author: Andrews, Ch. J.

text:
    Henry Karst, Resp’t, v. George A. Gane et al., App’lts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Chattel mortgage—Priority oe lien.
    In January, 1890, plaintiff recovered judgments upon notes made by the firm of B. & M. prior to September 25, 1889, and which matured in the last three months of that year, and levied upon certain machinery of B. & M. then in possession of the latter. On September 25th B. & M. executed to the defendants a chattel mortgage upon the same machinery, but it was not filed until November 7th. held, that the mortgage of defendants was invalid as against these executions.
    3. Same.
    There is nothing in the language of chapter 279 of the Laws of 1883 confining the meaning of the word “creditors,” or restricting its natural sense, or which indicates an intention to distinguish between a creditor who became such before and one who became a creditor after the execution of the mortgage.
    8. Same.
    ■ The failure to file the mortgage for six weeks after its execution let in the lien of the executions on the judgments in favor of the plaintiff obtained after the filing of the mortgage, and gave them a preference over the mortgage.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment of special term and ordering new trial unless plaintiff stipulated to deduct the amount of certain notes.

      Thos. J. McKee, for app’lts; Fred. W. Hinrichs, for resp’t.

       Affirming 41 St. Rep., 361.

   Andrews, Ch. J.

This is a contest between the plaintiff, a judgment and execution creditor of the firm of" Barr & Miller, and the defendants George A. Gane and Thomas T. Gane, mortgagees of chattels, as to priority of lien.

In January, 1890, the plaintiff recovered judgments against Edward Barr and Herman 0. Miller, upon notes made by the firm of Barr & Miller during the year 1889, but prior to September 25, 1889, and which matured in October, November and December of that year. Executions were issued upon the judgments, and levied upon certain machinery’ of Barr & Miller, then in their possession. On September 25, 1889, Barr & Miller executed to the defendants, George A. Gane and Thomas T. Gane, a chattel mortgage on the same machinery, subsequently levied upon under the plaintiff’s execution, to secure the payment of $2,500 on demand. This mortgage was not filed until November 7, 1889. The bona ftdes of the debts of the respective parties is conceded. It is also conceded that there was no change in the possession of the machinery, but it remained in the possession of the mortgagors from the execution of the mortgage until taken by the sheriff under the executions in favor of the plaintiff.

The sole question is whether the mortgage of the defendants is valid as against these executions.

It is claimed in behalf of the plaintiff that he was a creditor of Barr & Miller, within § 1, chap. 279 of the Laws of 1833, and that the mortgage is void as to him, by reason of it not having been filed until November 7, 1889, six weeks after its execution.' It is claimed in behalf of the defendants that the word “ creditors,” in the act of 1833, only applies to a person whose debt originated after the execution of the mortgage, and during the default in filing, and that, by the true construction of the act, a mortgage of chattels is not void for an omission to file the same as against a creditor whose debt antedated the execution of the mortgage, or, at least, that it is valid as against an antecedent creditor, provided it is filed before he acquires a lien upon the mortgaged property. It is to be observed that the limited meaning of the word “ creditors,” in the act of 1833, insisted upon in behalf of the defendant, has no support in the literal reading of the act. The first section declares that a mortgage of chattels which shall not be accompanied by an immediate delivery and an actual and continued change of possession of the things mortgaged, “ shall be absolutely void as against the creditors of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed as directed in the succeeding section of the act” There is nothing in the language of the section confining the meaning of the word creditors,” or restricting its natural sense, or which indicates an intention to distinguish between a creditor who became such before, and one who became a creditor after, the execution of the mortgage.

The section speaks of “ subsequent purchasers and mortgagees.” There was a very good reason for this, since a prior purchaser or mortgagee would stand on his paramount right and needed no protection or would have the means of pro tectian against a subsequent mortgagee. The use of the word “subsequent,” as applied to purchasers or mortgagees, may not be of great importance in ascertaining the meaning of the word “ creditors," but it indicates that the legislature had in mind, and expressed in respect to one class of persons to be protected by the statute, the time when their rights accrued with reference to the execution of the mortgage.

The act of 1833 was supplementary to the provisions of the Revised Statutes relating to fraudulent sales and mortgages of goods and chattels. By 2 Rev. St., 136, § 5, a sale, assignment or mortgage of goods or chattels, where possession is retained by the vendor, is made presumptively fraudulent and void “as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith,” using substantially the same language as did the statute of 1833. The following section (6) defined the meaning of the word “ creditors," used in § 5, declaring that “ the word, creditors, as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods or chattels shall remain in his possession or under his control.” The act of 1833 is in pari materia with the provisions of the Revised Statutes, but added additional protection against fraudulent mortgages of chattels by requiring them to be filed, and making the presumption of fraud from the retention of possession by the mortgagor conclusive instead of rebuttable, as under the Revised Statutes, unless the mortgage should be filed as therein provided.

The word “ creditors ” in the section of the Revised Statutes (§ 5) as defined by § 6, plainly includes all creditors who are such whilst the goods or chattels remain in the possession of the vendor or mortgagor, irrespective of the time when they became such, that is, whether before or after the sale or mortgage.

There is, we think,’ much force in the view taken by the supreme court in the fifth department, Vreeland v. Pratt, 17 N. Y. Sup., 307 ; 42 St. Rep., 582, Dwight, J., writing the opinion, that the word “ creditors,” in the act of 1833, has the same meaning as in the section of the Revised Statutes referred to, and that these sections may be resorted to, if any doubt exists, to explain the meaning of the word in the act of 1833.

The argument, from the policy of the act of 1833, to the effect that it had for its object the prevention of tire setting up of secret mortgages' against persons dealing with the mortgagor on the faith that his property is not then incumbered, and that creditors whose debts were contracted before the execution of the mortgage were not misled, because at the time the credit was given no mortgage was in existence and, therefore, they are not ■within the purview of the act, ignores the broad and unqualified meaning of the word “creditors” used in the statute. In interpreting a statute its object and policy, where the meaning is ambiguous, may be resorted to in aid of the interpretation, and is frequently of great importance. But in recent times courts are less disposed than formerly to depart from or qualify the plain words of a statute in favor of what is termed equitable construetian, in order to take particular cases out of its operation upon some supposed view of policy not indicated in the act itself. It was the plain purpose of the act of 1833, disclosed on its face, to require publicity to be given to chattel mortgages for the protection of the claims of persons mentioned therein.

It is undoubtedly true that one and perhaps the most important purpose of the act, so far as it applies to creditors, was to protect persons giving credit to the mortgagor in ignorance of the existence of a mortgage upon his property. But the legislative policy was broader than this single purpose. It is impossible to say that only creditors who became such during the existence of a mortgage may be injured by keeping the mortgage secret. It certainly is not improbable that in many cases antecedent creditors may be lulled into security and forbear the collection of their debts at maturity by the apparent unincumbered possession and ownership by the debtor of property covered by an undisclosed mortgage. The statute prescribes a general rule which must be observed in order to entitle a mortgagee to assert his lien as against creditors, and, although a creditor may have notice of an unfiled mortgage at the time the credit is given, yet it is held that as to a creditor with notice, such a mortgage will be postponed to the lien of judgment and execution in his favor upon the debt so contracted. This was held in Sayre v. Hewes, 32 N. J. Eq., 652, by the K jw Jersey court under a statute similar to that in this state The same rule has been declared in our courts. Farmers’ Loan & Trust v. Hendrickson, 25 Barb., 484 ; Steuens v. Buffalo & N. Y. R. R. Co., 31 id., 590. In these cases the act was extended to cases not within the policy which, it is claimed, is the sole reason for the legislation in question.

There are two cases in this court which distinctly held that the word “ creditors ” in the act of 1833 embrace creditors whose debts were created prior to the mortgage. They are Thompson v. Van Vechten, 27 N. Y., 568, and Keller v. Paine, 107 id., 83 ; 11 St. Rep., 330. One of the questions in Thompson v. Van Vechten was as to priority of lien between a mortgage to one Shaw (on a vessel) executed February 25, 1854, and not filed until July 12, 1854, and never refiled, and alien by execution upon a judgment in favor of one Schoonmaker against the mortgagor, recovered March 30, 1855, on a debt which was contracted January 9, 1854, before the execution of the mortgage. It was held, that the lien of the execution had priority, because of omission to refile the mortgage pursuant to the third section of the act of 1833, which declares that a mortgage filed in pursuance of the act shall cease to be valid “as against the creditors of the person making the same, or against subsequent rmrchasers or mortgagees in good faith,” unless refiled, etc. It is plain that the word “ creditors ” in the third section has the same meaning as the same word in the first section, and if it embraced antecedent creditors in the one case, it did also in the other. It may be noticed in passing that Judge Denio, in considering the question whether an antecedent creditor was within the protection of the third section of the act, affirmed this proposition on the ground that “ he may give further time to payment or omit to enforce his demand if he finds that the lien of the mortgage is not kept up, where he would have acted differently upon learning that it was continued,” a reason which would seem to be equally applicable where the default was in not filing the mortgage originally. The case of Keller v. Paine was a contest between the mortgagee of a canal boat and an attachment creditor. The mortgage was executed in Pennsylvania, March 24, 1881, and was immediately sent by an agent of the mortgagee to be filed in the proper town clerk’s office of the town where the boat lay, the mortgagor and mortgagee being nonresidents. The mortgage was filed in the town clerk's office March 25, 1881, but was not filed in the auditor’s office as required by chap. 412, Laws of 1864. The boat was attached by a creditqr of the mortgagor for a debt existing prior to the mortgage and the attachment was levied on the same day (March 25, 1881), but a short time before the filing of the mortgage in the town clerk’s office.

It was held that the mortgage was void against the attaching creditor, both under the statute relating to chattel mortgages and the act of 1864. This is an adjudication that the word “creditors” in the act of 1833 embraces creditors whose debts arose prior to the mortgage.

We, therefore, conclude, upon the language of the act and upon authority, that the plaintiff was a creditor within the act, although his debt existed when the mortgage to the defendants was executed. A simple contract creditor is as much within the protection of the statute as a creditor whose debt has been merged in a judgment. This was held in Southard v. Benner, 72 N.Y., 424, in respect to the meaning of the word “creditors" in the section of the Revised Statutes relating to fraudulent sales, assignments or mortgages of goods and chattels. The same point was adjudged as to the meaning of the same word in the statute of 1833, in the case of Thompson v.VanVechten, supra. There was a question in that case of priority of lien as between the Shaw mortgage and the levy of an execution on a judgment in favor of the Westchester County Bank, recovered March 16, 1855, upon a debt which arose June 10, 1854, during the time when the omission to file the mortgage existed. Judge Denio writing the opinion, referring to the argument that the word “ creditors ” in the statute of 1833 embraces only creditors who have obtained judgment and execution during the default in filing the mortgage, said that if this were so the act would not, in many cases, accomplish any beneficial purpose. The mortgage, he observed, cannot be legally questioned until the creditor clothes himself with a judgment and execution, or with some legal process against the property, for creditors cannot interfere with the property of the debtor without process. See, also, Southard v. Benner, supra.

The simple contract creditor runs the risk of having his remedy to assail the mortgage defeated by a bona fide transfer of the property by the mortgagor to the mortgagee in payment of the mortgage before he has obtained judgment and execution, or any lien on the property. Kitchen v. Lowrey, 127 N.Y., 59; 37 St. Rep., 913.

It remains to be considered whether the failure to file the mortgage to the defendants for six weeks after its execution lets in the lien of the executions on the judgments in favor of the plaintiff, obtained after the filing of the mortgage, and gives them a preference over the mortgage. The second, section of the act of 1833 prescribes how and where chattel mortgages shall be filed, but it does not, in terms, prescribe the time within which this is to be done. The purpose of the filing is indicated by the last clause of the section, which directs that the mortgages, when filed in the proper offices, shall “ be kept there for the inspection of all persons interested.” While the act does not in terms require an immediate filing of a-mortgage in order to make it valid against creditors or subsequent mortgagees or purchasers, the purpose of the act can only be satisfied by prompt and diligent action on the part of the mortgagee in filing his mortgage. The filing stands as a substitute for immediate delivery and an actual and continued change of possession of the property, and avoids the conclusive presumption of fraud which would otherwise attach to the instrument under the act of 1833, in the absence of delivery and the change of possession of the mortgaged property. Some time will necessarily elapse between the execution and filing of the mortgage. Where it appears that due diligence was exercised in filing the mortgage, and there was no unnecessary delay and no actual intervening lien has been acquired, there would seem to be no ground upon which subsequent lien holders could question the validity of the mortgage under the statute of 1833. The filing, under these circumstances, would be immediate and make the mortgage valid as against liens subsequently acquired. But a delay of six weeks in filing the mortgage is not a a compliance with the act. There were no circumstances rendering so long a delay necessary. There can be no doubt that if, during the delay in filing, alien had been acquired by a creditor, the mortgage as to such lien would be void. The mortgage was, however, filed before the plaintiff’s judgments -and executions were obtained. This did not restore the validity of the mortgage as against creditors whose debts were in existence during the default in filing the mortgage, although judgments or executions were not obtained until after the mortgage was in fact filed. This was also one of the points decided in Thompson v. Van Vechten, supra, in awarding priority to the Westchester County Bank judgment over the Shaw mortgage. The debt to the bank was created intermediate the execution and filing of the mortgage. The bank judgment was obtained March 16, 1855, and execution levied March 17, 1855. It-was claimed that the delay in filing the mortgage was only available to creditors who obtained judgments and executions during the period of delay. But this claim was overruled. See also Marsden v. Cornell, 62 N. Y., 215. It was in discussing this point that Judge Denio stated that the object of the act of' 1833 was to protect persons dealing with the mortgagor, without knowledge of the existence of a secret lien on his property. This was, doubtless, one of the purposes, but, as has been said, not the sole purpose of the act. Judge Denio in dealing with the question of priority between the Shaw mortgage and the Schoonmaker execution indicates himself a broader purpose. He held that the omission to refile the mortgage made it void against the Schoonmaker judgment and execution founded on a debt antedating the mortgage, because such a creditor “may give further time of payment or omit to enforce his demand if he finds the lien of the mortgage is not kept up.”

The conclusion we have reached in this case would have justified the court in the case of Thompson v. Van Vechten in sustaining the priority of the lien under the Schoonmaker execution, on the ground of the original default in filing the mortgage. But having found another ground for sustaining the priority of the lien, this point was not discussed or decided.

We are of opinion that the judgment below proceeded upon a true construction of the act of 1833, and it should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur, except Maynard, J., not voting.


source: Caselaw Access Project

author: O’Brien, J. Gray, J.

license: Public Domain

text:
    Anna Maria Doyle, App’lt, v. The Metropolitan Elevated Railroad Co. et al., Resp’ts.

      (Court of Appeals,

      Filed January 17, 1893.)

    ■Railroad—Elevated—Reference. '
    In an action for an injunction and for damages to property caused by the operation of defendants’ elevated railroad, the trial court, of its own motion, and against objection, ordered a reference to take testimony necessary to ascertain the value of the fee and amount of rental loss. Held, that the court did not possess the power to direct a compulsory reference in the case for such a purpose under any provision of the Code.
    (Gray, J., dissents.)
    Appeal from judgment of Hew York common pleas, affirming order denying resettlement of an order of reference, and reversing order denying motion to set aside order of reference, and vacating the reference.

      William G. Peckham, for app’lt; Julien T. Davies, for resp’ts.

       Affirming 49 St. Rep., 118.

   O’Brien, J.

On the trial of this action, after hearing some proof in regard to the plaintiff’s title to the premises described in the complaint, and the existence, location and operation of the defendants’ railway in front of the premises, the court, against the objection of defendants’ counsel, directed an order to be entered appointing a referee to take testimony as to the value of any of the easements and property taken, appropriated or interfered with by the defendants, for the maintenance and operation of the railway in front of plaintiff’s premises, and as to the amount of the rental loss, if any, which the plaintiff had sustained therefrom, and to report the same to the court, with his opinion thereon; but, as to the value of the fee, the referee was directed to estimate only on the impairment of light, air and access. The order further provided that upon the filing of the referee’s report either party might apply to the judge before whom the trial was commenced, and who presided when the order was made, upon two days notice, for the continuation and closing of the trial. The action was equitable in its nature. A property owner seeks to enjoin the maintenance and operation of the railway in front of her premises, and to recover the damages that she has sustained in consequence of its erection and operation, by loss of rents and permanent depreciation in value of her real estate. The form of the action and the principles upon which it rests have recently been much discussed, and are familiar to the courts and the profession. The complaint alleged, among other things, that, in consequence of the wrongful acts of the defendants, which were particularly set forth, the fair market value of the plaintiff’s premises was greatly diminished, and that the rental value was for the same reason diminished to the extent of $3,500 annually since the erection of the railway, and that the total damages which the plaintiff had sustained from these causes were, at the time of the commencement of the action, $36,000. These allegations were all put in issue by the answer of the defendants. The relief demanded was that the amount of the plaintiff’s damages, in consequence of the existence and operation of the railway structure in front of her premises in the street, be ascertained and judgment against the defendants awarded her therefor, and that the defendants be perpetually enjoined and restrained from making any further erections in the street in front of the plaintiff’s premises, and from further obstructing and incumbering the street, and from maintaining, continuing or operating the railway, and that they be compelled, by the judgment of the court, to remove the same. The general term has reversed the order, on the ground that the court did not possess the power to direct a compulsory reference in the case for such a purpose. The arguments upon the appeal suggest two questions:

1. Whether power to make the order has been conferred upon the court by any provision of the Code; and, 2. whether the legislature, under the provisions of the constitution, has power to confer such authority upon the courts.

In regard to the last question it is sufficient to say that we do not think a decision of it is necessary to the determination of this appeal. It cannot be doubted that the constitution has imposed some restraints upon the power of the legislature to provide for taking the testimony in an equity case by reference, but it is not so easy to fix the precise limits of legislative power in that regard. This results from the nature of the provisions inserted in the constitution of 1846, and the condition of the law on the subject as it existed before that time. The constitution abolished the court of chancery, and undertook to reform the tedious and expensive methods of taking testimony in equity cases that existed under it, through masters and examiners. It provided that “ the testimony in equity cases shall be taken in like manner as in cases at law,” art. 6, § 8 ; abolished the office of examiner in chancery, art. 14, § 8, and enacted that, “ except Its herein otherwise provided for, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised. Art 6, § 8. The courts have frequently referred to the change produced by these provisions of the constitution with respect to the power of the courts to direct references for the purpose of taking testimony, and incidentally to the power of the legislature to authorize them, though the effect of the change has never been pointed out with much precision. Phillips v. Gorham, 17 N. Y., 273; Farmers' National Bank v. Houston, 44 Hun, 567; 8 St. Rep., 557; Sullivan v. Sullivan, 41 N. Y. Sup. Ct., 525; Rathbun v. Rathbun, 3 How. Pr., 139; Draper v. Day, 11 id., 441.

x When there are other questions in a case that determine the decision without challenging the constitutional validity of a statute, or instituting an inquiry as to the limitations upon the power of the legislature, it is best to let the decision rest upon the other questions, and leave the discussion as to the power of the legislature over the subject to some occasion when it becomes necessary to the decision of the case. If the legislature has not in fact assumed to confer power upon the courts to make such an order as that now under review, then this appeal must fail. Whatever power has been conferred to order references to take testimony is to be found in certain sections of the Code to which reference will now be made. Section 827 authorizes special references in certain matters, but obviously does not authorize a reference to take testimony in an action after issue joined, or to dispose of any issue arising in a litigated case. Section 1011 provides for a reference by consent in any case, and to such references only. Section 1013 provides for compulsory references in actions at law or in equity, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law. It confers no power to order a reference for the purpose of taking testimony, but to try and determine or find some fact involved in the issue. Moreover the action must be of such a character that the trial will involve the examination of a long account, and this account must be the immediate object of the action. It must be directly, not collaterally involved. Camp v Ingersoll, 86 N. Y., 433 ; Randall v. Sherman, 131 id., 669 ; 43 St. Rep., 923; Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843.

Clearly, there is no authority to be found in this section for the appointment of the referee in this case, and the plaintiff’s counsel does not attempt, as we understand him, to sustain the order under any of its provisions.

Section 1015 authorizes a reference upon incidental questions in a case, not to take testimony merely, but “ to take an account and report to the court thereon, either with or without the testimony.” These words imply a power in the referee to decide, or, at least, to make findings, though the ultimate decision remains with the court. It will be borne in mind that there is no clain-' in this case that an account is involved, and no reference was made to take an account, but to reduce the testimony that the parties might offer to writing and report it to the court with an opinion. The referee cannot decide any question, and the court, in making its decision upon the question of damages, must act upon the tesmony reported to him by the referee without seeing or hearing the witnesses. In the trial of disputed questions of fact the apparent' intelligence and candor of the witnesses, on the one side or the other, is frequently a most important element in the process of ascertaining the truth, and parties are entitled, when .not otherwise prescribed by law, to the benefit of the appearance of the witnesses, and their examination in the presence of the judge who is to pass upon the weight and effect of the testimony and finally determine the question. If, in a case of this kind, the testimony can be taken before a referee and passed upon by the court, the expense and delays, which were looked upon as intolerable evils under the old chancery system, have been practically continued. The last clause of § 1015 remains to be considered, as that was evidently the provision under which the order of reference in question was made, and that is the principal authority now invoked to sustain it The clause authorizes a reference in an equity case “ to determine and report upon a question of fact arising at any stage of the action upon a motion, or otherwise, except upon the pleadings.” This clause contains no authority to order a reference to take testimony, but to determine a question of fact and report such determination to the court. The power to decide as to the weight and effect to be given to the testimony of witnesses is thus left with the judicial officer in whose presence the examination was had.

This view alone would exclude the power which the learned trial judge exercised in this case. But the words of the exception at the end of this clause -constitute an important limitation upon the power to refer even questions of fact for determination; as no question can be referred which arises on the pleadings, the reference must be to determine some fact that arises collaterally, not directly. As to all disputed questions of fact upon which the parties have directly joined issue, and which arise upon the pleadings, the trial must be had before the tribunal which is to make the decision in the case. In this case the question of damages, with respect to which the testimony was to be taken before a referee, was one of fact, and even if by any construction it could be held that this last clause authorized a reference,merely to take testimony, which is not perceived, there would still remain the objection that the question arises on the pleadings, and is one of the direct and principal issues in the case. While the action assumes an equitable form, and is sustained upon equitable principles, it is impossible to lose sight of the fact that its main purpose and object is the recovery of the damages to plaintiff’s property. The injury and consequent loss are fully set forth in the complaint and denied by the answer, and the proof of damages was an indispensable element of the plaintiff’s- case, as it cannot be supposed that a court of equity would entertain jurisdiction to restrain a trespass that was not shown to have produced any damage or loss to the plaintiff. This aspect of the case is not changed by the circumstance that in this form of action the issue of damages is incidental to the general jurisdiction of equity to grant relief by injunction. It is true that equity incidentally assumes die jurisdiction necessary to administer complete justice an¿1 draws into the case all questions that might have been the subject of successive actions at law; still the damages constitute a direct and vital issue in the case which, in every just sense, arises upon the pleadings. Galway v. M. E. R. Co., 128 N. Y, 132; 40 St. Rep., 145; Roberts v. N. Y. E. R. R. Co., 128 N. Y., 455; 40 St. Rep., 454; Lynch v. M. E.. R. Co., 129 N. Y, 274; 41 St. Rep., 541; Shepard v. M. R. Co., 131 N. Y., 215; 43 St. Rep.; 117. If authority is necessary to sustain this proposition, it is fairly deducidle from the reasoning and general doctrine of the above cases, though this precise question was not involved.

The learned counsel for the plaintiff has referred us to numerous cases in various courts and to works on practice as authority for the reference made in this case. To review them all and attempt to point out their legitimate bearing upon the question that we are now concerned with would be impracticable and would justly subject this opinion to the charge of prolixity. In discussing the power to order references under some specific section of -the Code in a particular case the limitations of other sections applicable to' other cases have not always been marked with accuracy, and hence dicta may be found that would seem to favor the plaintiff’s contention, but with the benefit of full argument on the question involved in this appeal, and after as careful an examination as we have been able to give it, we think that there is no authority in the Code for the order made at the trial in this case.

Among the cases cited there are two in this court, much relied upon by plaintiff’s counsel, that, with respect to their bearing upon the question, require some notice.

In Camp v. Ingersoll, supra, the action was upon an award of arbitrators, whereby the defendants were required to execute to the plaintiff’s assignor their bond obligating themselves to pay the value of certain shares of stock, to be ascertained in the manner designated in the award. A compulsory reference was ordered on the ground that the value of the stock could not be ascertained without an examination as to the assets of the corporation that had issued it, and hence a long account was involved. This court reversed the order on the ground that the action was upon the award, and the examination into the condition of the corporation was a collateral matter. The soundness of this decision cannot be questioned. Judge Folger was impressed with the difficulty of trying the question before the court, and suggested that in the end the court might relieve itself of the tedium of such a trial by a reference of that question, under the last clause of § 1015, to take the testimony and report. What the trial court could do in a certain contingency was a question not then before this court. But if, as the learned judge suggested, the case was one in equity, and an inquiry as to the corporate assets was collateral and did not arise upon the pleadings, a reference under § 1015 was within the power of the court. So that the case really furnishes no authority to justify the order in the case at bar.

Drexel v. Pease, 129 N. Y., 96; 41 St. Rep., 236, was a peculiar case, but the order of reference was after an interlocutory judgment and was upheld in the court under § 1013 upon the principle that an account was involved in the case. Moreover, the court was of the opinion that the parties who appealed from the order had taken the benefit of it and virtually assented to that mode of disposing of the question. The last paragraph of the opinion assumes that there was an account involved within the meaning of § 1013. The plaintiff had obtained all the relief demanded and was out of the case. The controversy was between defendants, and the issues tried were made by their answers. It became necessary to state the account of a receiver, who was not a party to the action, to ascertain the value of goods shipped by one merchant to another for sale, and the consideration of certain debts held by banks upon which they had obtained attachment liens. It was held that a long account was, therefore, involved, and in such cases the power to order a reference under § 1013 is clear. It may be that § 1015 also authorized such an order, as it was made after the interlocutory judgment, and the account was necessary for the information of the court, but, in any event, it is not authority upon the question now under consideration. In the case at bar it is not claimed that an account is involved. It was a compulsory reference to take testimony as to damages before any other question in the case had been decided.

The decision of the general term reversing the order is right, and should be affirmed, with costs.

Gray, J.

(dissenting.)—I am not able to perceive any satisfactory reason for overruling (for I do not think we can distinguish) the authority of Camp v. Ingersoll, 86 N. Y., 433, where the deliberate opinion of this court seems to give even ampler warrant for the practice now disapproved. I nave supposed that under our decisions the allegations of damage did not strictly raise questions of fact, or were, or were considered otherwise than as evidencing the substantial nature of the injurious acts complained of and to warrant the equitable relief, which was the issue and the object of the action. JSTor am I able to see any good reason for depriving the courts of a very useful and convenient power, which is obviously within the spirit of the Code; if not, in the view of my brethren, technically comprehended in its langnage. Therefore I cannot concur.

Order of general term affirmed, with costs.

All concur, except Gray, J., who reads memorandum for reversal.


author: Gray, J.

text:
    The People, Resp’ts, v. Carlyle W. Harris. App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Homicide—Evidence—Cause oe death.
    Upon the trial of defendant for murder, the symptoms and the subse-

      quent revelations by autopsy and analysis were those which invariably accompany and characterize poisoning by opium or morphine. Held, that the question of what was the cause of death was one, the determination of which, upon sufficient evidence, belonged to the province of the jury, and this court has no right and there is no reason to interfere with this branch of the case.
    2. Same—Circumstantial evidence.
    All that should be required of circumstantial evidence is that there shall be positive proof of the facts from which the inference of guilt is to be drawn and that that inference is the only one which can reasonably be drawn from those facts.
    3. Same.
    Evidence is not to be discredited because circumstantial. It has often more reliable elements than direct evidence. Where it points irresistibly and exclusively to the commission by the defendant of the crime a verdict of guilty may rest upon a surer basis than when rendered upon the testimony of_ eye witnesses. If taken together it leads to a conclusion of guilt with yhieb no material fact is at variance it constitutes the higher form of evidence, which the law demands where the life or liberty of the defendant is at stake, and neither jurors nor the court can conscientiously disregard it.
    4. Same—Privileged communication—Physician.
    Dr. T., an uncle of deceased, with whom she remained for two months and who operated upon her and removed a dead child of five months, was allowed to testify to a conversation with defendant, which tended to prove that defendant was guilty of another crime, abortion. Held, no error; as witness was not employed by defendant, did not acquire any important information from him, which he was not already possessed of, or which was _ necessary to enable him to act in a professional capacity, and the privilege was not conferred to shield a person charged with the murder of the patient.
    55. Same—Evidence op previous bad character.
    While evidence merely to show previous bad and vicious character is inadmissible against one on trial for the commission of a criminal offense, if the depraved acts offered to be shown evidence or throw light upon the motive, they become admissible.
    Appeal from judgment of court of general sessions of the peace of the city and county of New York, convicting defendant of murder in the first degree, and from order denying motion for new trial.

      William F. Howe, for app’lt; De Lancey Nicoll, disfc-atty., and Henry B. B. Stapler, asst, dist-atty., for resp’ts.
   Gray, J.

The defendant was charged with the crime of murder in the first degree, committed upon Helen Neil Potts by administering to her morphine in a large enough quantity to cause her death. His indictment was followed by a trial in the court of general sessions of the peace of the city and county of New York; at which he was convicted, upon the verdict of the jury. From the judgment of that court and from the order denying his motion for a new trial he appeals to this court. He says that justice demands that he should be granted a new trial for errors which he points out as having been committed upon his trial, and because his conviction was not justified by the evidence.

A careful reading of the evidence contained in this very voluminous record and a conscientious consideration of the facts disclosed must inevitably lead to the formation of an opinion that the verdict of the jury was not only justified, but that no other conclusion could have been reached by the fairest mind. The death of the young woman was not disputed; but the cause of her death was. The great bulk of this record is made up of the evidence given on behalf of the People to establish a poisoning by morphine as the cause of the death, and to demonstrate the guilt of the accused ; while the evidence in his behalf was confined to the examination of several medical experts, for the purpose of proving that the death of the deceased might be attributed to other causes than to morphine poisoning. The evidence connecting the accused with the commission of the crime charged was wholly circumstantial. There was neither testimony by some eye-witness of the giving of the poison, nor of any admission by the accused.

All evidence is, in a strict sense, more or less circumstantial; whether consisting in facts which permit the inference of guilt, or whether given by eye-witnesses of the occurrence ; for the testimony of eye witnesses is, of course, based upon circumstances more or less distinctly and directly observed. But, of course, there is a difference between evidence consisting in facts of a peculiar nature and, hence, giving rise to presumptions, and evidence which is direct, as consisting in the positive testimony of eye-witnesses ; and the difference is material according to the degree of .exactness and relevancy, the weight of the circumstances and the credibility of witnesses.

The mind may be reluctant to conclude upon the issue of guilt in criminal cases upon evidence which is not direct, and yet, if the facts brought out, when taken together, all point in the one direction of guilt and to the exclusion of any other hypothesis, there is no substantial reason for that reluctance. Purely circumstantial evidence may be often more satisfactory and a safer form of evidence ; for it must rest upon facts which, to prove the truth of the charge made, must collectively tend to establish the guilt of the accused.

For instance, if any of the material facts of a case were at variance with the probabilities of guilt, it would be the duty of the jury to give to the defendant the benefit of the doubt raised.

A fact has the sense of and is equivalent to a truth, or that which is real. It is in the ingenious combination of facts that they may be made to deceive, or to express what is not the truth. In the evidence of eye-witnesses to prove the facts of an occurrence we are not guaranteed against mistake and falséliood, or the distortion of truth by exaggeration or prejudice; but when we are dealing with a number of established facts, if upon arranging, examining and weighing them in our mind, we reach only the conclusion of guilt, the judgment rests upon pillars as substantial and sound as though resting upon the testimony of eye-witnesses. The necessity of a resort to circumstantial evidence in criminal cases is apparent in the nature of things. For a criminal act is sought to be performed in secrecy, and an intending wrongdoer usually chooses his time and an occasion when most favorable to concealment, and sedulously schemes to render detection impossible. All that we should require of circumstantial evidence is that there shall be positive proof of the facts from which the inference of guilt is to be drawn and that that inference is the only one which can reasonably be drawn from those facts.

The two questions which, upon all the circumstances detailed in the evidence, the jury had to pass upon in coming to their verdict were, in the first order, whether the deceased came to her death by morphine poisoning, and having determined that in the affirmative, then whether the defendant was guilty of the charge of having administered it to her with a deliberate intent to cause her death thereby.

The extent of the case developed by the prosecution; some peculiar features of the evidence and some apparent difficulties suggested in connection with it; the gravity of the accusation under which the accused lay, and the responsibility imposed upon us by the statute in capital cases, seem to me to demand, for a clearer understanding of the correctness of the judgment, a somewhat extended review of the facts elicited upon the trial as they relate to each branch of the case.

Helen Potts, the deceased, had entered-Miss Comstock’s boarding school, in New York city, in December, 1890, and was nineteen years of age at the time of her death. On Saturday, January the 31st, 1891, in the evening, she was with Miss Day, the principal of the school, in the sitting-room, engaged in conversation and in reading. She was and had been in good health, and seemed very cheerful and happy. • About ten o’clock Miss Day retired, and, a few minutes later, the deceased also retired to her room. Her room-mates, three young girls, returned from a concert at about half-past ten o’clock. The deceased awaked a few minutes after they came into the room, and talked with them. She said that she felt as if she was going to die; that she felt a ■choking sensation, and could not swallow; that she felt numb. She also spoke of having experienced pleasant symptoms, and of having had “such lovely dreams that she wished they would go on forever.” After they had gone to bed, they were awakened by the moans of the deceased. One of them arose, and with her hands rubbed her friend’s head; but the deceased said she could not feel the rubbing. The moans continuing, and the breathing becoming loud and hard, Miss Day was called in, about midnight. She tried to lift the deceased; found her unable to move, and unconscious, and immediately sent for Dr. Fowler, the physician of the school. He came in about fifteen minutes, and was followed by an assistant physician, Dr. Baner. The deceased was found in a state of profound coma; very cold and pale, and the surface of the skin was pale and blue, and covered with profuse perspiration. There were very labored respirations, of about two a minute, with a distinct interval between the inspiration and the expiration. The pupils of the eyes were symmetrically contracted to an almost imperceptible point, and there was no sensitiveness of the surface of the eye-balls. There was an entire inability for any voluntary motion whatever.

The two physicians immediately proceeded to apply remedies. During the night they kept up artificial respiration by certain movements of the arms; they gave injections of black coffee, and hypodermic injections of atropine, caffeine, whiskey and digitalis. They used electricity and oxygen gas; but feared to use the stomach pump, believing, because of the very labored respirations, which had become reduced to one in fwo minutes, that the use of it would destroy life.' Ho such change was indicated as had been hoped for in the use of atropine, and the only betterment apparent occurred after some three hours of work, when the respirations became more frequent. This improved condition lasted only about half an hour, when a relapse occurred, and the respirations decreased to only one in two minutes and a quarter. The patient gradually sank until eleven o’clock on Sunday morning, February the first, when she died. Towards morning the attendant physicians had called in Dr. Kerr, another physician, to aid them. The symptoms of the deceased caused Dr. Fowler to think the case one of poisoning by morphine or opium. In the room was found an empty pill box, bearing upon its label the defendant’s initials, “ 0. W. H., medical student,” and Dr. Fowler, having sent for defendant, early in the morning, asked him about it. He was told it had contained capsules, each filled with about four grains and one-sixth of a grain of sulphate of quinine and one-sixth of a grain of sulphate of morphine. Dr. Fowler told him that one-sixth of a grain, or even one grain, of morphine, could not have produced the condition; that it was one of the most profound cases of opium poisoning he had ever witnessed, and advised him to go at once to the druggist to see if any mistake had been committed in reversing the proportions of the drugs. This the defendant pretended to do ; reporting shortly afterwards that the medicine had been prepared exactly according to the prescription, which was written by him.

I have thus related the occurrences covering the period of time between the retirement of the deceased, in apparent good health and spirits, and her death; being some thirteen hours. In the account of her condition, of her various symptoms, and of the treatment and results, the testimony of the attendant physicians agrees, and they all testified, in the most positive manner, that the deceased came to her death from an overdose of morphine. They based their testimony, in that respect, upon the appearance and existence of conditions upon and in the person which negatived or precluded the possibility of any other cause of death. Dr. Fowler was a physician who had been over thirty-five years in extensive practice and whose experience covered many cases of opium poisoning. He testified that it was not an ambiguous case, and that the three stages, of a pleasurable excitement of coma and of the entire nervous prostration, with an almost entire dilation of the pupils of the eyes before death, were a group of symptoms which, in connection with other observable conditions of the patient, enabled him to state as a fact that she had had an overdose of morphine. To quote his language: “ the whole condition from beginning to end was a picture of morphine or opiate poisoning, and a picture of nothing else." To questions embodying the facts relating to the conditions and medical treatment preceding the death of the deceased, addressed to physicians of high standing and experience, called as experts, they agreed in the expression of their opinions, that the cause of death was opium poisoning, ajad that the symptoms, as a group, indicated death from no other cause.

An autopsy was made some fifty-five days after death, in which the examination of the body was remarkably facilitated by its good state of preservation, a circumstance due to the fact that the body, having been embalmed, had been interred in a brick vault kept dry by the gravelly soil surrounding it. Two experienced physicians, accompanied by an experienced chemist, were present at the disinterment and at the autopsy following it. The physicians testified to finding no evidence of disease in the heart, or kidneys; nor were there any conditions of pregnancy. There was the congested appearance of the brain, which is described as a post-mortem evidence of opium poisoning. The chemical expert removed certain portions of the body, necessary to his proposed examination, and an elaborate analysis which he testified to in detail and at great length resulted in the finding of morphine in the contents of the stomach and in the membrane, and an absence of quinine in detectable quantities. It was testified to that quinine is as stable as morphine and should have been found, if it had been taken in similar quantity. It also appeared that the fluid used for the embalming contained no morphine. It may be observed, in this connection, that as the deceased lived for twelve hour’s after being taken ill and as the absorption of morphine is very quick, the finding of morphine in the analysis of the contents of the stomach would be a fact significant of the taking of an excessive dose of that drug. A minimum dose to produce the conditions narrated of the deceased would be, according to the evidence, from two to three or four grains. In connection with all this evidence of symptoms during the attack; of the results of the autopsy and of the opinions of medical experts, we have certain other facts bearing in an important degree upon the question. The deceased was described as a young woman of fine and healthful appearance and with a well nourished body. Excepting sick headaches, she had not been a sufferer from ill health, and there had been no evidence, and none was subsequently discovered, of any organic disease. That she had no constitutional idiosyncrasy as to morphine would seem well evidenced from her having been given, during the previous summer, in her illness, doses of one-quarter of a grain of morphine every three hours for some twelve hours and one-" sixth of a grain thereafter every four hours for twenty-four hours. Furthermore, during some ten days previous to her last illness, she had taken three doses of one-sixth of a grain each, compounded with quinine, under a prescription of the defendant. The defendant endeavored, by the cross-examination of the witnesses for the People, to establish the theories of uraemic poisoning from a diseased condition of the kidneys; or of a hemorrhage of the pons varolii, a lower part of the brain. He also, in his own behalf, examined witnesses called as medical experts, who, in answer to questions embodying the same facts as propounded to the plaintiffs’ witnesses, testified that no-accurate opinion could be given of the cause of death aud that the symptoms were compatible with various conditions. He-endeavored to cast a doubt upon the reliability, or the correct ness, of the results of the autopsy and of the chemical analysis of the contents of the stomach. In connection with the possible existence of kidney disease, he sought to show that, with a constitutional idiosyncracy or intolerance for morphine, the effect of an ordinary dose of morphine would be to intensify the action of the drug and to produce symptoms similar to those observed. Without, however, discussing these theories in detail, and. while fully alive to the fallibility of the opinions of medical practitioners, and being conscious of the inexactness of medical practice as a science, I am convinced that the jury could not have come to any other conclusion upon this evidence than that the deceased came to her death by morphine poisoning. While, undoubtedly, cases of death do occur of which an. autopsy may not reveal the causes, and while the evidence of witnesses did show that there were instances of death from other causes than that of morphine poisoning where some symptoms were exhibited similar to those observed in this instance, the group of these peculiar symptoms, which are admitted to belong to narcotic poisoning, considered with the proof of a constitutional tolerance for the drug, and with the positive testimony as to the discovery of morphine by subsequent chemical analysis, gave a basis for a judgment as to the cause of death which I see no way of doubting or of disturbing. I may add that, in my opinion, which I derive from a careful consideration of the professional evidence given, the theories of uraemicpoisoning, or of the hemorrhage in the brain, suggested, were contradicted either by the actual combination of symptoms or from the absence of essential symptoms. I may instance that, as I understand it, the fact of the deceased being able to speak with clear articulation and rationally when her room mates returned and awaked her from her sleep is significant, and something which is not deemed possible where a person is attacked with uraemic coma, or by hemorrhage of the pons in the brain; while quite possible in the first stage of morphine narcosis. The sense of exhilaration first noticed, from her remark about having such pleasurable-dreams, would not seem to comport with any disease of the brain, or with uraemic poisoning. That symptom, with the comatose-condition ensuing, with the symmetrical contraction of the pupils of the eyes to an almost imperceptible point, and their lack of sensitiveness, and with the peculiar respirations, were all symptoms usually found together in narcotic poisoning. The determination as to the cause of death can rest, in my judgment, safely upon a group of symptoms which invariably accompany and characterize poisoning by opium or morphine, upon the subsequent revelations by autopsy and analysis, and upon the previous constitutional conditions of the deceased, all of which together preclude .a diagnosis of any other physical disturbance differing from that made.

The question of what was the cause of death was one the determination of which, upon sufficient evidence, belonged to the province of the jury, and the statement of my opinion has been made solely to express a conviction that the necessarily prior determination of that question by the jury was altogether correct. We have -no right, and there is no reason, to interfere with the judgment on this branch of the case.

I come now to the next question, which was for the jury to determine, and that was whether the defendant was guilty of the ■charge that he had administered the morphine poison to the deceased with the intent to kill her. The evidence upon which this question turned was, as I have said, circumstantial, or indirect, and it will be necessary at some length to review it, in order to appreciate its probative force as a whole.

The defendant had formed, the acquaintance of the deceased, in the summer of 1889, at Ocean Grove, New Jersey, where her family were residing. When they moved to the city of New York, for the winter, the acquaintance continued, and on February 8, 1890, obtaining a permission from her mother to take her to see the stock exchange, he went with her before an alderman, and they were married under the assumed names of Charles Harris and Helen Neilson. He was, at the time, pursuing his studies as a medical student in that city, and he continued to visit the deceased until her family returned, in May following, to Ocean Grove. He followed them there soon afterwards. Mrs. Potts, the mother of deceased, testifies that there was a falling off in his attentions to the deceased, and a marked change appeared in his manner towards her, which seemed to worry her. A young friend of the deceased, Miss Schofield, coming to visit her in June, upon the occasion of a walk, the defendant informed her, because, as he said, the deceased had insisted upon it, that they were secretly married. Upon Miss Schofield’s saying she should beg the deceased to tell her mother, the defendant became very angry, and said she should not do so; that his prospects would be utterly ruined, and that be would rather kill her (the deceased) and himself than have the marriage made public, and expressed the wish that “ she (the deceased) were dead and he were.out of it." Later in the day he went out with the deceased; was absent for several hours and upon their return to the house, she appeared pale and ill and went directly to her room. Shortly after this, in the latter part of June, she went to Scranton, Pennsylvania, and visited an uncle, Dr. Treverton. While there Dr. Treverton discovered that she was with child and treated her accordingly; but, subsequently, was obliged to remove from her a foetus of five months formation and which had been dead for some time. After the operation she recovered her health completely, and returned, in the first part of September, to Ocean Grove.

While she was at Dr. Treverton’s, and about the end of July, the defendant came, upon a telegram from the deceased and a letter from Dr. Treverton, and remained a few days. The operation for the removal of the foetus was made while he was there.

Dr. Treverton testified to conversations with the defendant, upon the occasion of his visit, in which defendant said he had performed two operations upon the deceased, and had thought everything was removed. He boasted of his previous intrigues with other women, and of his success in not having had any trouble before. His remarks are unnecessary to be wholly repeated, from their revolting depravity; but, in the course of them, he said he had been “ secretly married to at least two young ladies,” and by one had a fine child. During the same visit he had a conversation with the witness Oliver, then visiting the Treverton’s, in which he spoke boastingly of his experience with women and of the facility with which he could gain sensual control of them. He-said that in two instances he had to overcome their scruples by a secret marriage ceremony, but was ready to stand by them.. Upon the witness asking him how he could stand by both, he answered, in substance, that there would be no trouble, as the first one was glad to be rid of him, and he went on to tell the circumstances of their relations and, as the final result, that, after a child was born, the woman expressed her disgust with him and wanted to see no more of him. To neither Treverton nor Oliver does it appear that he admitted a contract of marriage with the deceased.

While the deceased was at Treverton’s her mother joined her, and then learned of the secret marriage and what had happened.

In the first week of September, the defendant was at a hotel in Canandaigua, H. Y., under an assumed name, with a young woman named Drew. His conduct towards her was demonstrative in its affection, and her friends there, discovering their illicit, relations, compelled him to leave. During his stay witness Latham overheard a conversation between him and the Drew woman,, in which he advised her to marry some old gentleman with lots-of money, and, upon her asking what if she did, he is said to have-replied : “ Oh, we can put him out of the way," and, upon her inquiring how, he further said : “You find the old gentleman, and we will give him a pill; I can fix that.” After the return of the deceased and her mother from Scranton, they met the defendant in Hew York city and lunched together. They talked about the secret marriage, of which the mother had been informed at Scranton. He offered to satisfy Mrs. Potts of its legality, and took her to the office of his lawyer, Mr. Davison. The defendant told her he had burned the original marriage certificate, but sent for and obtained a copy from the records, and, upon Mr. Davison’s suggestion, attached to it an affidavit, made By him, stating his marriage with the deceased under assumed names before an alderman. During a conversation at the office, he asked if Mr. Potts knew of the marriage. She said it was no time to tell him then, and asked him if he had told his mother. He said: “ Ho, he would not have his family know of it for half a million of dollars." He suggested to Mrs. Potts that if she was so unhappy about the marriage, it could easily be broken, and no one would be the wiser. Upon her expressing herself in indignant refusal of the suggestion, and insisting upon a “ ministerial ” marriage, he objected to it at the time, alleging as an excuse that it would connect her name with certain club scandals, in which he was involved at Asbury Park. He promised, however, to have the ministerial marriage at any time in the future that Mrs. Potts should say. He expressed his gratification at her not pushing the matter of the marriage at that time; that if she had, he would have been obliged “ to leave everything and go west.” Upon that occasion, he suggested putting the deceased at Miss Comstock’s school to fit her, as he said, for the society in which they were to move, to which suggestion Mrs. Potts acceded. At his request, she promised to write to Dr. Treverton, and express her satisfaction with the marriage, and to prevent the doctor from making any trouble for him at the medical college, as - he had all he could do, he said, to meet the charge of keeping a disorderly house. Upon leaving the lawyer’s office, they joined the deceased at the ferry, he crossing with them. The deceased learned of her mother’s being satisfied about the marriage, and she seemed to be made very happy in consequence. In December the deceased was placed at school, and, as a friend of the family, the defendant received permission to visit her. During her visit to her home in the holidays he wrote to deceased, asking that no announcement should be made of their engagement at this time. In reply to a letter from Mrs. Potts, in the first week of January, he wrote suggesting that there should be no further question of marriage for two years longer, and that her daughter should take a collegiate course.' About January the 18th or 19th Mrs. Potts wrote to defendant, expressing herself strongly upon the hardship of her daughter’s position, with a delay of three years as an unacknowledged wife, and for no apparent reason; that her daughter’s illness at Scranton had been commented upon; that if he should die, it would be humiliating to publish a marriage under the circumstances of its contracting ; that her husband might meet Dr. Treverton and be told of the illness at Scranton and of the doctor’s doubts about a marriage. She concluded by asking him to keep his word, and to do as he had promised her, and demanded •of him to go, upon the anniversary of the first marriage, February the 8th, and be married before a minister of the gospel, and give her the certificate to hold, which she would make public at such time as she chose. To this he replied that he would do all she asked of him, if no other means of satisfying her scruples could be found. On Tuesday, January the 20th, a day after he received Mrs. Potts’ letter, the defendant went to the shop of McIntyre & Sons, druggists, in New York city, and at first ordered some capsules of sandal wood to he put up. Upon the clerk’s mentioning that it would take some time, he said he could not wait. He then handed the clerk a prescription, asking if it would take long to prepare, and, upon learning that it would take a few minutes, waited for it. It called for twenty-five grains of sulphate of quinine'and one grain of sulphate of morphine, mixed in six cap-sales, with a direction to take one before retiring. The prescription was put up by the clerk with minute care, being aided by another clerk, who checked the amount and weight of the moi, pliine, according to a custom adopted where poisons are put up The box, properly labeled, containing six capsules, each capsule containing one-sixth of a grain of morphine and four grains and a fraction of quinine, was taken by him. He never called for the sandal-wood capsules. The following day being Wednesday, January 21, he was at the school reception and saw the deceased. The testimony in the case shows that the defendant stated to both coronel1 and deputy coroner, when shown and asked about the pill box taken from the room of the deceased, that it was the one that he had given to her on Wednesday, January the 21st, and he described the prescription as above, stating that he had given it to her for headaches, and that he had given her only four of the capsules. It was also shown by the testimony of several witnesses from the medical college that in the latter part of December and the first part of January lectures were given upon opium and its effects when used feloniously. The sulphate of morphine, contained in wide-mouthed bottles, had been passed around among the students, of whom the defendant was one, and they were allowed to take it out and to handle it when they chose. After meeting the deceased at the reception on Wednesday, January the 21st, the defendant left for Old Point Comfort, Va., and did not return until a week later. While there, it appears that she wrote to him that the medicine had not relieved her headache, and rather made her worse; to which he replied, advising her to continue taking it. On Saturday, January the 31st, the deceased, her mother and the defendant met at the school and walked together. The deceased seemed perfectly well, and very bright and happy. Mother and daughter returned to the school, and, when in the bedroom of the deceased, she showed her mother the pill box, with one capsule left in it, and remarked she had been taking some capsules that Carl (the defendant) had brought her. She complained of their making her feel ill, and of her dislike to take them. She said she was tempted to toss it out of the window, and then to tell Miss Day, the principal, she had taken it. Her mother advised her to take it, remarking that quinine was apt to make one feel wretched, and that she might have been malarious.

Her mother left and then occurred' the scenes of illness and death in that night, which I have before described. The defendant was sent for towards daylight by Dr. Fowler, who, stating that he believed it to be a most profound case of opium poisoning, wished to learn what had been contained in the pill-box in her room, and which not only was the only evidence of anything like medicine about the room, but which, according to her room-mates, was the only medicine in the room that day. The defendant told him what had been its contents and of his having prescribed the capsules for headache, insomnia and the like. Dr. Fowler said 0110-sixth of a grain could not produce the condition and advised him to go at once to the druggist and to ascertain if the proportions of the drugs had been reversed. He pretended to go immediately and, when he shortly after returned, stated to Dr. Fowler that the medicine had been prepared exactly according to his prescription.

The evidence shows that he did not go to the druggist’s that morning, as supposed by Dr. Fowler; nor until eleven o’clock and after the death, when Dr. Kerr told him to go and try to get the original prescription if he could. During the time he was in the room where the deceased lay, he surprised the physician by his composure and general lack of interest, or of affection, ■except when upon her death he exclaimed “ My God, what will become of me ?” He spoke to the physicians of being “ somewhat interested in the girl,” and mentioned a possible future ■engagement to her. He asked them repeatedly if they thought he could be held responsible for the death. To them and to the coroner he said he was merely a friend of the deceased, and pretended hesitation as to her correct given names. In the evening •of the Sunday he met Mrs. Potts at the ferry house, and stated to her that her daughter had died of morphine poisoning, and represented it “ as the druggist’s awful mistake.” Mrs. Potts says, when she told him as the deceased was the mother of his ■child she must be buried under his name, that his terror was frightful and that he said it could not be ; that he would do any-|t.hing, but that the knowledge of the marriage coming at this time would destroy him ; that he would “ answer just the same if it was Queen Victoria’s daughter, she cannot be buried under my name and he urged, as a pretext, consideration for the reputation of the school. The coroner met them at the school in the evening. The defendant said he had one of the capsules prescribed for the deceased, and gave it to the coroner; telling him to analyze it and it would be found all right. Subsequent chemical analysis of it proved the correctness in preparing the prescription. The mother, in order, as she says, to get a permit to take the body, as soon as possible, out of the house and to Hew Jersey, represented falsely, as she also admitted, that her daughter had heart trouble. She left the next day with the body.- Some days later the defendant stated to Dr. Hayden, in conversation about the occurrence and when rebuked for writing prescriptions, that “ these capsules would not hurt any one and no jury would convict me, because I have two capsules which can be analyzed and be found to contain the correct dose.”

Of the druggist’s clerk, witness Powers, at an interview at the .store on February seventh when obtaining some medicine, he asked if he had seen the account of the death in the papers and whether he believed it, and, upon the witness expressing his belief that the girl died of heart disease, he said “ So do I.” They talked about the putting up of the prescription, and the defendant said there was no doubt it was all right. To Dr. Peabody, whom he went to see with an introductory letter from his medical preceptor, a ■day or two after the death, and to whom he stated the circumstances attending it, he described the prescription, and for what given, and alleged,as an excuse for keeping out two of the capsules,, that it was injudicious to put as much as a grain of morphine in a. girl’s school. Later in February, in a conversation with Dr. White, he said he did not know whether the druggist had made a mistake,' or whether there was a brain tumor, which would account fo’rtuefact that the morphine in the capsule had been the cause of death.. A few days before the coroner’s inquest, which was held on February 27th, the defendant met Mrs. Potts, and said that the coroner’s inquest would exonerate him and that he was innocent, and,, upon her remarking “ If innocent, how did she die ?” he replied that “It was the druggist’s mistake.” She asked how that could be when he had said the capsules upon being analyzed would prove it to be all right, and said the statements conflicted. Hern erely replied that he would have the capsules analyzed himself. He ascertained from her that neither Mr. Potts or Dr. Treverton knew of her fears. He then endeavored to obtain from her the-affidavit of the marriage, saying that he must have it; that it was-more valuable than he dare tell her. She said he could not get it;. “ it is not here.”

Perhaps at too great length, I have given in chronological order, from this very large record, the salient occurrences of the year elapsing between the secret marriage and the death of the young wife. In my opinion, it offers the advantage of furnishing a view of the events which aids the judgment in apprehending their several and collective force upon the questions of the defendant’s connection with the cause of death, of an intent to put her out of the way and of the existence of a motive for such an act. Taking them in any combination, is there anything to help out the presumption of the defendant’s innocence, and do not every incident and fact, with greater or less significance, form a chain of circumstantial evidence, which subjects and holds him to the-consequences of an intentional destruction of the life of the woman, to rid himself of whom no other way seemed open ? I can reach no other conclusion. Unable to gratify his passion for her, except by making her a wife, he persuades her to a secret marriage under assumed names. He soon tires of her. He endeavors unsuccessfully to remove the fruit of their marriage. He forms an illicit connection with another woman, to whom, with greater or less seriousness, he proposes a scheme for her enrichment by a marriage, with a way to again becoming free which suggests his sharing in the result. He forbids his wife to tell of the marriage; he manifests anger when her friend, being told of it, says the mother should be informed; wished his wife dead and said he-would rather kill her and himself than to have the marriage made public. When her mother learns of it and presses for a public marriage, with sacred forms, he lulls her suspicions by showing the marriage to be legal and gives her an affidavit; he puts off its announcement on pretexts ; he persuades her to put her daughter at school to train her; he again tries to put off the publicity of marriage for two years longer, and when, finally, the mother insists upon a clerical marriage on the anniversary of their secret marriage, he pretends to assent. Immediately he prescribes for the deceased a remedy of quinine and morphine in capsules, harmless to life, but improper, as it was said, for the trouble prescribed for. He awaits the preparation by the druggist of those capsules, though he-could not wait for the other order,' and he retains them in his possession until the following day, when he gives tp the deceased four of the six capsules. He immediately leaves the state and is absent a week, for no apparent cause. He wrote to her to continue taking them, despite her objection that they affected her unpleasantly and gave her no apparent relief. He returns and she has taken three of the capsules : the remaining one she thought of throwing away, but is advised by her mother to take it. A ghasdy incident, I may remark, in this tragedy. Immediately she sickens and dies, with every symptom of what the physician describes as profound morphine poisoning. She had goocl health. She had no motive to kill herself. She was happy and cheerful and before her laid the prospect of the announcement of her marriage and the freedom from the burden weighing upon her conscience. The defendant had acquired some knowledge of morphine and its effects about the time at his medical lectures, and lie had the opportunity to obtain the drug there, if not elsewhere freely procurable. In the retention of the capsules for a day he had the opportunity of substituting in one of them the poisonous dose of morphine. There was motive for the crime in the fear that discovery would inculpate him as a bigamist, because of his previous secret marriages ; and, subordinately, there may have been the motive, with his utterly depraved nature, to prevent putting an end to his apparently successful career of seducing and ruining young girls. He had a motive in a fear, if he persisted in his refusal to acknowledge her as his wife, of the social, professional or legal consequences to himself, if his operations to cause-a miscarriage and which killed the child in his wife’s womb should be revealed. The terror, and the agitation of feeling, which he manifested to Mrs. Potts, when it was a question of publishing the marriage, plainly had their source in some great fear of the serious consequences to himself. His irreconcilable statements to some that the druggist must have made a mistake and to others that the prescription had been put up all right; his extraordinary conduct upon the morning of the day of the death, in professing to have complied with the physician’s request to ascertain from the druggist if there could have been a mistake in the proportions of the drugs ; when, in fact, he never went there until after the death; his composure and utter absence of affection, or of emotion, at the death bed of his wife, until, when dead, he expressed only fear of being held responsible ; his subsequent endeavor to get from Mrs. Potts the marriage certificate and affidavit and, I may add, his unintelligible act in reserving for future exhibition and evidence two of the six capsules, all of his conduct envelopes him with the atmosphere of guilt and is inexplicable except upon the theory of guilt.

In the chapter of events, it was written that their happening would be in such order as to .subvert the probable expectations -of the defendant. Instead of taking the poisoned capsule among the first, in which case the defendant would have been absent and thus could not have been associated with the scenes of death; it so happened that it remained as the last one to be taken. Had it been taken earlier, the remaining capsules would have exhibited, by analysis, the harmlessness of their preparation. Then, too, instead of taking the capsule under the presumably usual circumstances of retiring to bed, it so happened that she took it while her room-mates were out for the evening at a concert, and their return, awakening her so soon after going to sleep, enabled them to observe her condition and to give evidence in that respect important in aid of the discovery of the cause of death. By the alarm created, the attendance of physicians was secured, through whose observations and efforts further important evidence was added, relating to the conditions and symptoms of the deceased. Had these events not occurred, it is probable that she would have passed, in her sleep, from life into death, and the difficulties of detection would have been added to.

It is my opinion, too, that there was strong evidence of the defendant’s guilt in the fact that in no way, under the circumstances, do I see that the druggist could have made such a mistake in putting up the prescription. The three capsules first given to and taken by the deceased were harmless, as were the two retained out by the defendant, and the fourth must have contained the poisonous dose upon taking which the deceased was immediately seized with illness. In no way that I can conceive of could the druggist have reversed the proportions of the drugs in only one capsule. Any mistake of his would have been evidenced in all of the capsules. In the absence of some inconceivable design on the part of the druggist to administer a poisonous dose, his mixture of sulphates could not but have been substantially correct. One capsule could not have been charged with a dose of three or four grains of morphine, sufficient to take life, while the others were harmless, and those retained by defendant and submitted to chemical analysis were shown to be according to the prescription. In the case of a mistake by the druggist, either the deceased would have been affected before, or the capsules reserved by defendant would have revealed the mistake if he spoke the truth.

In my opinion the evidence not only warranted the verdict of the jury, but I do not see that any other could have been rendered which would be consistent with the evidence."

Evidence, as I have suggested, is not to be discredited because circumstantial. It has often more reliable elements than direct evidence. Where it points irresistibly and exclusively to the commission by the defendant of the crime, a verdict of guilty may rest upon a surer basis than when rendered upon the testimony of eye-witnesses, whose memory must be relied upon and whose passions or prejudices may have influenced their testimony. If, taken together, it leads to a conclusion of guilt with which no material fact is at variance, it constitutes the higher form of evidence which the law demands where the life or the liberty of the defendant is at stake, and neither jurors nor the court can conscientiously disregard it. Nor can I think that the conclusion of guilt is unduly influenced by the unusual depravity of nature which the evidence exhibits in the defendant. The evidence seems to overwhelm the accused with his guilt, and leaves the mind unfitted to accept any other belief than that he intended to make away with his wife in order to free the field of his own life, and to escape from the imminent danger of disgrace or punishment, and that with cold deliberation he planned her death by methods which should conceal him as its author. The circumstances preceding and attendant upon the death of the deceased were such as to associate him inevitably with its cause and to forge the chain which has drawn him to the bar of justice.

The successive steps in this drama seem plainly defined from the secret marriage, on February the 8th, 1890, up to the tragic close of the victim’s life, on February the 1st, 1891. There were the weariness following upon satiety of desires; the destruction of the fruit of the marriage he had been obliged to contract in order to possess the woman; the continued effort to avoid disclosures which would jeopardize his reputation and perhaps his liberty, lulling the mother into fancied security and into a satisfaction with a temporary concealment of the marriage; and finally, when pressed and no longer seeing a way to put off disclosure, he accomplishes the destruction of his wife’s life, a few days before the date set for the fulfillment of his promise to have the ceremonial marriage. I think that justice does not demand that this defendant should have a new trial, unless there were errors committed upon the trial in the admission or exclusion of evidence, or in the charge of the recorder, which affected any substantial rights of the accused. As his counsel has insisted upon their existence, it is necessary that some of the errors which he pointed out should be carefully considered by us.

He insists that it was error to receive the testimony of Dr. Treverton, a witness for the People. He was uncle to the deceased ; with whom she remained for some two months at Scranton, and who operated upon her and removed a dead child of five months. The objection relates to his testifying to a conversation with the defendant, and is based upon its being privileged, under that statutory prohibition which seals a physician’s mouth, and upon its tending to prove the defendant guilty of another crime; namely, of abortion. The first ground of objection is untenable for several reasons." In the first place, the witness was not employed by the defendant. In the second place, he acquired no important information from the defendant, or any which he was not already possessed of, or which was necessary for him in order to act in a professional capacity. Lastly, the statutory privilege Was not conferred to shield a person charged with the murder of the patient, as was held in Pierson v. People, 79 N. Y., 424. I should never be willing to assent to a construction, or to believe in a legislative intent, which would operate to convert a statutory provision protecting a patient from a damaging or objectionable disclosure into a protection for a person on trial for the murder of the patient.

The second ground of objection is also untenable, because the evidence shows, or tended to show, the existence of motive on the part of the defendant It went to show the endeavor of the defendant to keep the marriage secret. To prevent the obligation of having to recognize the marriage, he endeavored to destroy the fruit, and had been willing to do that by criminal means. Then the knowledge by the mother and uncle of this criminal act placed him more or less in their power to compel him to comply with their request.

The remarks upon the question of privileged communications in the instance of Dr. Treverton’s testimony, to the effect that the statute should not be construed to be applicable to protect a person accused of the murder of the patient, apply to Dr. Hand’s testimony, and with even greater force to the instances o'f the testimony given by physicians Fowler, Kerr and Baner, who were called in to attend the deceased upon the night before she died.

The testimony of the witness Oliver, disclosing a conversation with the defendant, in which, after boasting of his previous extensive intercourse with women, and of his successful methods for violating their persons, he admitted having previously contracted two secret marriages, made necessary to overcome the scruples of the women, was clearly admissible on the question of motive. It threw light upon it. With a previous secret marriage, the publicity of his later marriage with the deceased would have stamped him as a bigamist and have ruined his reputation, if it would not have subjected him to criminal prosecution.

'■ The argument against the admissibility of the evidence of the witness Latham presents more difficulty, perhaps, at first glance; but when we consider the importance of showing motive in a case where the evidence to charge the accused is wholly circumstantial, the difficulty disappears. It may be remarked, in connection with this evidence from the witnesses Latham and Oliver, that while evidence merely to show previous bad and vicious character is inadmissible against one on trial for the commission of a criminal offense, if the depraved acts, offered to be shown, evidence, or throw light upon, motive, they become admissible. That the accused has suffered from the unconscious influence upon opinion of the record of a bad life is not to be assumed as against jurors who have sworn to convict upon evidence only which establishes the guilt of the accused.

The evidence of witness Latham exhibited the defendant with a young woman at a hotel in Canandaigua, in September, 1890, and proved that they held illicit intercourse with each other, and that a conversation was overheard in which the defendant suggested her marrying some old man with plenty of money, and that if she found one, they could give him a pill and get him out of the way. I consider that this evidence was admissible, because it bore upon the question of motive, and tended to repel that strong presumption which would militate in favor of a husband when on trial for the murder of his wife. The rule that evidence in criminal cases should be confined strictly to the question in issue is not infringed upon because the evidence offered, while tending to prove some essential fact in the guilt of the accused, may also prove the commission of another offense. Such evidence is relevant and admissible whenever its presence goes to sustain the charge by showing scienter or motiva; for these facts are essential elements of a crime. People, v. Stout, 4 Parker’s Crim., 71.

So, in the present case, proof of the existence of the clement of motive is aided, in some degree, by showing what were the defendant's relations and feelings towards his wife, as evidenced by his conduct and his remarks when with others.

Wharton, in his work on Criminal Evidence, says (§ 51), that on the trial of a husband for the murder of his wife, the state has a right to prove his adultery with another, as illustrating a desire to get rid of the marital relation; and he cites in support of the rule People v. Stout, sujora, and several authorities in other states. In People v. Stout, the defendant was accused of the murder of Little, and the prosecution offered evidence to show incestuous intercourse between defendant and Little’s wife, who was defendant’s sister. The evidence was held admissible to show motive and that it was no objection that it tended to prove a distinct felony, namely : the incest. Welles, J., with whom Johnson and Smith, JJ., concurred, delivered the opinion of the general term in that case, and they placed its competency upon the ground of its establishing a motive to get the deceased out of the way. And see State v. Watkins, 9 Coan., 47.

The evidence of witness Latham tended to show that defendant had ceased to hold his wife in such affection as the law presumes to exist from the marital relation. It tended to contradict the existence of natural motives to prefer, cherish and care for her. The real difficulty in the propriety of the admission of this testimony relates to the suggestion of the defendant to the Drew woman, in this conversation, that if she found and married some old man with plenty of money, he could be gotten rid of by a ■ pill. If this testimony was irrelevant upon the question of motive, it was not material upon the point in issue, and its effect could hardly be other than to prejudice, more or less seriously, the defendant in the minds of the jury. But such testimony was relevant upon the question of motive. It strongly characterized the nature of the defendant’s relations with this woman and illustrated their closeness and the underlying intensity of feeling.

The evidence of an illicit intercourse went to exhibit what were the defendant's feelings towards his wife and bore upon his desire to get rid of the marriage relation; but the further evidence^ in what he proposed to his mistress that she could or should do, went to exhibit how strongly he desired the permanence of their relations and to point out a way by which, in the future, they could secure that permanence with such advantages 'in their surroundings as the possession of wealth would procure. If this conversation, so overheard by the witness, furnished any clue to the existence of motives, we cannot assume, nor say, that it was meaningless or immaterial. The weight and importance to be attached to it were for the jury to consider in the light of all the circumstances. It did tend to prove that the defendant’s feelings towards his mistress were not transient, or ephemeral, in their nature, but that they were sufficiently intense to give rise to a desire that their relations should be made durable. His marriage was unknown, and he was determined that it should not be made public. He saw a way, which his strong passion for the woman led him to propose; by which, through a criminal act, they might be able to continue together in the future more advantageously. To this she listened. What was the situation? The adulterous connection had assumed such intensity of character that a scheme was broached and listened to, which in its conception indicated, and in its execution would menace, jeopardy to the life of defendant’s wife, for its very hostility to the restraints of the existing marriage tie. Its adoption bound him and Ins paramour closer together in a partnership in a criminal project, and placed each, more or less, in the power of the other. I think these considerations are sufficient to show the relevancy of the-evidence, as characterizing the exceptional nature and intensity of the adulterous relation, and, in that respect, bearing upon the existence of motives to get rid of his wife.

It was none the less relevant as indicative of this genuine and powerful motive because it tended-to show the tendency of his mind, and that he regarded marriage as a means to an end, and the marital relation as but a light burden, from which relief could readily be obtained by the skillful and secret use of a deadly pill.

It was proper for the jury to receive and to weigh, in connection with all the other circumstances, and in considering the probabilities of the defendant’s harboring an intention, unrestrained by the ordinary influences of love and affection, or the fact of marriage, to destroy the life of the deceased.

Many cases might be referred to, in this state and elsewhere, where any evidence is considered to be admissible, if illustrating the mutual relations and the relative feelings of husband and wife, where one is on trial for the murder of the o^er. This link in the evidence to charge the defendant was of itself inconclusive, of course ; but it was not wholly irrelevant or immaterial, to be considered upon the existence of motive. It contributed some strength to the chain of circumstances, because it tended to eliminate that weakness which otherwise it would possess from the natural abhorrence of the mind to presume a capacity in the defendant for such a crime upon his wife.

A motion Was made to strike out evidence as to the disappearance of a letter from Dr. Fowler to Mrs. Potts, upon an occasion when the defendant was in her room, and the denial of the motion was excepted to. The argument is that it tended to throw discredit upon defendant as indicating his having abstracted it. The evidence of Mrs. Potts had been received without objection being made. Subsequently, when the motion was made and denied, the recorder, after a discussion, instructed the jury that the evidence simply established the fact that the letter received by Mrs. Potts subsequently, was missed by her, and that they were not to connect the defendant in any way with the letter on the evidence. On both grounds the matter of error is disposed of, and there is no room for any argument that the defendant was prejudiced.

Certain hypothetical questions asked by the defendant’s counsel of medical experts, who testified for the People, were excluded, and the error of their exclusion is argued. Inasmuch as there was no foundation in the case for the facts assumed by the questions put, the ruling was correct. Such questions, to be properly asked of purely expert witnesses, must rest upon facts which are either admitted, or which, being in conflict upon the evidence, the jury are to pass upon.

I see no reason for discussing any other assignments of error. None were important or prejudicial to the defendant. The charge of the recorder was remarkably able in its exposition of the law, most impartial in its presentation of the facts and very clear. He instructed them that “ if the facts and circumstances taken together are susceptible of two constructions, one pointing towards guilt and the other towards innocence, in criminal cases, the accused is bound to receive the most favorable constructionand, .again, he said to them that, before the defendant could be convicted, “ the evidence must satisfy you of his guilt beyond a reasonable doubt * * * The district attorney must establish to your satisfaction and beyond a reasonable doubt the guilt of this defendant.’’ Indeed, the counsel for the accused only finds it necessary to present in his brief as an error the refusal of the recorder to charge the fifth request, which was that the jury should always act upon the presumption that the accused was innocent, and should reconcile all the circumstances with that side of the question." The recorder had previously received written requests from defendant’s counsel, and when asked by him, after the conclusion of his charge, what had been his disposition of them, he said that if there was anything in them not embraced in the charge, he might except; v^iereupon he excepted specifically to the refusal to charge each request. The particular request now in question, I think, had been fully covered and its matter emphasized by the charge, and the refusal to specifically charge it was discretionary and constituted no error to the prejudice of the defendant.

Upon the most careful consideration of this record and of the questions raised by that consideration, or by the counsel for the appellant, I fail to discover the existence of any substantial errors and, in my opinion, no ground exists for awarding to him another trial upon this indictment.

Some questions are raised and are discussed in the appellant’s brief in relation to the empanelling of jurors. Some are covered by the opinion of this court in People v. McGonegal, lately handed down, and need no discussion here. The others suggest no error in the rulings.

The judgment, therefore, should be affirmed.

All concur.