author: VAN BRUNT, P. J.

text:
    Kate Lawler, as Administratrix, etc., Resp’t, v. Thomas H. French, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Animal—Vicious—Notice.
    Where, in an action for the death of plaintiff’s intestate, caused hy b kick from a horse used by defendant on his theatrical stage, the horse was apparently of a quiet disposition, unless goaded into action by the acts of those around him and then vicious only against those who had been amusing themselves at his expense, it shows no such disposition as will call upon the manager of the theater to assume that he was vicious.
    2. Same. ‘ ■
    In such case, evidence that the horse at one time pressed a person against another horse as such person went to the manger, and that it, several’ months before the accident, when teased by those around him, snapped at. them, and that on another occasion had kicked another man, is insufficient' to prove that the manager had knowledge that the horse was vicious so as-to render the owner liable.
    3. Same.
    If a person keeps an animal upon his place and fails to exercise ordinary, supervision overit, and lets it run and fails to obtain the knowledge which, ordinary supervision over it would give, he is chargeable with the same knowledge that he would have obtained had he inquired and supervised the ordinary and usual way. _
    Appeal from a judgment in favor of plaintiff, entered after the-overruling of exceptions, ordered to be heard at first instance at general term, and from .an order denying a motion for a new trial on the ground that the verdict was excessive, and otherwise contrary to the law and evidence.
    D. B. Ogden, for app’lt; T. D. Semple, for resp’t.
   VAN BRUNT, P. J.

This action was brought to recover damages for injuries which the plaintiff’s intestate is alleged to have sustained by reason of the kick of a horse upon the stage of the American Theater in the city of New York, on the 11th of October, 1893, of which theater the defendant was' the manager. Upon the trial of this action a verdict was rendered for the-plaintiff, upon the coming in of which the defendant moved for a new trial, which was denied. The exceptions in the case were ordered to be heard in the first instance at the general term. These exceptions were overruled, and a judgment entered upon, the 'verdict for the plaintiff. Thereafter an order was made upon, the motion for new trial, and. from such judgment and order this appeal is taken.

Whatever might have been our judgment upon some of the exceptions which are contained in the record, they are not before us for consideration, the same having been considered upon the motion for new trial upon the exceptions directed to be heard in the first instance at the general term. The only question presented upon the appeal from this order is, was the verdict against, the evidence ? The claim upon the part of the plaintiff necessarily was that the horse which was employed upon the stage of the theater by the defendant was vicious, and was either known, to the defendant to be vicious, or from the facts established upon the trial he should have known it. The evidence consists of the testimony of some persons who were employed upon the stage of the theater in question.

One Toner testified that on the 2d of October, 1893, he was on-the right-hand side of the stage, and went to go to his mangerr from which to take a blanket fora horse by the name of Bohemia^ that this black cob horse (the horse in question) was right alongside of him, and he was between both horses, when he let drop-the blanket, and the cob horse pushed over him, and he was crushed between both horses, and was afterwards taken to the-hospital. The witness further stated that he could not tell what occurred that made the horse back or sidle up against him, because he could not see anybody passing on the opposite side, and he could not tell how he came to back up against him. The witness further testified that he saw the horse at the theater, and that his movements at times were lively ; but he utterly fails to-mention any viciousness whatever that he had observed upon the part of the horse.

The next witness was one Shevlin, who testified that he was valet for three of the leading gentlemen of the theater ; that he-saw the horse kick the deceased. He says:

“This man was putting up this screw-eye to hold that railing from coming down. These two horses came across, started to turn around, and this man was at his post at the time, and the horse let out with his foot, and kicked him right in the ribs. The man fell in a lump, and was carried right to the left of the-stage.”

He further testified in regard to the horse:

“ I had seen that black cob horse there often. I had seen him snap and bite at people passing by. That was before the accident ; ever since the horse came in the theater. I saw him make-several attempts to bite people passing by at the time the Prodigal Daughter was going on. He was there all that piece. He was there, I think, three months before the accident. During those three months I saw him snap and bite at people two or three times about a month and a half or two months or so before the accident.”

The testimony of this witness evidently is solely to the effect, that a month or so before the accident he had seen the horse two or three times snap or bite at people. But it does not appear that the horse was guilty of any other misconduct, so far as the witness saw, and he testified that he had seen him there often.

The next witness was a man named Knapp, who testified that he had been kicked by this horse in the latter part of September,. 1893, and that on one occasion the horse bit him. Upon cross-examination he states that he was employed in Rogers’ livery stable, at which place the horse in question was kept; that there were nine horses on the stage of an evening, two of them being race horses, and the others just hired horses, and all belonging to Rogers; and that he was employed in this way three months, until the piece was off. He says :

“ I got my foot hurt ten days before he made a bite at me. When the horse kicked me, I was back there and, some of them bad a stick there, and once or twice they hit this black horse, and made him vicious, and no one could get around him, and no one would go about back of him or in front of him because from jamming between them. I was walking along there on that side, and he came up with his foot, and kicked me there. He was there a few days, and he commenced to get vicious; people teasing him. When he kicked me there was nobody there. I guess-he had been teased. The boys took sticks,—a few jockeys used1 always to have a stick, — and coming along there tickled him. Toner [the witness above mentioned] used to tickle them once in a while. He came along, and was in the habit of tickling the horse. Punching them with a stick, that would make them kick.”

This evidence is far from showing that the horse was vicious, but, on the contrary, that he was goaded into the action which is alleged against his good temper.

One McGHory, a witness called on behalf of the defendant, testified that he had seen attendants and supernumeraries around the stage strike the horse, previous to that' night, at different times. Further evidence was given in regard to the disposition of the horse by those that had known him, and that he was not known So be vicious before hg entered upon this employment.

It is apparent from this evidence that the horse was not vicious, but that whatever nervousness he displayed was the result of the teasing to which he had been subjected to by the people engaged around him. Under such circumstances, the horse being apparently of a quiet disposition, goaded into the action described by the acts of those around him and this manifesting itself only occasionally, and it would seem, against those who had been amusing themselves at his expense, he certainly showed no such disposition as would call upon the manager of the theater to assume that he was vicious.

We have examined the large number of authorities which have been cited upon the part of the plaintiff, but we find no case that would sustain a verdict upon evidence snch as is contained in the record in the case at bar. The case most favorable to the plaintiff as being one upon which a verdict was sustained upon the light, -est evidence, seems to be'that of Turner v. Craighead, 63 St. Rep. 853; 31 N. Y. Supp. 369, decided by the general term in the Second department, in which it was held that where a person keeping an animal upon his place omits to exercise ordinary supervision over it, lets it run, and fails to obtain the' knowledge which such supervision would give, he is chargeable with the same knowledge that he would have obtained had he acquired and supervised in the ordinary and usual way. That action was brought to recover damages resulting from being bitten by a dog. The evidence was that the dog had bitten persons on two occasions prior to the attack made upon the plaintiff, and that it was his habit, as also that of two other dogs owned by the defendant, to rush out at persons passing upon the highway, and bark at them ; that when any person passed along the highway the three dogs would all rush out after him; and that the dog in question was ugly, and would jump at horses’ heads, and try to catch them by the snout. There was no evidence to show that the defendant ■knew of these occurrences, and the court submitted it to the jury to determine whether the defendant ought to have known that the dog was savage, and likely to bite, charging them that if a person keeps an animal upon his place, and fails to exercise ordinary supervision over it, and lets it run, and fails to obtain the knowledge which ordinary supervision over it would give, he is chargeable with the same knowledge he would have obtained had he inquired and supervised in the ordinary and usual way. This rule ing the court held to be correct. But the evidence in that case was different from that which is contained in the record in the present case. There the vicious disposition was established by evidence and its long continuance, in regard to some of which at least the owner must have had knowledge. Our attention is also ctiled to the case of Hahnke v. Friederich, 140 N. Y. 224; 55 St. Rep. 411. That was also a case to recover for damages sustained from the bite of a dog. The testimony in that case showed that the defendant procured and kept the dog to guard his barn and the property therein, and that he considered it necessary to chain and muzzle him. The purpose for which he was kept, and the manner in which the owner was accustomed to restrain him, were circumstances which, with the other testimony in the case, authorized an inference by the jury of knowledge by the defendant of the vicious propensities of the animal. In the case of Muller v. McKesson, 73 N. Y. 195, which was another dog case, the rule was laid down that in an action against the owner of a ferocious dog or other animal, for injuries inflicted by it# the gravamen of the action is the keeping of the animal with knowledge of its propensities; and as to the latter, proof that the animal 18 of a savage and ferocious nature is equivalent to express notice. So, in the other cases cited by the respondent, the same fule is laid down.

We have searched the record in this case in vain to find that there were any facts which called upon the defendant know that the horse in question was of a vicious disposition. Indeed, there is no is evidence that he was of á vicious disposition. Whatever temper he displayed seems, from the record, to have arisen from the fact that he was teased and struck and • punched with sticks-by those who were surrounding him. We are referred to no authority which under such circumstances, implies notice of viciousness upon the part of the owner or user of any domestic animal. We think that there is no evidence tending to show that the defendant had any knowledge or reason to believe that the horse was vicious, or that the horse was in fact vicious. The defendant at once, when informed of the fact of his kicking the deceased, removed from the theater.

The order denying the motion for new trial should be reversed, and the judgment set aside, and a new trial ordered, with costs to the appellant to abide the event

INGRAHAM and PATTERSON, JJ., concur.

WILLIAMS and O’BRIEN, JJ.—We dissent on the ground that there was evidence sufficient to present the case to the jury as one of fact as to whether or not the horse was vicious, and as to whether the defendant had notice, thereof before the accident happened.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    George H. McPherren, Resp’t, v. Charles M. Homan et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Pleading—Complaint—Replevin.
    Where the complaint alleges that flour was stolen and that the plaintiff was the owner and entitled to the possession of the flour, and that he had demanded possession thereof from the defendants who had refused to deliver it to him, it is a sufficient pleading under which to permit the submission of the caseto the jury upon the question of a fraudulent purchase and the bona fldes of the purchase, especially as the defendants in no way specifically objected that the pleading was not sufficient to permit such submission.
    8. Sale—Bona pides. 1
    Where it appears that the defendant has paid full value for goods bought, that he had no knowledge of the vendor’s fraudulent possession, that the vendor gave a reputable business firm as his reference, which stated that the transaction was all right, the facts are not sufficient to authorize a finding by the jury of bad faith on the part of the defendant in making the purchase.
    Appeal from a judgment in favor of plaintiff, and from an order-denying a motion for new trial upon the minutes.
    The action was brought to recover chattels, commonly known as the “ action of replevin.” The complaint alleged that on or about October 1, 1890, the plaintiff was the owner of, and possessed of 210 140-pound sacks of flour, of the value of $847.50; that, thereafter the flour was stolen from the plaintiff, and taken from his possession without his consent, by some persons to the plaintiff unknown, and that thereafter the flour came into the posses* si on of the defendants, and was wrongfully detained by them; and that the ground of such detention was that the defendants claimed to have purchased it from some persons to the plantiff unknown. The complaint further alleged that the plaintiff was the owner of the flour, and entitled to the immediate possession thereof, and that the flour and the possession thereof were, before the commencement of the action, duly demanded by plaintiff of the defendant, who refused to deliver the same. The answer contained a general denial of the allegations in the complaint, and alleged that the flour, at the time of the commencement of the action, was the property of the defendant. Upon the trial the plaintiff gave evidence tending to show that he was the owner and in possession of the flour on and prior to October 3, 1890, and on that day shipped the same from Dakota, where he did business, to Robert A. Galt, in Hew York city; that, Galt not being in a position to handle the flour, the plaintiff changed the consignment to his own order, and then made arrangements by correspondence with one D. B. Smith, who claimed to be located at 101 West Forty-second street, Hew York City, to sell him the flour at $5.65 per barrel, and that these arrangements were entirely by correspondence; that the flour was delivered to some one in Hew York City, and the plaintiff drew a draft for the purchase price of the flour upon D. B. Smith, but this draft was never paid; that the plaintiff name to Hew York City, and learned that no such person as D. B. Smith had ever done business at 101 West Forty-second street, but found the larger portion of the flour in the possession of the defendants; that, in a conversation between plaintiff and defendants, the defendants claimed to have purchased the flour of a stranger, in good faith, and to have paid the full value therefor— §697.50; that they refused to surrender possession of the flour to the plaintiff, on demand thereof being made; and that thereupon this action was brought. At the close of the plaintiff’s evidence the defendants moved for a dismissal of the complaint on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action, or that the flour had been stolen from him. The court held that the defendants could not retain the; flour unless they showed they were bona fide purchasers, and thereupon denied the motion, and defendants excepted. The defendants then gave evidence tending to show that they were bona fide purchasers of the flour, and gave its full value therefor—■ $697.50. At the close of the evidence the defendants renewed their motion to dismiss the complaint upon the same ground. The court held there was no evidence of the property having been stolen from the plaintiff, but denied the motion; holding that the questions for the jury were whether there was a fraudulent purchase of the flour by Smith from the plaintiff, and whether the defendants were bona fide purchasers, and, if there was such fraudulent purchase, the defendants could only hold the flour by showing they were bona fide purchasers. To this ruling the defendants excepted. The court thereupon submitted the case to the jury, in accordance with the ruling made; and the jury rendered a verdict for the plaintiff, fixing the value of the flour at $697.50, the amount paid by the defendants therefor. There was a motion for a new trial made by defendants, and denied, with exception. A judgment was entered, and this appeal taken.
    Samuel Cohn, for app’lts; Nathaniel A. Prentiss, for resp’t.
   WILLIAMS, J.

— It was very likely true, as the trial court held, that there was no proof in the case sufficient to establish the fact alleged in the complaint, that the flour was stolen by Smith from the plaintiff. It was, at most, a case of fraudulent purchase. In any event the question whether the goods were stolen was not submitted to the jury, and the verdict was not based upon any such finding. It cannot, therefore, be sustained upon that theory. The plaintiff alleged that the flour was stolen, but he also alleged that he was the owner and entitled to the possession of the flour; that he had demanded possession thereof from the defendants and they had refused to deliver it to him. We think this was'a sufficient pleading under which to permit the submission of the case to the jury, as the trial court submitted it, upon the question of a fraudulent purchase and the bona tides of the purchasers—especially as the defendants in no way specifically objected that the pleading was not sufficient to permit such submission.

We entertain some doubt as to whether there was sufficient competent evidence to authorize a finding by the jury that there was a fraudulent purchase of the flour from plaintiff. However this may be, we are entirely satisfied there was proof upon which1 the jury should have found the defendants were bona fide purchasers. The defendants testified to their entire good faith. It was found bv the jury they paid full value for the flour. They had no knowledge of the facts constituting the fraud in the purchase, if it existed, and we do not see that the facts and circumstances surrounding their purchase were such as to charge them with notice of such fraud. The defendants did not know the person from whom they purchased, and regarded the price asked as-low, and the purchase a good bargain. The man Ross gave R. J. Dean & Go., a reputable business firm, as his reference; and the defendants inquired of R. J. Dean & Go., who said it was all right. Ross told defendants he had purchased the flour by way of- a trade. We think the facts were not sufficient to authorize a finding of the jury of bad faith on the part of the defendants in making the purchase of the flour.

Our conclusion is, therefore, that the judgment should be reversed, and a /new trial ordered, with costs of the appellants, to abide event.

All concur.


author: INGRAHAM, J.

text:
    National Union Bank, App’lt, v. London and River Plate Bank, Limited, et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Injunction—Separate actions.
    The court will not enjoin the prosecution of separate actions by several parties against the same person, and compel the questions involved to be determined in one action, where each claim is a distinct cause of action, arising out of different transactions, and relates to different property or the proceeds thereof.
    Appeal from an order denying a motion for an injunction to restrain defendants from prosecuting certain actions instituted Against plaintiff.
    Herbert Barry, for app’lt; Wm. S. Grorden, for resp’t London <& River Plate Bank; Chas. Steele, for resp’t Kleinworth.
   INGRAHAM, J.

The plaintiff asked the court at special term to enjoin the defendants, who had instituted four suits, from prosecuting the said suits, and that the questions involved in such actions should be determined in this action. We know of no principle that would justify such an application. The plaintiff is not in the position of a stockholder having in his possession money or property to which there are several claims. None of the defendants in the action, except the receiver, claim this specific balance from the plaintiff. All of the defendants-, except. Kleinworth, allege various causes of action against the plaintiff, each one different from the others in its nature, and arising out of different transactions. As to the defendant Kleinworth, he makes no claim against the plaintiff at all, but seeks to recover from a warehouseman, who is not a party to the action, certain merchandise or its value. There is no fund in the hands of the plaintiff to which the several parties make independent claims; nor specific ¡property in which two or more parties claim an interest. These-defendants, except the receiver, seek to recover the proceeds of certain property that has come into the hands of the plaintiff. But each claim depends upon a different state of facts, and relates to different property, or the proceeds thereof. The position is analogous to that of a deposit of several promissory notes with the plaintiff by a depositor for collection, which the plaintiff had collected, and applied to the payment of a debt due by the depositor to the plaintiff, and a subsequent claim by the real owners of each of the promissory notes to a recovery from the plaintiff of the proceeds of the note that he had collected. , In such a case the right of each alleged owner of the note to recover its proceeds from the plaintiff would be an entirely distinct cause of action, in which the owners of the other notes would have no interest; and upon no principle could a court of equity compel the determination of such independent claim in one action. The claim of each defendant is an independent cause of action, arising upon different facts and circumstances, and has no connection with the-others, except that the plaintiff’s title to the property that each oause or action seeks to recover came through the same individual.

The order was clearly right, and it must be affirmed, with $10 ■costs and disbursements. " ' ' ~

. All concur.


text:
    The People, Resp’t, v. William W. McLaughlin, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 13, 1896.)

    1. Criminal law—-Stay—Vacation.
    The court of oyer and terminer has jurisdiction to proceed with a criminal action, where an order of a justice of the supreme court staying the trial is vacated by the special term of the supreme court, though the order of vacation is erroneous.

      2. Trial Jurors Qualification.
    Whether, in any case, persons called and examined as jurors are so intelligent as to meet the requirement of section 1079 of the Code must necessarily be determined by the trial court and rest in its good judgment and sound discretion.
    U. Same.
    I The previous expression or formation of an opinion or impression in ref- ' erence to the guilt or innocence of a defendant or a present opinion 'or impression in reference thereto, is not a sufficient ground of challenge to any person who is otherwise legally qualified, if he declares on oath that he believes that such opinion or impression will not influence his verdict and he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as will influence his verdict. ,
    4. Same.
    If the court is satisfied, in the exercise of a sound discretion, that the juror cannot try the case impartially and without prejudice, the challenge must he sustained under the first part of subdivision 3 of section 376 of the Criminal Code, and, unless it is satisfied that the juror does not entertain such present opinion or impression as will influence his verdict, the challenge must he sustained under the last part of the subdivision.
    f>. Indictment—Reference to prior counts.
    Where the allegations of time and place in the couhts in an indictment, are referred to in the count in questipn, they become part of the latter count. Where, at the' opening of the trial, the district attorney elects to proceed upon such count of the indictment only, the court may permit the other counts of the indictment to stand only for the purposes of reference.
    3. Criminal law—Principals.
    Under section 39 of the Penal Code, an accessory before the fact, in case of a felony, is a principal, and a person charged in an indictment with the commission of felony may he convicted upon proof that, though ' absent when the crime was committed, he advised and procured its commission ; and it is not necessary to set out in the indictment the facts showing the crime was committed through the agency of another, but a conviction may be had under any indictment charging mer.ely that the defendant himself committed the crime for which the conviction is sought.
    Criminal law—Evidence of similar crimes.
    On 'a prosecution of a police captain for extortion by means of threats, made by a ward man in defendant’s precinct, it is competent, for the purpose of proving that the ward man was defendant’s agent in the commission of the crime charged, to show that, prior to the commission of such crime, during the same and previous years, while they occupied the same official positions, other acts of extortion were committed by means of threats of the ward man, especially in connection with the fact that the defendant had practically conceded such agency in such prior transactions.
    S. Same—Evidence—Memorandum.
    A witness may examine a memorandum or entry made by himself at the time of the occurrence for the purpose of refreshing his recollection, and if it does not refresh his recollection, if he states that he made the entry or memorandum at the time and made it truly, and made it in his own handwriting, the memorandum is bodily admissible as evidence in chief.
    9. Same.
    The court will not, on appeal, reverse the judgment, because there were some other facts stated in the memorandum than those said to he proved, and the charge did not explicitly limit the effect to be given to it as evidence, when no such question was raised on the trial, and, if raised, could have been obviated.
    30. Same—Instruction.
    Where the court correctly charges that an entry in a hook is evidence from which the fact of payment to a certain person can he found, error cannot he predicated upon his failure to state that it should not he considered on the question of the purchase for which payment was made, where there was no request therefor, but merely an exception to what was said.
    31. Same—Appeal—Harmless error.
    The admission of a paper to show that a person, when making a certain statement, had before him but part of an entry in a book, which was given in evidence, if error, is cured by its being stricken out and the jury being instructed to disregard it.
    13. Extortion—Bribery.
    If there is only a threat to enforce the laws and ordinance, in case a party-violates them while taking down a building, or if the fear of the party is that the officer will enforce such laws and ordinances, the officer cannot be convicted of extortion; and the receipt of money by the officer as a consideration for not enforcing such laws and ordinances cannot justify his conviction for extortion. The failure to perform a legal duty in consideration of the receipt of money, is bribery.
    33. Same.
    But where a ward man in the officer’s precinct, acting as an agent, informs the owner of the building, who is obstructing a sidewalk in taking down the building, that he must come down and see the officer and not go ahead with the work until he had, without any suggestion as to the absence of a permit, or of his duty as a policeman, and the owner, after going to the officer’s office and paying $50, goes on with the work without molestation, and there is no evidence as to whether the owner has a permit, a conviction of extortion is proper.
    Appeal from a judgment convicting defendant of extortion.
    The crime was alleged to have been committed in the city of New York, November 21, 1891, and to have consisted in extorting $50 from one Sengrist, by means of a threat to do an unlawful injury to his property. Pen. Code, §§ 552, 553. The defendant was, at the time, a police captain in the First precinct of the city of New York, and the threat was claimed to have been made by one Burns, who was at the time a ward man in the defendant’s precinct. Seagrist had for several years been in the business, in the city of New York, of tearing' down old buildings The indictment was filed March 18, 1895, and in the first four-counts charged, in different forms, the crime of bribery, and in the fifth count charged the crime of extortion, in the following language, in brief, “feloniously did obtain $50 in money from Reagrist, a dealer in second-hand building materials, who was lawfully engaged in business as such, and who was engaged in demolishing and tearing down, and causing to be demolished and torn down, a building in the first ward, hiring and employing therein divers, labores and- workmen, with his consent, induced by a wrongful use of fear, to wit, by means of a threat to do an unlawful injury to his property—that is to injure, annoy, harrass, and obstruct him in his business, and prevent him from properly, freely, and profitably carrying on such business, and especially to harrass, interfere with, obstruct, and impede him while he should be so engaged and employed in demolishing and tearing down such building, and to prevent hinrfrom properly performing the work, labor, and duties necessary and requisite therefor, unless lie gave the defendant the $50.”
    There have been two trials of the defendant under this indictment. The first trial began April 15, 1895, and continued until May 11, 1895, when the jury disagreed, and were discharged. Upon the first trial, at the close of the people’s case, the district attorney elected to proceed only upon the fifth count, for the crime of extortion. After the-disagreement and discharge of the jury on the first trial, the court directed that the second trial be commenced on Monday, May 20, 1895. On Saturday, May 18, 1895, counsel for the defendant served upon the district attorney notice of an application under section 344 et seq., Code Or. Proc., to be heard at a special term in New York City, June 3, 1895, to remove the indictment and action from the New York Oyer and terminer of some other county, upon the ground that a fair and impartial trial could not be had in the county of New York. With this notice of application was also served an order, made May 17, 1895, by a justice of the supreme court, residing in Brooklyn, staying the trial of the indictment, under section 347, Code Or. Proc., until such application could be made and decided. Such order staying the trial was indorsed upon the papers, and filed in New York county, as required by section 348. On Monday morning, May 20, 1895, about 7 o’clock, the district attorney served upon defendant’s counsel an order, made by a justice of tiie sup reme court residing in New York City, requiring the defendant to show cause in the New York special term, at 10:30 o’clock tiie same'morning, why the timé to make such application for removal should not be shortened from June 3, 1895, when it was noticed to be heard, to May 20, 1895, and why the application should not be then and there made and heard. At 10:30 o’clock of that day the defendant appeared, by counsel, before the special term in New York, for the special purpose of objecting, and lie did object, to the jurisdiction and power of the court to shorten the time for making the application for removal, or to compel the instant hearing of such application. These objections were overruled by the court, and the defendant was ordered forthwith to make the application for removal! The defendant refused to make the application until the time for which it had been noticed, June 3, 1895. The court, on the application of the district attorney, then denied the application for removal, and vacated the order staying the trial made by the Brooklyn justice. This order was made and entered, and thereupon the second trial was proceeded with. At the commencement of this second trial the defendant objected to the jurisdiction of the court to proceed, on the ground that the order staying the trial was still in force, and that the Mew York special term had no power to vacate the stay, and its order doing so was void. This objection was overruled, and the trial was proceeded with. This trial continued until June •8,1895, when it resulted in a verdict of guilty of the crime of extortion. On June 19, 1895, judgment was rendered that the defendant be imprisoned in the state’s prison in Sing Sing, for two years and six months. A certificate of reasonable doubt was made by another justice of the supreme court residing in Brooklyn, and the defendant was thereupon admitted to bail, pending the appeal to this court. A separate appeal was taken from the order made by the Mew York special term denying the defendant’s application to remove the indictment and action to another county for trial, and vacating the order made by the Brooklyn justice staying the trial. That appeal is also before this court, having been argued separately from the appeal from the judgment. Many questions are raised by the defendant upon this appeal from the judgment, and the facts relating to these questions will be referred to in considering the questions themselves.
    Edward 0. James, Abram I. Elkus, and Édward É. McC; 11, for app’lt; Daniel Gr. Rollins, Austin F. Fox, and John D. Lindsay, for the People.
   WILLIAMS, J.

We have arrived at the conclusion, upon the appeal from the order denying the application to remove the indictment and action to another county for trial, and vacating the order staying the trial, that such order appealed from was erroneous, and should be reversed, but that such order was not void for want of jurisdiction to make it. When that order was made, the proceeding for a removal was terminated, and there was no longer any stay of the trial. So long as such order remained in force and unreversed, it was, therefore, binding upon the court of oyer and terminer, and that court had the power to proceed with the trial. The objectión, therefore, taken at the commencement of this trial, that the court had no jurisdiction to proceed, on thé ground that the order vacating the order staying the trial' was void, and that the order staying the trial was still in force, was not well taken, and was properly overruled. Such ruling was not erroneous. The want of jurisdiction in the court of oyer and terminer to proceed with the trial was the only ground suggested why the trial should not. proceed, aside from the engagements of counsel, which were fully provided for by the court. There was no suggestion made even that the defendant desired a postponement of the trial to afford him an opportunity to review the order made by the special term, and the court of oyer and terminer itself had no power to review or pass upon the order of the special term.

Many exceptions were taken by the defendant, on the trial, to the allowance or disallowance of challenges to jurors who were called and examined. The questions raised by these challenges are classified by defendant’s counsel under three heads, those relating to jnrors (1) who were rejected because of alleged lack of intelligence and qualifications under the statute; (2) who were accepted, and who participated in the verdict, and- are claimed to have been biased and disqualified; (3) who were accepted, though claimed to have been biased and disqualified, and whom the defendant was compelled to challenge peremptorily.

We cannot say that there was any error made by the learned trial court in rejecting the first class of jurors, upon the ground of lack of intelligence required by section 1079, Code Civ. Proc. That section provides that, in order to be qualified to serve as a trial juror in the city of New York, a person must be intelligent. No particular degree of intelligence is or could be prescribed. It is always desirable that the trial jury in a criminal case should be composed of men of intelligence sufficient to understand and appreciate, and to dispose properly of, the particular case on trial. The grade of intelligence, to comply fairly with this requirement, must necessarily be different in different cases. It could not be the same in all cases. A plain, simple case, involving no complicated questions of fact, and no intricate questions of law, would not call for the same degree of intelligence as a case in which the questions of fact were considerably involved, and the questions of law were difficult to appreciate and understand. Whether, in any case, persons called and examined as jurors are so intelligent as to meet this requirement of the statute must therefore necessarily be determined by the trial court, and must rest in the good judgment aud sound discretion of the trial judge. It must be determined, from the evidence given.by the jurors themselves, the manner in which they answer the questions put to them, their 'demeanor while under examination, their appreciation and understanding of the language used in the questions put to them,- and their appreciation of the questions of fact and principles of law to which their attention is called. The jurors are in the presence of the trial judge. They are not before the appellate court. And where confidence is reposed in the trial judge, and in his honesty, good judgment, and sound discretion, as it is here, we cannot well say that his decision in rejecting the jurors on the ground of lack of intelligence was erroneous, so as to call for a reversal of the judgment.

The second and third classes of jurors were held to be competent under section 376, Code Or. Proc. They had formed opinions or impressions with reference to the guilt or innocence of the defendant ; but they declared unequivocally that they believed such opinions or impressions would not influence their verdict, and that they could render an impartial verdict on the evidence. The court decided that it was satisfied that they did not entertain such present opinions or impressions as would influence their verdict. This provision of law became necessary by reason of the fact that some modification was needed to be made of the old rule that no person who had formed an opinion and expressed it was qualified to act as a juror. Otherwise, the more intelligent men would be excluded from serving as jurors in important criminal cases, and only the more ignorant men would be allowed to sit in such cases. .Daily newspapers, especially in the larger cities, are published in great numbers. They place before their readers all the details of alleged criminal transactions occurring in the community, and the names of all persons said to be connected therewith, and report"all /judicial proceedings as to such alleged crimes and criminals. All intelligent men are accustomed to read these newspapers, and may form more or less definite opinions or impressions as to the matters therein contained, and express such opinions or impressions to others. Only the ignorant classes fail to read the newspapers from day to day. It is apparent, therefore, that, when men are called, as jurors, to sit in an important criminal case, a case that has excited great feeling and interest in the community, few honest, intelligent men will be able to say that they have not heard or read of the case, and have not formed or expressed an opinion or imj pression as to the guilt or innocence of the defendant who is being •tried. Men who do say this are discovered to be wanting in intelligence or are suspected of dishonesty in their statements. If, therefore, an honest, intelligent jury is to be obtained at all in the case, men who have heard and read of the case, and who have formed and expressed an opinion or impression as to the guilt or innocence of the defendant, must be selected.

The intention of the legislature in enacting this statute was to enable the parties to select a jury composed of intelligent men, men who read and think, and form opinions and impressions, and express them, rather than one composed of men who are ignorant, who do not read or think, or have ideas with reference to things transpiring in the community. In People v. McGonegal 136 N. Y. 62; 48 St. Rep. 900, Maynard, J., said:

“ This-statute proceeds upon the reasonable theory that the existence of an opinion as to the subject of the investigation is not inconsistent with the attitude of an impartial seeker after truth. It recognizes, what an intelligent observation confirms, that it is safer to trust a man who keeps himself informed as to the current events of the community in which he lives, and has views and opinions of his own with respect to their import, than it is to rely upon the judgment of one who takes no interest in such matters or does not have sufficient intellectual activity or vigor to form an opinion in regard to them when they are brought to his attention.”

The legislature, at the same time, surrounded persons charged with ci’ime with adequate safeguards to protect them against biased or prejudiced jurors. One ground of challenge provided for by section 376, Code Or. Proc., is:

“(2) For the existence of a state of mind on the part of a juror in reference to the case or to either party, which satisfies the court in the exercise of a sound discretion that such juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging. But the previous expression-or formation of an opinion- or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference therero, is not a sufficient ground or challenge to any person who is otherwise legally qualified if he declare on oath that he believes that such opinion or impression will not influence his verdict, and he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict.”

It will be seen that a juror must, under oath, declare his belief, as prescribed by the statute, and beyond that the court must be satisfied. If satisfied, in the exercise of a sound discretion, that the jurors cannot try the case impartially and without prejudice, the challenge must be sustained, under the first part of the subdivision; and, unless satisfied that the juror does not entertain such present opinion or impression as would influence his verdict, the challenge must be sustained under the last part *f the subdivision. In People v. McQuade, 110 N.Y. 300; 18 St. Rep. 288, Andrews, J., said:

“ There has been no change in the fundamental rule that an accused persons is to be tried by a fair and impartial jury. Formerly the fact that a juror had formed and expressed an opinion touching the guilt or innocence of a person accused of crime was, in law, a disqualification; and, although he expressed an opinion that he could hear and decide the case upon 'the evidence produced, this did not render him competent. * * * Now, as formerly, an existing opinion, by a person called as a juror, of the guilt or innocence of the defendant charged with crime, is, prima facie, a disqualification ; but it is not now, as before, a conclusive objection, provided the jnror makes the declaration specified, and the court, as judge of the fact, is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. It does not satisfy the requirement if the declaration is qualified or conditional. It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement, if, on construing the whole declaration together, it is apparent the ]uror is not able to express an absolute belief that his opinion will not influence his verdict.”

In People v. McGonegal, 136 N. Y. 62; 48 St. Rep. 900, the jurors had unequivocally declared their belief, as required by the statute, and the court held that the remaining question as to the qualification of the juror under this statute were questions of fact, and the decision of such questions was not reviewable on appeal, under section 455, Code Or. Proc.

All the jurors in these two classes unequivocally declared their belief, as required by this statute, and- the only questions remaining are whether the trial judge properly decided that he was satisfied that the jurors could try the case, impartially and without prejudice, and that they did not entertain such present opinions or i’npressions as would influence their verdict. It is doubtful whether these decisions by the trial judge are reviewable upon appeal, under People v. McG-onegal, above; but, if the right of revieiv does exist, we cannot say that the decisions were erro.neous. The trial judge acted, not alone upon the evidence given by the jurors themselves, but upon the appearance and demeanor of the jurors, and the intelligence exhibited by them upon their examination. These are important factors in reaching a just conclusion in all cases. These aids to a correct judgment are not available upon appeal The trial judge had the best means of deciding the qualifications of the jurors, and of judging whether they were honest in declaring their belief, and whether their judgment as to their ability to act in accordance with such belief was to be safely relied upon. Considering the examination to which the jurors were subjected, as disclosed by the record, and that jurors were not lawyers, but were laymen, and were presumably willing to be relieved from service on the jury, it is not remarkable that they made some answers that were apparently inconsistent with their belief as finally declared. This would be likely to occur. Upon the whole evidence given, and upon the personal appearance and demeanor of the men while being examined, the learned trial judge made the decisions overruling the challenges; and, even if such decisions are reviewable on appeal, we should not be willing to question their correctness here. There were more or less exceptions to evidence taken on the examination of the jurors, but none of them call for any special notice here. The extent of the examination was largely in the discretion of the trial judge, and wé cannot see that such discretion was improperly exercised. Our conclusion is that there were no errors with reference to the impaneling of the jury calling for a reversal of the judgment.

It is claimed that the fifth count of the indictment under which the trial was had, resulting in the conviction of the defendant, contained no allegations as to the time when and the place where the crime was alleged to have been committed. We do not regard this claim as well founded. The allegations of time and place in the other counts of the indictment were so far made a ■part of the fifth count that it may be said the fifth count did contain such necessary allegations; and the election made by the district attorney to proceed alone under the fifth count did not so far take the other counts out of the indictment as to, leave no allegation of time and place in the fifth count. The allegations of time and place in the other counts in the indictment were referred to in the fifth count, and thereby became a part of that count. It appears, from the record, that, at the opening of this trial, the district attorney elected to proceed upon the fifth count of the indictment only, and the court permitted the other four counts of the indictment to stand only for the purposes of reference. It was mecessary that these questions should be settled at the opening of the trial, in order that the parties might understand their rights in reference to peremptory challenges in the selection of the jurors. The indictment as it stood at the time of the last trial was not defective in this respect.

As we have already stated, the threat in this case was claimed' to have been made, not by the defendant himself, but by his wardman,- Burns. The prosecution undertook to charge the defendant with responsibility for this threat by showing the existence of a general scheme by which, within the precinct over which-the defendant was in command, Burns should act as defendant’s agent in making threats for the purpose of extortion, and thus to-bring the defendant within • the .provisions of section 29 of the-Penal Code, which provides that:

_ “A person concerned in the commission of a crime, whether he directly does the act constituting the offense, or aids and abets in its commission and whether present or absent, and a person who-directly or indirectly counsels, commands or procures another to-commit a crime, is a principal.'.’

In this state the law previously existing in cases of felony has-been so changed that one who formerly would have been ah accessory before the fact is now a principal, and a person charged in an indictment with the commission of a felony may be convicted upon proof that, although absent when the crime was committed, he advised and procured its commission ; and it is not necessary to set out in the indictment the facts showing the crime was committed through the agency of another, but a conviction may be-had under an indictment charging merely that the defendant himself committed the crime for which the conviction is sought. People v. Bliven, 112 N. Y. 79; 20 St. Rep. 486; People v. McKane, 143 N. Y. 455-465; 62 St. Rep. 829.

For the purpose of proving the general scheme claimed to have existed, and the agency of Burns for the defendant in pursuance thereof, and in the commission of this offense, the people were permitted to give evidence of various transactions occurring, before the time of the alleged commission of this crime, during the years; 1888, 1889, 1890, and 1891, wherein it was claimed Burns acted as the agent, and under the counsel, command, and procurement, of the defendant, in extorting money from Seagrist and others by means of threats to do unlawful injury to their property. There was a transaction with Seagrist in August, 1888, and another in May, 1889; one with Chelsey in February, 1890; and one with Galligan in November, 1891; and there were conversations between Seagrist and the defendant during these years tending to show Barns’ agency for the defendant in these transactions. All this evidence was given by the prosecution for the sole purpose of establishing criminal agency, and the learned trial court in its-charge explicitly limited the effect to be given to the evidene to-this purpose. This evidence was objected to by the defendant on the ground that it was incompetent to prove the commission of other prior offenses by the defendant for the purpose of establishing his guilt, of the crime for which he was being tried.

It is undoubtedly true that proof may not be given of the guilt of the defendant of other crimes for the purpose of raising the-presumption that he committed the crime for which he is being" tried. Xo inference can be drawn by a jury that one crime has been committed from the fact that the defendant has committed other crimes. But it is not 'true that proof "may never be given of the commission of other crimes than that charged in the indictment, upon which the trial is being had. There are many cases in which such proof may be given as bearing upon the motive and the intent and other facts in issue. People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217; People v. McKane, 143 N. Y. 455; 62 St. Rep. 829; People v. Shea, 147 N. Y. 78. In the Shea Case the prosecution was permitted to show that the defendant was engaged in other transactions on the day of the homicide, at different times and places from those when and where the homicide was committed, which were in fact crimes against the elective franchise; and the court of appeals held that such evidence was proper upon the question of premeditation and deliberation, Judge Peck-ham saying:

“ In order to prove the defendant’s guilt, it is not permitted to show his former character, or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question. Evidence, however, which is relevant to the issue, by tending, for example, directly to explain or characterize the act which is in question on a criminal trial, has never been held incompetent, because it also tended to, or did, prove the defendant guilty of another crime. The evidence in- question, we think, comes under this latter rule. It was received by the learned trial judge upon the question of the intention and deliberation of the defendant in firing the shot at the deceased. Upon the grounds stated and for the purpose mentioned, we are clear that the evidence as to repeating was admissible, and the exception thereto was without merit.”

In the McKane Case, O’Brien, J., said:

“ The prosecution attempted to show a criminal conspiracy or scheme in which many officials were engaged for the purpose of casting a large fraudulent vote at the election, and that the concealment of the registry list from the public prior to the election was or became a necessary part of the scheme. The inquiry necessarily took a very wide range. The evidence received could not have been admitted to show that the defendant might have been guilty of some other offense or wrongdoing not charged in the indictment; but, if it had a bearing upon the issue involved in the trial, it could not be excluded merely because it tended to justify such an inference.”

The evidence here was not given for the purpose of raising a presumption that the defendant committed this crime because he had before this been guilty of other crimes of a like nature. The prosecution sought to prove such agency of Burns. They could not be expected tp do this by direct evidence. They must prove it, if at all, by circumstantial evidence; and this might properly be done by giving any proof that tended to' establish such criminal agency, notwithstanding the evidence given also tended to prove other distinct crimes to have been committed by the defendant through the agency of Burns. The only question is whether the •evidence received of these prior transactions was competent and proper, as circumstantial evidence tending to establish the fact sought to be proved. The rules of evidence are the same in criminal cases as in civil cases, except as otherwise provided-in Code ■Or. Proc. § 392. It is common, in civil cases, to establish agency by showing the relations of the parties in other transactions than the one in issue in the case on trial, by showing other transactions ' relating to the same business, and extending over months and years when the parties held the relations of principal and agent; -and we see no reason why the same rule of evidence may not be applied in this case. The suggestions made by the learned trial judge in his charge upon this subject, and explaining the purpose for which this evidence was received, seem to us to have been proper and correct. The evidence given tended to show that these men occupied the same official relations to each other during the years 1888,1889, 1890, and 1891, prior to the alleged commission of this crime, and that they were engaged in this same general scheme of extortion, Burns acting under the advice, commands, and procurement of the defendant, apparently in pursuance of® such general scheme; and that the defendant, in conversations had with him, practically conceded such agency in such prior transactions. We have no doubt but that the evidence of the transactions themselves was competent, in connection with the conversations so testified to, as tending to establish the agency of Burns for the defendant in the commission of the crime for which the ■defendant was being tried.

There were some exceptions taken to particular items of this •class of evidence, and to the instructions of the court to the jury with reference thereto; but we do not regard them as meritorious. We are of opinion that this class of evidence was properly received upon the trial.

It is claimed that the admission of the entry, in Seagrist’s books, under date of November 21, 1891, was erroneous. The -entry was made by Seagrist in his books on the day he paid the money,—the $50 referred to in the indictment. The entry reads as follows:

“Nov. 21, 1891, material paid to McLaughlin for protection, per Sergt. Burns, ordinance officer, $50.”

It appeared, on the trial, that, when Seagrist was before the grand jury, he testified that he paid the $50 to the defendant himself. He had with him, then, a .copy of an entry in his book, made for him by a young man in his employ. This copy was put in evidence, but was subsequently stricken out, and was not before the jury. After the indictment was found, and before the trials were had, and in April, 1895, Seagrist examined the entry in the book itself; and then he testified on the last trial that he ■could not remember whether he paid the money to the defendant -or to Burns. He recollected that he paid to tlié one or the other, but he could not remember which. He said, also, that he could only state the date of .the payment by looking at the entry in the book. He testified that h'e had made the entry at the time, in the regular course of business, and that it correctly stated the facts therein contained, and the date as well. The entry was offered in evidence by the prosecution, and the defendant objected to it as incompetent and inadmissible for the purpose of showing to whom the money was paid, or for any other purpose, and that the witness could not, by writing in his own books at a particular time, make the statements therein contained written evidence against the defendant for any purpose. The court received the entry in ■evidence, stating the rule to be that:

“A witness may examine a memorandum or entry made by himself at the time of the occurrence for the purpose of refreshing his recollection. If it does not refresh his recollection, if his recollection is not clarified by the entry, but he states that he made the entry or memorandum at the time, and made it truly, and made it in his own handwriting, then the memorandum is bodily admissible as evidence in chief.”

The whole entry was read to the jury. The learned trial judge, in his charge to the jury, commented upon this entry, and its effect as evidence, as follows:

“ How, on the question of payment of the money, Seagrist says, in this particular instance, that he paid the $50 to one or the other, to Burns or to the defendant. He also tells us that, when he was before the grand jury, he testified that he paid it to the defendant personally, and that he then believed that testimony to be true. He adds, however, that subsequently, upon looking at his book, he found the entry therein in his own handwriting, on the very day of the payment, and that this entry caused him to hesitate in giving effect to the expression of his recollection. In other words, he said, in substance, 11 recollected, when I testified before the grand jury, what I then testified to; but I am unwilling now, in view of that entry, positively to swear that the money was paid personally to the defendant, and I give the defendant the benefit of the doubt created by the enfry.’ * "* * If the criminal concert of action between these parties is made out, then, whether Seagrist’s recollection as to the payment to the defendant personally is at fault, or not, makes no difference. If he paid it to the ■defendant personally, the fact is there. If he did not pay it to the defendant personally, but paid it to Burns, then, if the criminal concert is made out, the law says the payment to Burns was the payment to the defendant. * * * It is for you to say, however, whether the expression of doubt thus caused does or does not tend to show that the witness was conscientious; for, after all, gentlemen, the entry had not refreshed his recollection, as he admits, but rather clouded it. However, the entry was admitted as independent evidence, and it is before you as such. I therefore leave it to you to say whether an entry made in a man’s books at the time, in the manner, and under the circumstances that this was made, is or is not more satisfactory than human recollection. 1 leave that to you. The entry was not a memorandum made upon a slip of paper, or in a diary, but was carefully made in the witness’ books of account. Entries precede and entries follow it. It is for you to say whether such an entry does or does not carry greater conviction than human memory, whether it was likely to have been fabricated, whether there is anything in the surroundings to justify the conclusion that, on the 21st of November, 1891, it was falsely entered for an ulterior purpose. Is there anything to justify such a conclusion? I leave that to you to say. It is there before you as evidence. You have the threat testified to by Seagrist. You have the entry. It is for you to say what the value of that testimony is on this issue. As far as the entry in the book is concerned, I leave it to you to say whether there is z^ny evidence in the case, assuming it to be absolutely true, which conflicts with what is stamped upon the page of that book. * * * It is for you to say whether the testimony as'to the declarations made by Seagrist out of court really militates against the testimony he gave here. Again, does it militate against the entry in the book ? ”

At the close o£ the charge, the defendant, among other things, said:

“ I also except to each and every part of the instructions as to the question of payment of money. * * * I want to except to that part of the charge in which you instruct the jury as to the entries in Seagrist’s book, and as to how it affected Seagrist; also, to each and every statement in the charge, separately, respecting Seagrist’s testimony on that point. * * * I also except to that, part of the charge in which you state, in substance, that the entry-in Seagrist’s book is evidence, and in which you leave it to the jury to say whether the entry in Seagrist’s book is not more satisfactory than human recollection, and to each and every instruction about such entry, and in regard to the entry being evidence for any purpose.”

We have thus given a very full statement of the facts relating to this entry, its offer, and its reception in evidence, the objections made to it, and the instructions by the court to the jury with reference thereto. The rule of law ,was correctly stated by the learned trial, judge in his decision admitting the entry in evidence. Under this rule, we are entirely satisfied it was competent evidence in the case as to the date when the money was paid and the person to whom it was paid. It cannot be denied that it was material to show the date and the particular person to whom the monev was paid. Neither of these facts could be remembered by the witness after looking at the entry. The entry was evidence tending to show that the date was November 21, 1891, and that the person to whom the money was paid was Burns. There seems to be no real doubt as to what the entry means, to wit, that the money was paid to the defendant through or by the. hand of Burns. The prosecution was not precluded, by the doubt expressed by Seagrist as to the meaning of the entry, from having the entry itself in the case and before the jury." He was evidently willing to be in doubt, for the benefit of the defendant, to aid him in his defense. But the prosecution was under no obligation to sympathize with him in that regard. Its duty was to prove the defendant’s guilt if it could, and it had the legal right to give any competent evidence it could on that subject. This •entry was strong evidence that the money was paid to Burns, and it was received in evidence solely for that purpose, and to prove the time when the money was so paid. Por this purpose it was, as stated by the learned trial judge, independent evidence, and was properly received as such. The only answer to this position is that the fact as to whom the money was paid was immaterial in the case as it was tried. We do not so regard it The witness stated that he paid the money to one or the other of these two men. Was it not competent and material to ask him which man it was to whom he paid it ? Gould an objection to that question to him have been properly made? Certainly not. And if this be true, then the witness being unable to recollect, after examining the entry, which person he paid it to, the entry itself was competent evidence as tending to prove that fact.

It is said, however, that a conviction could be had, as the case stood, only upon the theory of a payment to Burns, because Sea-grist having failed to testify that it was paid to the defendant personally, being unable to remember that fact, there was no evidence upon which a payment directly to him could be found. The prosecution must, therefore, rest the case upon proof of a payment to Burns, and to him alone. That is true. The defendant had asked Seagrist if -he remembered that he paid the money to Burns and if he would swear to it; and he replied, “ Mo; he could not swear to it, because he did not remember that he did.” In this condition of the evidence, it is beyond question that it was material and necessary that proof should be given as to the person to whom it was paid, and that Burns was such person. The entry stated this fact. Seagrist did not and could not remember this fact after examining the entry. The entry itself was, therefore, clearly competent, as tending to prove this fact The prosecution had no other way of proving it, in view of the want of memory of Seagrist. It was peculiarly a matter of necessity to have this evidence, within all the authorities permitting this class of evidence.to be given.

It is said, however, that the entry contained other matters which were prejudicial to the defendant, that the fact was stated that the payment was “ for protection,” and that there was a criminal agency; Burns receiving the money for the defendant for such protection. Mo such question as this was raised, or in any way suggested on the trial. It has evidently occurred to the defense since the trial was closed. The purpose for which the prosecution offered the entry was to fix. the date and the person to whom the money was paid. If there had been any suggestion on the part of the defense that portions of the entry were objectionable, the 'court could have provided that only such portions of it as were proper should be read or submitted to the jury, and the balance could have been withheld from them. Mor was the learned trial justice requested in any way to protect the defendant by instructing the jury as to the particular use that should be made of the entry as evidence, and that they should regard it for no other purpose. The defendant contented himself with an exception to each and every thing the trial jude did say on the subject. What he did say was correct. He would undoubtedly have given further instructions if the defendant had requested them. He called the attention of the jury to the entry as evidence of the fact as to whom the money was paid, and to its effect in that regard, suggesting that the entry might be stronger evidence than even, Seagrist’s positive recollection of the fact. We should not now, on appeal, reverse this judgment, because there were some other facts stated in the entry than those sought to be proved, and the charge did not explicitly limit the effect to be given to the entry as evidence, when no such question was-raised on the trial, and, if raised, could have been obviated in the manner we have suggested. We think no error was committed in the reception of this entry in evidence.

Daring the examination of Seagrist as a witness, it appeared that, while before the grand jury, he had a copy of a portion of the entry we have just considered, the part reading: “November 21, 1891, material paid to McLaughlin. $50.” -On the trial, Seagrist said, at first, that he had a copy of the entry in his books, without stating what it was ; and yet he testified before the grand jury that he paid the money to the defendant personally. In order to avoid the inference that might be drawn that he had a copy of the full entry referring to "Burns at the time he testified before the grand jury, the prosecution asked the defense to concede that it was not a full copy of the entry, and that it had in it no reference to Burns; that they did not desire any concession as to what it did contain, but simply as to what it did not contain. The defense refused to make any concessions, and the prosecution then offered in evidence the papel’ itself, for the sole purpose of avoiding any inference that Seagrist had a copy of the whole entry when he testified, before the grand jury, that he paid the money to the defendant personally. The court at first received the paper in evidence, and a little later struck it out, and instructed the jury to disregard it. " There may well be doubt as to whether the first ruling of the learned trial judge admitting the paper in evidence was erroneous, under the circumstances. But, even if it was, we think the error was cured, so that no injury could have resulted to the defendant from the admission of the paper in evidence, and thereafter striking it out. In Lindsay v. People, 67 Barb. 548; affimed, 63 N. Y. 143, evidence was received, and afterwards stricken out, and the jury were instructed to disregard it. The general term held that the evidence was talcen out of the case, and the exception with it. The case was-affirmed by the general term and by the court of appeals, and the defendant was executed. Certainly, no injury co.uld have resulted in this case to the defendant, because the full entry, of which this was a part was properly received in evidence, and considered by the jury.

It is claimed that the defendant was improperly convicted, under the evidence, of the crime of extortion; that if guilty of any crime-it was the crime of bribery; and that the trial court improperly instructed the jury upon this subject. The main evidence as to threats was given by Seagrist. He testified that, at the time o£ the talk with Burns, the work of tearing down the building had been commenced, the floors had been open, the cornices and roof had been taken off, and some material had been taken out o£ the-building, and that he understood that the work had been stopped for half a day, that Burns had stopped the carrying of any materials across the side.walk, and putting them upon trucks, or piling-them upon the sidewalk. Connelly had charge of the work for Seagrist. The same day, and before Seagrist and Burns had their talk, Burns had an interview with Connelly, Connelly had puta blockade across the sidewalk of barrels and boards, to keep people off the sidewalk under the cornice, which was being torn off the building. Burns told Connelly he could not have thes0e barriers. up, that he (Connelly) had good cheek to put them up; and he (Burns) kicked them down. Burns asked Connelly if he had a permit. Connelly said he had, and showed it to burns. Burns-said it didn't cover blocking the sidewalk, and asked where his (Connelly’s) boss was; said his boss ought to be there, and attend to it. Burns told Connelly he would have him arrested if he blocked the sidewalk, and that he (Burns) would have to see Sea-grist. Seagrist then went to the building, and had a talk with Burns. Burns said that Seagrist should not go ahead with the work until he had been down to the captain’s office. Seagrist said he would go down; and he went, but did not find the defendant in. The next morning he went to the building again, taking the money ($50) with him, and paid the money that day, and then proceeded with the work, and no complaint was made after that by the defendant or Burns. In the charge to the jury, the learned trial judge said:

“The prosecution has to prove the threat. It is of minor eon-sequence what was actually done. The question is not whether the threat was executed, — whether, for instance, the boards that were placed upon the barrels, to prevent people from being injured as they passed, were actually kicked down or not. Of course such acts might aggravate the threat, and prove that it was seriously intended; but what the law requires is the threat itself, not necessarily, the execution of it. And that view of the matter renders the testimony of Connelly really somewhat unimportant against the main question as to whether there was a threat. He testified that certain acts were done. The main question is. was there a threat to do an unlawful injury to Seagrist’s property? As to that, Mr. Seagrist gives evidence in this language, speaking of the interview he had with Burns (I am speaking now entirely of the threat charged in the indictment): ‘He [Burns] said I must come down and see the captain and not go ahead with the work until I had. Q. What did he say about not going ahead ? A. That I should not go ahead with the work. Q. Until what? A. Until I bad been down to the captain’s office.’ Nothing there, gentlemen, about corporation ordinances. If that testimony is true, the threat was that Seagrist should not do any work at all until he had seen the captain. Now, if you believe that testimony, it is a sufficient threat in the law, of injury to property. To threaten a man that be will not be permitted to pursue his lawful avocation at all unless he goes somewhere where he is not bound to go, or does something which he is not hound to do, is a threat of unlawful injury to property. It is immaterial whether the threat was ex-■excuted. If the threat was made, and the money was paid under the apprehension that, if it was not paid, the threat would be carried out, the offense is complete. The only fear which the law requires is fear that, unless the party attacked submits to the demand of the person attacking him, his business will be injured. A threat to injure his business constitutes the threat contemplated by the law. The fear resulting therefrom is not bodily fear. It is .an apprehension of injury to property rights. And the stoppage of a man’s business is an injury to property and property rights. * * *° You have the threat testified to by Seagrist. * * * Now, is there any contradiction of this testimony, so far as the threats are concerned ? There is none; none whatever.”

The defendant excepted to these portions of the charge generally, and requested the court to charge that the tearing, down of the building in question was not lawful without a permit in writing from the department of public works, and that there was no •competent evidence in the case that Seagrist had any such permit -as to this building. The court so charged, adding: “ It is immaSerial, though.” The defendant then excepted generally, without specifying that his exception was to the latter remark by the learned trial judge. The court had already charged the jury that, if there was only a threat to enforce the laws and ordinances, in case he violated any of them while taking down the building, or if the fear of Seagrist was that the defendant would enforce such laws and ordinances, the defendant could not be convicted; that the enforcement of such laws and ordinances, against Seagrist could not be an unlawful injury to his property, though it interfered with his work; that the receipt of the money by defendant as a consideration for not enforcing such law and ordinances could not justify the conviction of the defendant for extortion; and if what the defendant did was as captain of the police, and under pretense or color of official authority, he could not be convicted. It is true that a threat by the defendant to do a lawful act as captain of the police force, unless money was paid to him, would not constitute extortion. The failure to perform a legal duty, in consideration of the receipt of money, would be bribery. Under the ordinances of the city of New York, it was the duty of the defendant, as captain of police, and of the men under him, to keep Seagrist and his men from obstructing the sidewalks or streets, unless he had a written permit from the proper department to do so. It did not appear in the case that Seagrist had no such written permit, or that, in tearing down the building, he was, as matter of fact, engaged in any unlawful business. There was no proof that Burns required him to discontinue tearing down the building for any such reason. The case was submitted to the jury upon the question of the threat, as testified to by Seagrist, that he must proceed with the word at all until he had seen th§ captain; and it appears that, when he had seen the captain, he was permitted to proceed, and finish the work without further interference from Burns or the defendant, though his workmen were engaged in such work for something like sixteen days. The court, in substance, charged the jury that, if the threat was made as Seagrist testified to, it was a sufficient threat under the statute as to extortion. If such threat was not made, no conviction of the defendant could be had at all. In Burns’ statement, there was no suggestion as to Seagrist’s work being unlawful, as to the absence of any permit, or as to the performance of their duty as policemen by himself and the defendant in preventing the obstruction of the street or sidewalk. The board, unequivocal statement was made that the whole work must stop, not until he had secured a permit, but until he had done what he was under no obligation to do,—gone down and seen the captain. The import of this language, certainly, in view of Sea-grist’s former experiences and transactions with Burns and the defendant, was very clear, and very easily understood. Seagrist well knew what it meant He obeyed the directions, and that ended all his troubles. He was permitted, without molestation, to proceed with and finish his work. It seems to us, under the charge of the learned judge, the crime was clearly extortion, and not 'bribery, and that there was no error committed by the court in submitting this issue as to the alleged threat to the jury.

Very many other exceptions appear in the record, which is quite voluminous, and which we have examined and considered, but , which we do not deem it necessary to refer to in detail here. ¡They are not of sufficient merit to require a reversal of the judgment. It seems to us that the defendant was proven, beyond any reasonable doubt, to have been guilty of the crime of extortion charged in the indictment, and that the judgment should be affirmed.

All concur.


author: FITZSIMONS, J.

text:
    Alexander J. Mayer, App’lt, v. Philip C. Bruns, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Abatement and revivar—Substitution of administrator.
    Under § 757 of the Code, the court need not, on the death of a defendant, substitute his administrator, where the complaint shows the action is barred by the statute of limitations and the answer sets up the statute.
    Appeal from an order denying a motion to substitute as defendant the administrator of the original defendant, and that the action be continued against him.
    GK Waterbury, for app’lt; Donald McLean, for resp’t,
   FITZSIMONS, J.

The order appealed from must be affirmed, -with costs, for the reason stated in the opinion of the special term justice. Besides, it is undisputed that the motion was not made by the plaintiff’s, attorney of record.

All concur.

The following opinion was rendered at special term by Mr. Justice CONLAN:

“The complaint shows on its face that the action was not commenced within six years, and the answer pleads the statute of limitations. I see no reason for bringing in the administrator. Motion denied.”


text:
    Jonathan H. Ransom, Resp’t, v. John W. Wheelwright et al., App’lts.

      (New York City Court, General Term,

      Filed March 16, 1896.)

    Appeal—Conflicting evidence.
    A verdict, upon conflicting evidence will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff.
    Wilson & Wallace, for app’lts; Abram Filing, for resp’t. >
   FITZSIMONS, J.

The jury evidently believed that the contract which expired April 28, 1891, was renewed in accordance with the terms expressed in defendants’ letter to plaintiff, dated April 11, 1891, except that it expired' only after 60 days’ notice to terminate the same had been given by either plaintiff or defendants. They also believed that he was the person 'who .procured Drabble Bros, to purchase goods from the defendants to the extent of $60,000, which entitled him to the verdict .rendered. There is ample testimony to sustain these beliefs of the jury, and, besides, we think the record shows that the plaintiff was equitably entitled to the commission on the sales made by defendants to said firm of Drabble Bros., because they never were customers of defendants’ firm until after their orders were solicited by the plaintiff.

We find no error in the printed record, and the judgment is affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    Louis Frazier, App’lt, v. Melvil Dewey et al., Resp’ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed Feb. 5, 1896.)

    1. Pleading—Ejectment.
    ■ The plaintiff, in framing his complaint in ejectment, is entitled to insert a demand for damages for withholding the property.
    2, Same—Misjoinder.
    Under sections 1496, 1497 of the Code, counts for the possession of the premises, in an action of ejectment, may be joined with counts for damages, including rents and profits.

      Appeal from an interlocutory order, sustaining a demurrer to the complaint on the ground that several causes of action are improperly united.
    The first part of the complaint, consisting of paragraphs numbered 1, 2, 3, 4, states a cause of action in ejectment for the recovery of three parcels of land, closing with an allegation of damage to the plaintiff, “ as near as plaintiff can estimate the same, exclusive of the rents and profits heretofore received, or which may be received by the defendants, or either of them, during the pendency of this action, of five hundred dollars.” Then follow paragraphs numbered 5 and 6. In paragraph 5 it is alleged: “ That there is situated on the first and third described parcels a public boathouse and bowling alley; that the business carried on and in connection with the boathouse and bowling alley has during the season of 1895 been profitable, and that the same has been conducted by the defendants, and. that they have received the rents and profits of such business and that the same amounts to five hundred dollars.” In paragraph 6 it is alleged: “That there is situated on the second described parcel of land an hotel or house of public entertainment, and that the business of the same was carried on by the defendants, and that the rents and profits of said business during the season of 1895, and down to the time of verification of the complaint, were $1,000, and that the same were received by the defendants.” The prayer of the complaint is: First. For the possession of the several parcels of land. Second. Damages for the withholding, including the rents and profits, and the value of the use and occupation, to the amount of $2,000. Third. That the defendants be required to account 'as to the rents and profits received by them from the several parcels of land, or any or either of them.
    C. M. Harwood (Sidney E. Maders, of counsel), for app’lt; Hand, Kellogg & Hale (R. L. Hand, of counsel), for resp’ts.
   PER CURIAM.

We do not think the demurrer well taken. The plaintiff, in framing his complaint in ejectment, is entitled to insert a demand for damages for withholding the property. Code Civ. Proc. § 1496. Section 1497 provides:

“ Those damages include the rents and profits or the value of the use and occupation of the property where either can legally be recovered by the plaintiff.”

We think that the plaintiff did not, by paragraphs 5 and 6, set forth - separate causes of action against the defendants for the recovery of the profits which they made in carrying on business upon the land in question, but that he thereby intended to specify the “ profits which he mistakenly supposed are referred to in section 1497, as'included in the “damages” which he could rightfully demand under section 1496.

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with costs, with leave to the defendants to withdraw demurrer, and answer in 20 days upon payment of costs.


author: RUMSEY, J.

text:
    People, Resp’t, v. Abraham S. Friedland, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Evidence—G-qod chabacteb.
    In every case where evidence of good character is given, the defendant is entitled to an instruction that it is to be considered as primary testimony upon the question of his guilt.
    2. Same.
    Evidence of good character bears directly on question of guilt, whether the evidence against him is direct or circumstantial, and is not merely corroborative of testimony given by him, or explanatory of criminating circumstances in evidence against him. , ,
    3. -Same. • •
    A charge, which states that evidence of good character is not a defense to crime, and that, if the jury are satisfied beyond a reasonable doubt of the guilt of defendant, his previous good character is no defense, is erroneous.

      4. Same—Reasonable doubt.
    In every case, the prisoner upon trial is entitled to have an instruction that his guilt must be proved beyond a reasonable doubt.
    6. Same.
    A reasonable doubt is one which arises from the evidence and its character, or from the absence of satisfactory evidence in the case, and is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence.
    Appeal from a judgment convicting defendant of the crime of receiving stolen goods.
    Louis. J. Yorhaus, for app’lt;' John D. Lindsay, for resp’t.'
   RUMSEY, J.

While there was direct evidence against the defendant of many of the facts necessary to convict of the crime of which he stood accused, yet there was no direct evidence of the guilty knowledge with which he received the goods, and which was an essential element of the crime. The fact was sought to be proved by several circumstances from which it was claimed that the jury must infer that he received the goods knowing that they had been stolen. To these circumstances the defendant interposed his own denial of the guilty knowledge, some slight explanation of the circumstances, and testimony from the mouths of several witnesses of his good character. The court, in submitting the case to the jury, charged that they might consider the testimony of the defendant, and the evidence that he had introduced as to his good character. The court then proceeded as follows:

‘While evidence of good character is always admissible, it is not a defense .to crime. It is not an excuse or a justification before a jury for the commission of any criminal act. If you should be satisfied beyond a reasonable doubt that this defendant purchased these brushes with a guilty knowledge of their origin,' then I charge you that his previous good character would be no excuse, no justification, no defense. Evidence of good character goes before a jury as a fact in the case, to be considered as all other facts are to be considered ; and it is when a jury gets into that frame of mind, legitimately produced from conflicting evidence, when a reasonable doubt may arise on the evidence as to the guilt of the defendant, that evidence of good character sometimes may create a reasonable doubt.”

To this portion of the charge the defendant excepted, and this exception is mainly relied upon as the error for which a reversal is asked in this case.

In all indictments the defendant is at liberty to produce positive testimony as to his good character to strengthen the presumption which always exists, and when such evidence has been produced it is something more than mere corroborative evidence of the testimony which he gives. It is of itself positive evidence bearing upon the question of his guilt or innocence, and it is to be considered by the jury, not merely as explanatory of the criminating circumstances, to be considered after a conclusion has been reached upon the main question of the defendant’s guilt or innocence, but as testimony bearing upon that precise>point. In every case where such testimony has been given, the defendant is entitled to an instruction that it is to be considered as primary testimony upon the question of his guilt. In this case we think the learned judge did not give to the jury as complete instruction as to the weight to be given to evidence of good character as the defendant was ■entitled to. The case was one where such evidence was primarily to be considered. The inference of guilty knowledge was to be established from any circumstances the weight of which depended very largely on the view to be taken of them by the defendant himself. In considering that view his character was necessarily an important factor, and of itself it would be sufficient, if it was good, to explain away circumstances which otherwise would be of great weight in establishing his guilt. In such a case the fact of good character must be considered by the .jury as an absolute probative fact. We do not mean to be understood as limiting the effect of this evidence to cases where there is only circumstantial evidence to establish the guilt of the accused. Where evidence of good character is given it is to be considered, as directly bearing upon the question of guilt or innocence, even though the evidence against the accused is of the most direct and positive nature ; and in every case the weight to be given to it is for the jury. The courts in this state ■ have spoken with no uncertain sound upon the subject. The leading case upon the subject is the case of Remsen v. People, 57 Barb. 324; 43 N. Y. 9. In that case the jury were told that:

“ Where the evidence is positive, leading to a conviction, logically and fairly derived, of guilty, from all the testimony, the simple fact that a person possesses previous good character will be of no avail. It is only in cases where you have a well-reasoned doubt, logically arrived at, arising out of all the testimony, that evidence of good character steps in; and then it becomes your duty, under your oath', to give a verdict in favor of the prisoner.”

Upon that charge the prisoner was convicted, and the court at general term upon a writ of error held that the charge fairly expressed the law with regard to the weight to be given to the testimony of good character, and affirmed the conviction. It was, however, reversed by the court of appeals, for the reason that the charge as above quoted was erroneous. The court in that case say;

“■ There is no case in which the jury may not, in the exercise of a■ sound judgment, give the prisoner the benefit of a previous good character. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and to lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the “case is false, or- the witnesses mistaken. -An individual accused of crime is entitled to have it left to the jury to form their conclusion upon all the evidence whether he, if his character was previously unblemised, has or has not committed the particular crime alleged against him.”

The court further say:

“ Evidence of good character is not only of value in doubtful cases and in prosecutions for minor offenses,' but is entitled to be considered when the crime charged is atrocious, and when the testimony tends very strongly to establish the guilt of the accused. It will sometimes of itself create a doubt, when without it none would exist.”

The charge of the court upon this subject in this case must, of course, be taken all together, and the only question is whether, so considered, ihgave to the jury proper instructions as to the weight which they should attach to that class of evidence. They were told that evidence of good character was not a defense to crime; that, if they were satisfied beyond a reasonable doubt of the guilt of the defendant, his previous good character was no-defense; and we think the charge substantially instructed the jury that good character was only to be considered when a reasonable doubt might arise on the evidence as to the guilt of the defendant. This certainly was not such a charge as the defendant was entitled to in a case like this. He was entitled to have the jury instructed as to the full'weight which should be given to evidence of that character. People v. Wileman, 44 Hun, 187; 8 St. Rep. 300. The charge as given is clearly erroneous.

The complaint is made by the defendant of the language of the court in regard to a reasonable doubt. To this portion of the charge no exception seems to have been taken. Whatever may be the origin of the doctrine that the guilt of the defendant must be proved beyond a reasonable doubt,, and whatever opinions may exist as to the original necessity or usefulness of such a rule, it is now 'too firmly fixed in the jurisprudence of this state to be overthrown. In every case the prisoner upon trial is entitled to liave^ an instruction that his guilt must be proved beyond a reasonable doubt. Code Or. Proc. § 389. Such a doubt is not a mere guess or surmise that the man may not be guilty; it is such a doubt as a reasonable man might entertain after a fair review and consideration of tlie ev'idenca It 'is one which arises from the evidence and its character, or from the absence of satisfactory evidence in the case. If, upon a consideration of all the evidence in the case, with-sunh presumptions and inferences as fair minded and intelligent men have a right to draw from the facts which have been established, the jury have such a conviction of the defendant’s guilt that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to himself, they may safely say that the case is established beyond a reasonable doubt. People v. Guidici, 100 N. Y. 503; People v. Walworth, 4 N. Y. Cr. Rep. 355, 372; Miles v. U. S., 103 U. S. 304, 309, 312. Whether the court in this case correctly laid down the rule to the jury on this subject it is hardly necessary to consider.

Because of the erroneous charge upon the question of character we feel ourselves contrained to reverse the judgment and order a new trial.

All concur.