Reles) it -was first planned to commit the murder. It will be remembered that Reles testified that it was he who advised a change in the proposed site for the killing “ * * * because right around the corner there is a motor-cycle cop at all times * *

I find nothing in the testimony of these non-accomplice witnesses which prejudiced the rights of the defendant. Although the testimony had reference to minor details in the succession of events related by Reles and the other two accomplices, it served in each instance to confirm and .give credence to their narrative the source of which, when uncorroborated, did not inspire belief in its truthfulness. (2 Bishop, New Criminal Procedure [2d ed.], p. 998; 7 Wig-more on Evidence [3d ed.], § 2059.) The material matters upon which the credibility of an accomplice may be supported are not “ as to the place of his birth, his age, his residence, but the detail of the crime and matters connected with it.” (Emphasis supplied.) (Linsday v. People, 63 N. Y. 143, 158.) Of the testimony by the non-accomplice witnesses it may be said here as this court ruled in People v. Reddy (261 N. Y. 479, at p. 486), “All that it does and all that can be claimed for it, is to give support to some of the facts — and those not the most essential — testified to by [the accomplice] * * * on the basis of which the truth of [the accomplice’s] accusation against the defendant might be conjectured. * * * While this testimony was relevant and was corroborative of certain circumstances relating to the crime, it had no tendency, as we think, to connect the defendant with its commission.” (Emphasis supplied.) That was precisely the basis of the ruling of the trial judge in the present case, “ I * * * charge, that those facts [to which the non-accomplice witnesses mentioned above had testified] which you have just stated are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness as to whether or not he is telling the truth * * *.”

From earliest times there has been a natural distrust of the testimony of an accomplice. Prior to the enactment of section 399 of the Code of Criminal Procedure (L. 1881, ch, 442, as amd. L. 1882, ch. 360) a conviction could be had upon the uncorroborated testimony of an accomplice alone. (People v. Everhardt, 104 N. Y. 591, 594; People v. Mayhew, 150 N. Y. 346, 353.) But the trial court, as a rule of practice and not of law, was accustomed to warn the jury that a' conviction on uncorroborated testimony of the accomplice would not be justified. (People v. Dixon, 231 N. Y. 111, 116, and see 7 Wigmore on Evidence [3d ed.], § 2056.) The kind of evidence held to be sufficient as corroboration was merely such evidence as tended to establish the credibility of the accomplice on some material point in his narrative. (Linsday v. People, supra, pp. 157-159.)

The enactment of section 399 of the Code of Criminal Procedure established no exclusive test for the admissibility of corroborative evidence. Such evidence as was formerly admissible might still be received, but it was no longer sufficient. (Cf. People v. Goldstein, 285 N. Y. 376, 382.) Under the new section there may be no conviction upon the testimony of the accomplice, corroborated merely for the purpose of proving credibility, in the absence of corroborative independent evidence tending to connect the defendant with the commission of the crime. In effect we are now asked by the appellant to rule that the enactment of section 399 of the Code of Criminal Procedure established not only an exclusive rule for the admission of evidence to corroborate the testimony of an accomplice, but also served to render useless and confusing to a jury that type of evidence which for over a hundred years was accepted by courts throughout this country and in England as sufficient to corroborate an accomplice and justify a conviction. (See 7 Wigmore on Evidence [3d ed.], § 2059.)

To say, as do a majority of the court, that the testimony given by the non-accomplice witnesses was “ of merely slight, remote or conjectural significance ” in respect of the general credibility of the accomplices, is not, as I view it, a correct appraisal of its value. More appropriate, I think, is the statement by Chief Baron Joy in his Evidence of Accomplices, The correct and accurate manner in which an accomplice details the circumstances of the transactions shows that he was cool and collected, that he possessed observation, that his recollection is fresh, and that he was an observer, not an inventor of facts and incidents; and if we find that in every point in which the evidence of other witnesses can be brought into contact with his, they fit into one another and correspond exactly, it is good ground for presuming that his entire narrative is correct.” (The Law Library [Wharton], 3d Series, vol. 45, appendix, p. 10.)

Nor does the testimony of the non-accomplice witnesses inevitably ” tend unnecessarily to confuse the real issues and unfairly to surprise the defendant to his prejudice.” I find nothing in the record of the trial — which lasted ten days, during which sixteen witnesses were called by the defendant ■ — which gives the slightest indication that at any time the defendant was prejudiced by surprise; nor is there any indication of confusion as to the real issues. There were no errors of major importance and none which adversely affected the substantial rights of the defendant. The defendant stands convicted of one of the most atrocious crimes ever planned and consummated by organized crime in this state. In my opinion the decision about to be made — which casts aside the jury’s finding of the defendant’s guilt, upon the ground that his rights were prejudiced by the admission of the evidence considered above — fails to give heed to the mandate of the Legislature that After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” (Code Crim. Proc. § 542.)

Lehman, Ch. J., Rippey and Desmond, JJ., concur with Lotjghran, J.; Lewis, J., dissents in opinion in which Finch and Conway, JJ., concur.

Judgment of conviction reversed, etc. (See 287 N. Y. 754.)


text:
    The People of the State of New York, Respondent, v. Thomas Conroy, Appellant.
    Argued October 15, 1941;
    decided December 10, 1941.

      Leo H. Klugherz, Albert Vitale, Luke J. Le Rolle and M. Arthur Hammer for appellant.
    The trial court erred in failing to charge as requested on the question of circumstantial evidence. (Rice v. Detroit Fire & Marine Ins. Co., 176 S. W. Rep. 1113; People v. O’Neil, 48 Hun, 36; 109 N. Y. 251.)

      Samuel J. Foley, District Attorney (George Tilzer, Sylvester Ryan, Herman J. Fliederblum and Francis X. O’Brien of counsel), for respondent.
    The trial court properly refused to charge defendant’s request dealing with circumstantial evidence. (People v. Bonifacio, 190 N. Y. 150; McKinney v. State, 88 S. W. Rep. 1012; Thompson v. State, 26 S. W. Rep. 198; Johnson v. State, 162 S. W. Rep. 512; Sullinger v. State, 182 S. W. Rep. 1140; People v. Branch, 193 N. Y. 46; People v. Deacons, 109 N. Y. 374; People v. Jaehne, 103 N. Y. 182.)
   Per Curiam.

In his charge the trial judge said to the jury: Pull,. direct and positive evidence of the corpus delicti, that is, death as the result of the criminal agency of another as the means independent of the confession is not required. It is sufficient to warrant a conviction if corroborating circumstances are shown which, when considered in connection with the confession are sufficient to establish the defendant’s guilt in the minds of the jury beyond a reasonable doubt.”

This was a correct statement of the applicable doctrine. (People v. Jaehne, 103 N. Y. 182, 199, 200.) At the request of the defendant’s counsel, the trial judge supplemented his •charge as follows: “ I have been requested to charge and do charge that where the People attempt to prove a fact or facts by circumstantial evidence, these circumstances must themselves be established by direct proof and not left to rest upon inferences or other circumstances. I have been requested to charge and do charge that where the People seek to prove a fact by circumstantial evidence, such fact must clearly and necessarily flow from the circumstances alleged.”

In refusing further to instruct the jury as to the rules which regulate appraisal of the probative value of circumstantial evidence, the judge remarked that “ this is not a circumstantial evidence case.” Of this inadvertent misstatement the defendant now predicates error.

Talcing the charge as a whole we cannot believe that the jury were misled by the phrase last quoted.

The judgment of conviction should be affirmed.

Lehman, Ch. J. Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment of conviction affirmed.