author: Maynard, J.

text:
    The People, Resp’ts, v. Burton C. Webster, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Homicide—Manslaughter.
    On the trial of an indictment for murder, the evidence for defendant showed that he had been told that deceased had made improper advances toward the woman with whom he had been living as his common law wife, that deceased came to their rooms and struck defendant, who followed him back to his room, and on his turning round and raising a cuspidor defendant drew his revolver and shot him. There was also evidence to support the theory of the prosecution, that defendant went to the room of deceased for the purpose of killing him, and finding him writing a letter instantly shot him. Held, that it could not be said that because the defendant was not convicted of the crime of murder in the first degree, but of a lesser offense, that the jury disregarded the evidence of the prosecution, and gave credence only to that of defendant’s witnesses.
    3. Same—Evidence.
    Defendant was permitted to show what his wife had told him upon the subject of deceased’s conduct toward her on the evening of the homicide, but was not allowed to prove by her or others that the deceased had actually been guilty of the offenses complained of, the court in excluding the latter stating in effect that no conduct of the deceased justified the defendant in murdering him, that the only material thing was the communication and it was entirely immaterial whether the things disclosed actually happened. Held, that the statement of the court was not prejudicial to the defendant, and was no more than a clear cut statement of a most pertinent legal principle.
    3. Same.
    Evidence offered by the prosecution to show the general reputation of the deceased for peace and inoffensiveness was excluded, the court remarking that his general character was not in issue, * * * that it was no justification to the defendant for taking his life whether he was of good or bad character; that so far as the guilt of defendant was concerned the jury must assume that Goodwin was a man of irreproachable character. Held, no error, that what the court said had reference exclusively to the defense of justification, and did not involve the credibility of deceased’s dying statements.
    4, Same—Photographs.
    A photograph which defendant admits to be a “just picture” of the deceased is admissible in evidence, under a general objection.
    •5. Same.
    There was no error in permitting the district attorney, upon cross-examination of defendant, to show the circumstances under which he met the woman with whom he was living and the kind of life she was then living.
    6. Same.
    A witness for defendant was a chambermaid in the employ of the proprietor of the flat. Held, that the People were entitled to show as an independent fact that at the time of the homicide she was devotedly attached to defendant and his wife and their relations were intimate and confidential, and to contradict her testimony, given upon cross-examination, as to facts material in the case, by proving statements made by her to the housekeeper of the flats.

      7. Same.
    The People were also entitled to give independent proof of the extent to which the opinm habit had control of defendant’s witness and to contradict her testimony when she denied that she had stated that she was. so addicted to the use of the drug at the time the homicide occurred that she could not live without it.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of court of oyer and terminer entered on verdict finding defendant guilty of manslaughter-in the first degree.

      William F. Howe, for app’lt; Henry B. B. Stapler, for resp’ts.

       Affirming 52 St. Rep., 233.

   Maynard, J.

The defendant was tried at the New York oyer and terminer, upon an indictment charging him with the crime of murder in the first degree, in killing Charles.E. Goodwin, on August 2, 1891. The jury convicted him of manslaughter in the first degree, and he was sentenced to imprisonment for the term of nineteen years. He admitted the act of' homicide, but plead that it was justifiable on the ground of self defense.

The defendant and deceased occupied rooms upon the same-floor of the Percival flat in Forty-second street, New York city. The latter was unmarried, and the former was cohabiting with a woman with whom a marriage ceremony had not been solemnized, but he claimed that a civil contract of marriage had been entered into between them in the month of January of the same-year. e.

It appears from his admissions on the trial, that he had previously married another woman, and it was not shown that the former marriage had been in any lawful manner dissolved. The-defendant’s version of the homicide was, that upon the evening-of its occurrence he came to his rooms and found his wife, who was then pregnant, attended by one Fannie Romaine, a servant, in the employ of the janitor of the flat; that she seemed to be ill, and during their conversation she complained to him about the conduct of the deceased, stating that he had made improper-advances to her and indecently exposed his person in her presence, and in other ways behaved in an unbecoming manner, and that while the defendant was away she dare not go into the hall through fear of encountering him, and that her present sickness,, which was likely to result in a premature birth, was caused by his annoyances. While they were talking, the deceased knocked at the door, which was opened by the defendant, and the former, apparently surprised at finding him in, addressed him with an. oath and struck at him with his hand, just grazing the face, and causing a slight scratch, and then retreated to his own room, forty-nine feet distant, where he was followed by the defendant, who entered the room and remonstrated with him about his: conduct; that the deceased greeted the defendant with oaths and curses, and seized a cuspidor and was in the act of throwing it at. him, when, believing that he was in imminent peril of his life, he drew a pistol and shot him in a vital part, from which death ensued in a few hours. The defendant’s wife and the woman. Romaine were witnesses in his behalf. They claim to have immediately followed him to the deceased’s room, and to have witnessed the homicide, and they gave substantially the same account as the defendant of the occurrence. The People challenged the truth of the testimony of these three witnesses for the defense, and insisted that it was fabricated in every material respect, and that it was the product of a conspiracy to shield the defendant from the consequences of his crime by falsehood and perjury. The theory of the prosecution was that the defendant deliberately went to the deceased’s room for the purpose of killing him, and found him engaged in writing a letter, and, without any lawful provocation, instantly shot him. This view was supported by the dying declaration of Groodwin,. and by many circumstances of a most convincing character.

It is not the province of this court to decide between these conflicting theories. It is sufficient that there was some evidence to support both, and it was the office of the jury to say which had been established by satisfactorv proof, or whether each might not. be partly true. ISTor can we determine the grounds upon which they rested their verdict. We are bound to assume it was the result of conclusions or inferences legitimately drawn from some-competent evidence in the case, but it is beyond our ken to discern the particular process by which they arrived at their verdict. It cannot, therefore, be said that because the defendant was not. convicted of the crime of murder in the first degree, but of a lesser offense, the jury disregarded the evidence of the prosecution, and gave credence only to that of the defendant’s witnesses. The facts upon which the People relied may have given rise to different inferences in their minds than those which the district attorney sought to draw from them, and they may have accepted in part the account of the homicide given by the defendant and rejected other portions which they deemed unworthy of belief. The only thing which can properly be affirmed of their verdict is-that they found that the defendant killed the deceased in the heat, of passion by means of a dangerous weapon, and not with premeditation or deliberation, or with an intent to effect his death, and that they rejected the claim of the defendant that he did. it in lawful self-defense.

It follows that if errors were committed in the reception of evidence, materially affecting the credibility of the defendant’s witnesses, or in the comments of the court upon the trial, they must be reviewed and considered, for we are unable to say that if they existed they did not prejudice the defendant or affect the verdict of the jury.

The first exception to be noticed relates to the reasons given by the court for the admission and rejection of certain evidence in regard to the conduct of the deceased towards the defendant’s-wife, and the communications made to the defendant by her with respect to such conduct. The defendant was permitted to show what she had told him upon this subject upon the evening of the homicide, and previously, but he was not allowed to prove by his wife or others that the deceased had actually been guilty of the offenses complained of. There was a prolonged struggle between the prosecution and the defense as to where the line should be drawn in determining the question of the admissibility of this evidence. In disposing of this question the remarks were made to which the exceptions have been taken. The trial judge correctly defined in plain and vigorous language the rule of law which should control in the reception and application of such evidence. He stated, in substance, that no conduct of the deceased justified the defendant in murdering him; clearly referring to the alleged improper and lascivious behavior of the deceased towards the defendant’s wife; and that a man could not justify the killing of another because he disapproved of his previous conduct. When the wife was under examination, a discussion arose whether she should be permitted to state what the deceased did when the defendant was not present, and the court, in excluding it, said that she might state what she told the defendant that the deceased had done; but could not state whether the deceased had, in fact, done the things referred to ; that it was entirely immaterial whether he had or not; that if he had so misbehaved himself it was no justification for murder, and the defendant could not escape the consequences of his own act because of any act of the deceased done prior to the killing; that the law of this state did not authorize or justify any man in taking the law into his own hands and slaying another because he has, or imagines he has, received an insult; that the witness might state any communication she made to the defendant at or about the time or shortly prior to the occurrence as to anything that the deceased did ; that the only material thing wits the communication, and it was entirely immaterial whether the things disclosed actually happened. Substantially the same remarks were repeated when the defendant was examined and permitted to state what his wife told him about the deceased ; and the court then also stated that the jury must not consider the question whether the communications made by the wife were true; that they were admitted only to show the condition of the defendant’s mind when he fired the shot. It is not now claimed that any error was committed in the reception or rejection of evidence upon this point; but it is insisted that these remarks were in the nature of a judicial criticism upon the defendant’s case; that they were unfair and prejudicial to the defense, and must have conveyed to the jury the impression that the trial court believed that the defendant was guilty of the crime of murder, and in this way affected a substantial right of the accused.

We do not think the language of the learned trial judge is fairly susceptible of such an interpretation. It was no more than a clear cut statement of a most pertinent legal principle. The charge was murder, the'defense a justification, and the court merely said, in terms not liable to misconstruction, that no wrong done by the deceased to the wife was available as a justification, but if the defendant believed that the wrong had been committed, the state of mind induced by the belief might be considered in determining the motive and intent of his actions.

Where evidence is admitted not bearing directly upon the main issue, but having only an incidental relation to a material fact which is the subject of inquiry, it is both the province and the duty of the trial court to clearly state the limitations of its scope ancf application to be observed by counsel and jury. This duty is especially enjoined in cases like the present, where jurors, however conscientious and intelligent, might be misled by the character of the testimony, and, yielding to an impulse of indignation, permit it to exercise an undue influence in controlling their verdict.

Evidence offered by the prosecution to show the general reputation of the deceased for peace and inoffensiveness was excluded, the court remarking that his general character was not in issue; that he was as much entitled to the protection of the law as the best and most exalted man in the community, and that it was no justification to the defendant for taking his life whether he was of good or bad character; that his character could not, under any circumstances, be an issue in the case; that, so far as the guilt or innocence of the defendant was concerned, the jury must assume that G-oodwin was a man of irreproachable character. The defendant’s counsel excepted to these remarks, and reminded the court that they attacked his dying declaration, and that in that respect his character was in issue. In construing these comments, it must be kept in mind that we are dealing with a case where the killing was admitted, and the general character of the deceased had not been questioned by the defense. While the truthfulness of the dying declaration was disputed, it did not involve the general character of the deceased, and the defendant had offered no proof to impeach his character from the speech of people. What the court said had reference exclusively to the defense of justifica,-,tion, and did not involve the credibility of the deceased’s dying statements. On the contrary, the learned judge was careful to say that whether or not he should be believed, that was another thing, and by these remarks, as well as by the charge subsequently given, the jury were left free to determine whether his account of the homicide or that of the defendant was the true one.

In disposing of this branch of the case, we recognize the full import of the expression of this court in Sindram v. People, 88 N. Y., 196, that “it is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments upon the evidence might be carried so far as to afford ground for assigning error; ” but there is a wide difference between the possible case there suggested and one like the case at bar, where no intimation was given by the trial judge of his own views as to the credibility of witnesses, and his remarks were confined to a demonstration of the true quality and value of evidence of an exceptional kind, and to a timely and needful caution to the jury to limit its force and application within appropriate bounds.

A photograph of the deceased was admitted in evidence, under a general objection that it was incompetent, immaterial and irrelevant, and after it had been exhibited to the defendant, upon cross-examination, and he had stated, in response to the question whether it was a “just picture ” of the deceased, that it somewhat resembled him. Subsequently, a juror inquired of the court the-object of showing the picture to the jury, and was told that it was admitted for the consideration of the jury in determining the question whether they believed the defendant was in danger at the time he fired the shot; to give them some idea of the kind of a man the defendant claimed his assailant was.

Exceptions were taken to the reception of the photograph for this purpose, which, we think, are not tenable. Cowley v. People„ 83 N. Y., 465; Walsh v. People, 88 id., 458 ; Archer v. N. Y., N. H. & H. R. R. Co., 106 id., 589; 11 St. Rep., 32; Alberti v. N. Y, L. E. & W. R. R. Co., 118 N. Y., 77; 27 St. Rep., 865. There was no objection on the ground that it had not been shown to be a correct likeness. The exception went only to the competency of the evidence. Where self-defense is the plea, the physical characteristics of the slain are, obviously, a proper matter of proof. Whether he was a man of a large and powerful physique or an athlete, or puny and feeble and inferior in size and strength, it was a material fact to strengthen or rebut, according to the nature of the evidence, the claim of the defendant that he believed he was in great danger of bodily harm when he was assailed. Witnesses who had known the deceased might have been permitted to describe him as accurately as the imperfections of human speech would allow, and the evidence is no more objectionable when his form and features are delineated by means of the photographer’s art.

We do not think any error was committed in permitting the district attorney, upon cross-examination- of the defendant, to show the circumstances under which he met the woman with whom he was living and the kind of life she was then leading. The questions were all within the range of a proper cross-examination. Their manifest purpose was to prove that his relations to this woman were unhallowed and adulterous in their origin; that their subsequent life together was that of libertine and mistress, and not of husband and wife, and that his word was, therefore, not entitled to the same weight as if his conduct had always been upright and blameless.

It is now an elementary rule that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his privilege. A party who offers himself as a witness in a criminal cause is not exempt from the operation of the rule. He is not compelled to testify, and if not examined the law provides that it shall not give rise to any presumption against him. When he elects to become a witness, it is for all the purposes for which a witness may be lawfully examined in the case, and he is not, in the constitutional sense, “ compelled to be a witness against himself,” although, when subjected to the test of a legitimate cross-examination, he may be required to make disclosures which tend to discredit or to incriminate him. People v. Tice, 131 N. Y. 657; 43 St. Rep., 573. The extent to which disparaging questions, not relevant to the issue, may be put upon cross-examination, is discretionary with the trial court, and its rulings not subject to review here unless it appears that the discretion was abused. Great Western, Turnpike Co. v. Loomis, 32 N. Y., 127; Greton v. Smith, 33 id. 245.

It is urged that this evidence should have been excluded, because it tended to implicate the defendant’s wife, who was a witness for him, and thus to impeach her in an unauthorized way before the jury. But any apprehended misuse of this species of •evidence may always be avoided by asking and obtaining an instruction to the jury that it is only to be considered in determining the credibility of the witness who makes the confession.

The exceptions which remain to be considered relate to the evidence of the witness Fannie Romaine. She was ostensibly in the employ of the proprietor of the flat as a chambermaid, and in that capacity had no other duties to perform, with reference to the occupants of the defendant’s rooms, than pertained to the other rooms of the house. The prosecution sought to show that she had, in fact, become devotedly attached to the defendant and his wife, and was, at the time of the homicide, practically one of his household, and that their relations were intimate and confidential. We think the People were entitled to a submission of this proof, not as of a collateral, but as of an independent fact, and that the trial court properly allowed it to be so given. That such is the rule where the witness is hostile to the party against whom he is called cannot be questioned. As was said by Ch. J. Earl, in People v. Brooks, 131 N. Y., 325; 43 St. Rep., 294, “ The hostility of a witness towards a party against whom he is called may be proven by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it.” Garnsey v. Rhodes, 138 N. Y., 461; 53 St Rep., 6. The same rule must prevail where the relations of the witness to the party who produces him are more intimate and friendly than those which ordinarily exist in social or business intercourse. This kind of evidence is especially valuable in criminal prosecutions; for “ there are no cases,” says Wharton, “ in which party sympathy, personal friendship, family affection operate, as a rule, so effectively as where life and liberty are at stake. In such cases, while (unless in the relationship of marriage, to be hereafter discussed) there is no exclusion on account of bias, however strong, bias is always of importance in determining credibility. Nor is this exclusively on the ground that bias prompts perjury. So it may sometimes do, but cases of this class are rare, while cases in which bias leads to unconscious perversion of facts are frequent. * * * For these reasons interest and party or social sympathy may be always shown in order to discredit a witness, and the same observation may be made as to near relationship.” Wharton Grim. Ev., §--376.

in the pursuit of this line of proof, the People were permitted to show, by the housekeeper of the flat, that this witness spent a great deal of the time in the company of defendant’s wife; that she was her companion, and went out to dinner with her in that capacity, and that she stayed with her evenings, and as late as three o’clock in the morning. The housekeeper was then allowed, under objection, to state that on one occasion the witness, Eomaine, had told her that she used to go with the defendant’s wife to hunt up the defendant, and remain outside of a well-known place of amusement two hours at a time, while defendant's wife was looking for him. The witness Eomaine had denied upon her cross-examination that she had ever done so, or that she had ever so stated to the housekeeper. The evidence was properly allowed. It tended to contradict the Eomaine woman as to a fact which was material in the case, and related directly to the intimacy of her associations with the defendant’s family, and the extent to which she was willing to serve them. The housekeeper was also allowed to state, under objection, that Miss Eomaine, while employed in the Percival flats, was an habitual opium eater, and that she was many times under the influence of the drug, and that Miss Eomaine had told her that she could not leave it .off or she would go mad. The witness Eomaine had admitted, upon her cross-examination, that she was in the habit of taking opium, and in reply to the question: “Were you under the influence of it on this particular night when this occurred ? ” she replied: “ Hot any more than any other time.” She was asked if she had not told the housekeeper that if she gave up the use of opium it would kill her. She denied having so stated, or that she had any conversation with her upon the subject. Upon redirect examination, apparently for the purpose of excusing some discrepancies between her testimony on this trial and that given upon the examination before the police magistrate, the defendant’s counsel asked her_if she was not, at the time of the former examination, taking opium frequently, and she replied in the affirmative, and also stated that she was cured of the habit while in the hospital subsequently. Under these circumstances we think the People were entitled to give independent proof of the extent to which this habit had control of her, and to contradict her testimony when she denied that she bad stated that she was so addicted to the use of the drug at the time the homicide occurred that she could not live without it. She was one of the principal witnesses for the defense. She claimed to have been present when the defendant killed the deceased, and to have witnessed the entire occurrence, and to be able to give a minute description of the fatal encounter, and the value of her testimony depended largely upon the accuracy of her perceptions. If she was then under the influence of a powerful narcotic, whose well known properties are to distort the vision and induce mental confusion, it was material to show it; and her denial of the admission she made to the housekeeper was the denial of a material fact with respect to which she might be contradicted if the denial was untrue. It was not within the rule which concludes-the cross-examining party by the answers of the witness.

We are satisfied that no errors were committed on the trial to the prejudice of the defendant, and the judgment-of conviction must be affirmed.

Judgment affirmed.

All concur. .


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People, Resp’ts, v. William P. Cannon, App’lt. The People, Resp’ts, v. Hugh Quinn, App’lt. The People, Resp’ts, v. George Z. Bartholf, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Constitutional law—Bottles.
    Chapter 377 of the Laws of 1887, an act to protect the owners of bottles, as amended by chapter 181 of the Laws of 1888, is constitutional.
    2. Same—Evidence.
    The provision that the having by any junk dealer, or dealers in secondhand articles, possession of marked bottles or kegs, without the written consent of the owners, should be presumptive evidence of the unlawful use, purchase and traffic in such bottles, is not unconstitutional.
    3. Same.
    The taking of security for the return of the bottles from the party to whom they were delivered, so long as there is no evidence of an agreement, and the party is under no legal obligation to return them, he having the right to retain them if he choose to leave the money deposted as a payment for the bottles, amounts in law to a sale of them at the election of the party to whom they are delivered.
    These are appeals from convictions of the above defendants, affirmed by the general term of the supreme court in the first department. Each defendant was convicted upon a separate indictment and trial of a violation of what is described in the various records as the “ Bottling Act,” and known as chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888.
    The first three sections of the act are here alone material. The title of the act and the sections spoken of read as follows:
    “An act to protect the owners of bottles, boxes, siphons and kegs used in the sale of soda waters, mineral and aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages.
    “ § 1. Any and all persons and 'corporations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager heer, weiss beer, white beer, or other beverages, or medicines, medical preparations, perfumery, compounds or mixtures, in bottles, siphons, tins or kegs, with his, her, its or their name or names or other marks or devices branded, stamped or engraved, etched, blown, impressed or otherwise produced upon such bottle#, siphons, tins or kegs, or the boxes used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of the secretary of state, a description of the name or names, marks or devices so used by him, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York and the city of Brooklyn, in the county of Kings, such publieation shall be made for three weeks successively in two daily newspapers published in the cities of New York and Brooklyn, respectively.
    “ § 2. It is hereby declared to be unlawful for any person or persons, corporation or corporations, to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer or other beverages, or with medicine, medical preparations, perfumery, compounds or mixtures, any bottle, box, siphon, tin or keg, so marked or distinguished as aforesaid with or by any name, mark or device, of which a description shall have been filed and published as provided in section one of this act, or to deface, erase or obliterate, cover up or otherwise remove, or conceal, any such name, mark or device thereon, or to sell, buy, give, take or otherwise dispose of or traffic in the same without the written consent of, or unless the same shall have been purchased from the person or persons, corporation or corporations whose 'mark or device shall be or shall have been in or upon the bottle, box, siphon, tin or keg so filled, trafficked in, used or handled as aforesaid. Any person or persons or corporations offending against the provisions of this section shall be deemed guilty of a misdemeanor, and" shall be punished for the first offense by imprisonment not less than ten days nor more than one year, or by a fine of fifty cents for each and every such bottle, box, siphon, tin or keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment not less than twenty days nor more than one year; or by a fine of not less than one dollar nor more than five dollars for each and every bottle, box, siphon, tin and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment in the discretion of the magistrate before whom the offense shall be tried.
    “ § 3. The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same, without such written consent or purchase as aforesaid,- of any such marked or distinguished bottle, box, siphon, tin or keg, a description of the name, mark or device whereon shall have been filed and published as herein provided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or of any articles of merchandise, medicines, medical preparations, perfumery, compounds, mixtures or preparations, or for the furnishing of such or similar beverages to customers, or the buying, selling, using, disposing of or trafficldng in any such bottles, boxes, siphons, tins or kegs by any person other than said persons or corporations

      having a name, marie, or device thereon, or such owner without such written consent, or the having by any junlc deader or dealers in secondhand articles possession of any such bottles, boxes, siphons, tins or kegs, a description of the marks, names or devices wherein shall have been so filed and published as aforesaid, without such written consent, shall and is hereby declared to be presumptive evidence of the ■said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs.”
    There were three counts in each indictment, one for unlawfully buying from a person to the grand jury’unknown, .one for unlawfully taking from a person to the grand jury unknown, and one for unlawfully trafficking in and disposing of in a manner and by means to the grand jury unknown certain bottles (describing them as having marks on them, etc., as provided for in the first section of the above act). The defendants are dealers in, among •other articles, second-hand bottles of all descriptions. They are among the largest dealers in those articles in the city of New York, have been engaged in that business for a number of years, and their •stock on hand at the time when the occurrences herein spoken of took place reached in each case to the number of several hundred "thousand bottles. Neither of the defendants was able to tell of whom or where he purchased the bottles which are the subject of •complaint in his case. They purchase all kinds of bottles from whoever comes with them, if satisfied they have not been stolen. 'Their purchases come from all over the country by rail and in vessels and packed in boxes and barrels, and they are ignorant of the kinds of bottles that thus come until they have been taken from the various railroad stations or vessels and brought to their ■stores and sorted out. The defendants claimed to he ignorant of the possession of any of the classes of bottles described in the indictments until their places were visited by the police under a search warrant sworn out by a detective employed by an association of manufacturers of soda waters, beer, etc., and who were the owners of bottles registered as provided for by the law.
    Among all the bottles that were in the possession of the defendants, there are involved in this proceeding but very few, as the evidence shows there were only found an insignificant quantity of registered bottles as compared with the immense number ■of others which were on hand and dealt in by the defendants.

      Everett P. Wheeler, Wm. J. Gaynor and A. W. Tenney, for app’lts; Wm. Travers Jerome, for resp’ts.

       Affirming 43 St. Rep., 427.

      Reversing 44 St. Rep., 920.

      Reversing 49 St. Rep., 368.

   Peckham, J.

These prosecutions have been instituted for the purpose of obtaining a decision in regard to the validity of the law under which the convictions have been secured. Counsel for both parties have so stated, and the courts below have distinctly ruled upon the various propositions raised, so that the constitutionality of the statute might be fairly tested.

It is claimed that the act deprives all persons other than the manufacturers of the right to traffic in or give away sparkling or •aerated liquors or beer which have ever been placed in a trademark bottle. It is said that if the manufacturer refuses to sell the bottle, he in effect prohibits the sale or gift of that which is contained in it, except over the counter, and it is urged that the legislature cannot grant to the manufacturer such a monopoly.

It is needless to speculate as to the powers of the legislature upon this subject, because we are of the opinion the statute is not susceptible of any such construction.

It is made unlawful for anyone to fill up with soda waters, etc., any bottle marked and distinguished as in the first section of the act is provided, or to deface, erase or obliterate any such mark on such bottle, or to sell, etc., or to otherwise dispose of, or traffic in the same, without the written consent of, or unless the same have been purchased from the person whose mark is on the bottle. This provision of the act refers to the use of these empty bottles by some one other than the owner of the marks thereon, and after the original contents of such bottles have been taken out, and then unlawfully using or trafficking in the empty bottles.

After the retail dealer or anyone else has purchased the soda water or beer from the manufacturer, and the same has been delivered to him packed in the bottles thus marked, he is not prevented by anything in the statute from himself selling such sqda water or beer and delivering the same to the purchaser packed in the same bottles in which it was delivered to him from the manufacturers. This process may be continued indefinitely. The act is not aimed at the sale and delivery of the water or beer packed in the original bottles as it came from the manufacturer, but it is aimed at an unlawful dealing in empty bottles that have been marked, and after their original contents have been used. If otherwise, it is clear that an enormous amount of the business of the manufacturers would be curtailed. It is a fact which everyone knows, that large amounts of the liquors originally put up in these bottles are sold by the manufacturer’s to the retail dealers, who sell them to the customers, who take them away in the original bottles in which the manufacturers delivered them to the retail dealers, and it cannot be contended with any degree of plausibility, as it seems to us, that there is anything in the language of the statute, properly construed, which prohibits such a dealing in and delivery of the liquors by anyone into whose possession and ownership they have lawfully come.

Nor is there any just foundation for the assertion that the act necessarily destroys or unlawfully decreases the trade in empty bottles, which is a fair trade and one entitled to the equal protection of the law. The act contains no provision in regard to empty bottles in general. It forbids the use or traffic in certain kinds of bottles without the written consent of the owners of the marks on them, or unless they have themselves once sold the bottles. It is not necessary that they should have sold to the person using them. A sale of the bottles to anyone thereafter precludes the application of the provisions of the statute. A bottle that has been marked as described in the first section, and has thereafter been used b}r the owner of the marks for the purpose of identifying in the market the particular goods manufactured by him and put up in such bottles, ought not to be used for other purposes against the will of the manufacturer, so long as he has not sold the bottles to anyone, nor authorized anyone to use or traffic in them ; in other language, so long as he continues the owner of the bottles.

And this kind of use or traffic the law is intended to prevent.

Under the broadest definition of the term liberty, as used in the constitution, it is not probable that anyone would contend that it covers, or ought to cover, the liberty of dealing in property which the original owner has not sold to anyone or authorized anyone else to deal in. And yet the claim that the act destroys the trade in second-hand bottles would lead to this result if it were allowed. Because the act prohibits the dealing in the property of a third person without his consent, it may be that the business of the second-hand bottle dealer is affected so far as to necessitate further precautions in regard to making purchases than would otherwise be necessary. Before purchasing second-hand bottles he must be assured that the person selling has the right to sell them, and that he, the dealer, has the right to buy them. This may require more of an inspection of the kinds of bottles purchased than the dealer has heretofore been accustomed to give, but there is nothing improper in such obligation, and if he fail to perform it he must omit it at his peril. The act in question has a tendency to prevent frauds upon the public in the way of filling these bottles with articles of the same nature as originally put in them, but not manufactured by the owners of the marks. Even though there may already be a section or sections of the Penal Code which cover such a subject, that does not render the further enactment of the legislature upon the same subject void. If naturally there may be trouble in showing that the person of whom the second-hand dealer purchased had himself obtained the bottles of some one who had purchased them from the manufacturers, or who had their written consent to deal in, use or traffic in them, such fact is only an additional reason for not purchasing such bottles until it is clear that they may be lawfully purchased. The act does, undoubtedly, in thisorespect seriously hamper anyone dealing in these kinds of empty bottles. I can, however, see no constitutional objection to the enactment based on that ground. A mere possessor of ' one of these empty bottles may wish to fill it without using the trade-mark. It is true he is prohibited from effacing the trade-mark, or erasing it, and this, it is said, destroys all property in the bottle, because the person who possesses it can make no earthly use of it. But in the case to which the act is applicable, the person who has the bottle in his possession has no property right in it, and never did have. The consequence may be that he has no right to use the bottle himself, and that he does not stand in a position with regard to the person from whom he procured the bottle and contents to require such person to take it back and give him its value, or an agreed sum, after the contents have been used. This may be his misfortune, but it does not create any right. As he never owned the bottle, or had any property right in it. of. that nature, that fact does not and cannot affect him.

I fail to find any constitutional defect in this statute so far as its general features under review in these cases are concerned.

There is a ground of invalidity now to be noticed that has been urged in regard to that portion of the act which relates to matters of evidence. That portion of § 3 of the act which provides that the having by any junk dealer, or dealers in second-hand articles, possession of these kinds of marked bottles, or kegs, without the written consent of the owner of such marks, shall be presumptive evidence of the unlawful use, purchase and traffic in such bottles, is asserted to be unconstitutional as an invasion by the legislature of the domain of the judicial branch of the government.

It is said the legislature can create and define a crime, but it cannot declare what shall be prima facie evidence of its commission. Whether the crime as defined by the legislature has been committed by an accused is a question for the court and jury, and it is claimed that no direction to the court or jury as to what shall be considered prima fade proof can be given by the legislature. It may be remarked at the outset that this question does not arise in the case of Cannon. The defendant in that case agreed upon a state of facts upon which the judgment of the court and jury was requested, and in the statement it was agreed that the- corporation which owned the marks and bottles in question had never granted any written or oral consent that the bottles should be used or trafficked in and had never sold or given away any such bottle.

In the other two cases the question is fairly up, and must be decided.

The legislature of this state possesses the whole legislative power of the people, except so far as such power may be limited by our constitution. Bank of Chenango v. Brown, 26 N. Y., 467. The power to enact such a provision as that under discussion is founded updh the jurisdiction of the legislature over rules of evidence, both in civil and criminal cases. This court has had lately the the question before it. B’d of Excise Com’rs v. Merchant, 103 N. Y., 143; 2 St. Rep., 760. The act in that case provided that whenever any person was seen to drink in a shop, etc., spirituous liquors which were forbidden to be drank therein, it should be prima fade evidence that such liquors were sold by the occupant of the premises or his agent with the intent that the same should be drank therein. The defendant was an occupant of premises where liquor could not be legally sold to be drank there, and he was prosecuted for selling the same in violation of the act. The only evidence of a sale by the accused occupant was the fact that a person was seen to drink liquor upon the premises, and a conviction was asked for under the provisions of the act quoted. The defendant was convicted, and his counsel urged that the act Was unconstitutional on the gronnd that it violated the constitutional guarantees of due process of law and trial by jury. It was held the claim was unfounded, and that the general power of the legislature to prescribe rules of evidence and methods of proof was undoubted and had not been illegally exercised in that case. It is true it was a case for the recovery of a penalty and was brought by the commissioners of excise and a civil judgment for damages was recovered. It was, however, treated as a quasi criminal case and criminal prosecutions were cited in support of the principle decided in it.

It cannot be disputed that the courts of this and other states are committed to the general principle that even in criminal prosecutions the legislature may, with some limitations, enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. See cases cited in 103 N. Y., supra. The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with the main fact. The inference of the existence of the- main fact because of thé existence of the fact actually proved must not be merely and purely arbitrary, or wholly unreasonable, unnatural or extraordinary, and the accused must have in each case a fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence and given such weight to the presumption as to it shall seem proper. A provision of this kind does not take away or impair the right of trial by jury. It does not in reality change the burden of proof. The People must at all times sustain the burden of proving the guilt of the accused beyond a reasonable doubt It, in substance, enacts that, certain facts being proved, the jury may regard them, if believed, as sufficient to convict, in the absence of explanation or contradiction. Even in that case, the court could not legally direct a conviction. It cannot do so in any criminal case. That is solely for the jury and it could have the right, after a survey of the whole case, to-refuse to convict unless satisfied beyond a reasonable doubt of the guilt of the accused, even though the statutory prima facie evidence were uncontradicted. The case of Commonwealth v. Williams, 6 Gray, 1, supports this view.

Without the aid of the statute, the presumption provided for therein might not arise from the facts proved, although the statute says they shall be sufficient to authorize such presumption. The legislature has the power to make these facts sufficient to authorize the presumption, State v. Mellor, 13 R. I., at 669, and the jury has the power, in the absence of all other evidence, to base its verdict thereon, if satisfied that the defendant is guilty. But the jury must, in all cases, be satisfied of guilt beyond a reasonable doubt, and the enactment in regard to the presumption merely permits, but cannot in effect direct, the jury to convict under any circumstances. The dissenting opinion of Mr. Justice Thomas, delivered in Commonwealth v. Williams, 6 Gray, supra, contains all that can be said against the validity of this kind of legislation.

It is argued, however, that assuming the validity of the provision in cases of excise sales and "kindred cases, such as having in possession game out of season, Phelps v. Racey, 60 N. Y., 10, and in civil cases, such as providing that the comptroller’s deed upon a sale of land for taxes affords a presumption of the regularity of all prior proceedings, Howard v. Moot, 64 N. Y., 262 ; Colman v. Shattuck, 62 id., 348, yet the principle does not apply to a case like this. The reason alleged is that the fact which is to be regarded as prima facie evidence of guilt, viz.: the possession of the bottles by a dealer in second-hand bottles without the written consent of the owner, was not one sufficiently identified in ordinary circumstances with guilt .to make it the foundation of such a presumption.

The case of People v. Lyon, 27 Hun, 180, was a prosecution under the same section of the statute as that in Com’rs of Excise v. Merchant, 103 N. Y.; 2 St. Rep., supra. One of the judges at the general term, in illustration of his meaning that the fact from which the inference of guilt may be drawn should have some kind of natural reference to, or bearing upon the main fact, said that if the legislature could provide for such a presumption, it could enact that the drinking of liquors a mile distant from such premises should be prima fade evidence of a sale on the premises with intent that the liquors should be drank there. Or it might enact that if a dead body were found in any house, it should be prima facie evidence that the occupier of the house had murdered the deceased. The learned judge thought the act in question was entirely arbitrary and had no regard to the connection or want of connection between the fact from which the presumption was to flow and the guilt of the accused. Yet this particular enactment, thus condemned by the supreme court, was upheld by this court in Com’rs v. Merchant, 103 N. Y.; 2 St. Rep., supra. The cases cited by way of illustration by the learned judge in his opinion in the supreme court are, in our view, far beyond the mark and contain nothing in common with the enactment here under review. In the cases supposed there would be, as the learned judge said, no kind of ■ connection between the fact proved and the main fact in controversy. Such an enactment would be purely arbitrary. In this case, however, we think such connection exists. Of course the fact from which the presumption is to be drawn may exist without the existence of the main fact. That is true in all cases. In other words, the two facts are not necessarily inseparable. But in this case the fact of the possession of these kinds of bottles by a dealer in second-hand articles without the written consent of the owner, while it may be innocent, yet the presumption of an unlawful use or traffic in them is not so forced or so extraordinary as to be regarded by sensible and unprejudiced men as unreasonable or unnatural. It is some evidence of the main fact, and the strength of it is properly a matter for legislative enactment in the first instance, subject to its submission to the jury for its deliberatiou and determination. So the presumption from the possession of certain birds out of season, that they were unlawfully killed or taken in the state, is not a certain presumption in any sense. A person might of course have the birds and have procured them in another state and, therefore, not be guilty of a violation of the game law. Yet the presumption of a violation of the statute is not such a forced and unnatural one that the legislature may not enact that it shall be made and thus leave the defendant to explain it. Commonwealth v. Williams, 6 Gray, supra, at p. 6 in opinion of Shaw, Ch. J.

Bor can it be successfully maintained that this species of legislation is to be confined to those cases where the explanation of the fact from which the presumption is to arise is peculiarly within the knowledge of the party who is accused. There are many cakes in the books (and they are cited in the cases already alluded to) where the principle is held that the burden of proving the existence of a fact peculiarly within the knowledge of the accused is at common law placed upon him. Potter v. Deyo, 19 Wend., 361; People v. Nyce, 34 Hun, 298. If legislation were confined to such cases, it is plain that it would be entirely unnecessary and would accomplish nothing, as the law would place the burden of explanation upon the defendant without the aid of the statute. Within the limitations already alluded to and described, the statute may provide for the presumption and call upon the defendant to explain the fact. In prosecutions for the sale of liquor without a license, the supreme court of Massachusetts held that under the old act the prosecution must prove by proper evidence that the accused had no license, and no presumption that he had none could arise from the fact of selling. Commonwealth v. Thurlow, 24 Pick., 374. Thereupon the legislature ■ passed an act that in all prosecutions for selling liquors the legal presumption should be that the defendant had not been licensed, thus reversing what had been held to be the common-law rule in Commonwealth v. Thurlow, supra.

This was held to be within the power of the legislature. Commonwealth v. Kelly, 10 Cush., 69, 70; Same v. Williams, supra. It is true the fact of having a license is one peculiarly within the knowledge of the party licensed. Yet the validity of legislation is recognized in these cases, although it enacts that a presumption shall be made from certain facts which at common law would not give rise to any such presumption. I do not know of any constitutional principle which, while permitting the legislature to enact that the legal presumption arising from the sale of liquor shall be that the person selling had no license, yet, at the same time, prevents the enactment of a provision like the one in the statute under discussion. If the legislature have the power in the first instance, I think it follows that it must have the power in the other. I can see no solid ground for distinction between the two cases. That it has the power in the first case is substantially conceded by all. The inference of guilt, under the provision in question here, is quite as strong as in many other cases that arise under statutory enactments, and we think it sufficiently reasonable and natural 'to warrant a legislature in passing such an act. The opinion of this court upon the question of the policy of this kind of legislation is not at all material, and will not, therefore, be stated.

The effect of the presumption is to call upon the accused for some explanation. If none be given, the jury .may, as I have-said, still refuse to convict; but if they convict, the verdict may be upheld as founded upon sufficient evidence. The provision fills all the requirements of an act of this nature, for it leaves an accused a fair opportunity to relieve himself from the presumption, to explain the circumstances under which the bottles came into his possession, and that they were of such a nature as to show him innocent of an unlawful use, purchase or traffic therein.

A dealer in second-hand bottles intending to obey the law would fairly be open to no danger of unjust conviction? While not giving personal supervision to the receipt of bottles coming by railroad or vessel, or brought to him for sale, he may direct his agents to receive none of the kind mentioned, and when they come from abroad he may so far conditionally receive them as to open their coverings and see what they are, and reject those which he cannot lawfully buy or deal in. Such a momentary or conditional possession, fairly explained and believed by the jury, or in regard to which they were doubtful, would rebut the- statutory presumption and call for an acquittal. Proof that the bottles in question had been sold, or written authority to deal in them had been given by the owners to some one else, would also be a defense. It might be difficult of proof, it is said, and this may sometimes be true.. If difficult of proof, the defendant should think of that before he purchases or deals in them, and decides to run the risk.

The Rhode Island supreme court has held an act unconstitutional which in substance provided that the notorious character of the premises, or the notoriously bad or intemperate character of the persons frequenting the same, or the keeping of implements or appurtenances usually appertaining to a grog shop where liquors are sold, should be prima facie evidence that the liquors were kept on the premises for the purpose of sale within the state. State v. Beswick, 13 R. I., 211; State v. Kartz, id., 528. The same court, and in the same volume of its reports, held that a statute providing that evidence of the sale or keeping of intoxicating liquors for sale in any building should be prima facie evidence that the sale or keeping was illegal, and that the premises were nuisances, was constitutional. State v. Higgins, 13 R. I., 330; State v. Mellor, id., 666.

In the Kartz case, supra, the court said that the introduction in the law of the principle that a person could be punished for what other people said about him was to render all constitutional provisions unavailing for his protection. The distinction is plain, I think, between the two classes of cases, and the statute under review here does not come within the principle which the Rhode Island court held to be a violation of constitutional rights.

We conclude that the provision in question cannot be assailed upon any constitutional ground.

The statute, however, is so framed' that if the proprietors or owners of these marked bottles have once sold them, no matter to whom, the bottles may thereafter be freely dealt in.

In the Bartholf case the evidence shows, as I think, a conditional sale of the bottles, at the option of the party who deposits the money as security for their return. It does not show an agreement to return the bottles. The evidence is that the drivers of the beer or soda water carts who take out the liquors for the owners or manufacturers take them in these bottles, and that they deliver the beer, soda water or other liquor in the bottles to the customers. They (the drivers) then give a receipt to the customers for the deposit given by the customers to the drivers for the safe return of the bottles. This deposit is taken to the manufacturers and they credit the customer with its amount, keeping what is termed a separate deposit account, and when they return the bottles the manufacturers refund the money, and if the bottles are not returned the manufacturers keep the money. That a deposit was given as security for the safe return of the bottles does not prove there was- an agreement to return them. The evidence here shows, as it seems to us, the existence of an understanding that the party may return the bottles and get back his money, or keep the bottles and regard the deposit as a payment, just as he might elect. This construction is strengthened by proof of the fact that the manufacturer acted on the theory that if the bottles were not returned he was to keep the money. The case is barren of any evidence proving an obligation to return the bottles. The bookkeeper said he did not know of any sales of bottles, but the above evidence is all there is on the subject of the delivery of bottles by the manufacturers, and whether it constitutes a sale thereof at the election of the persons receiving them, and upon the condition of the deposit operating as a payment for the bottles, is a question of law.

The taking of security for the return of the bottles from the party to whom they were delivered, so long as there is no evidence of an agreement and the party is under no legal obligation to return them, he having the right to retain them if he choose to leave the money deposited as a payment for the. bottles, amounts in law to a sale of them at the election of the party to whom they are delivered. We think the evidence in this case of Bartholf, at least, shows just such a state of facts.

The case of Westcott v. Thompson, 18 N. Y., 363, is unlike this. An express agreement to return the barrels was there proved, and the agreement to thereafter pay two dollars for such barrels as were not returned was intended by the parties, as the court held upon a view of all the facts, to mean that the manufacturers should have all the barrels after the ale was-drawn, but they contemplated the possibility of the loss or destruction of some, and the consequent inability of the purchaser of the ale to return them, and they intended to fix by the agreement a price to be paid, as the value of each barrel which should not, for the above reason, be re-delivered to the manufacturers.

Here no such agreement to return the bottles is proved, but on the contrary the evidence shows that the right to retain the bottles was with the party receiving them from the manufacturer of the beer or soda water, subject, however, in that case, to the payment of the deposit made for the purpose. This may not be the actual truth of the case. The evidence is quite loose and somewhat unsatisfactory on this branch. The receipts given by the driver are nowhere put in evidence, and whether they contain anything further in the way of an actual agreement to return the bottles cannot be known from this record.

Another trial may show the whole case more fully and accurately.

The Quinn case is not as specific in the offers and exceptions as the Bartholf case. Yet it is seen that even in the former case there was some attempt made to show the facts as to the deposit, and seemingly a ruling of the judge that it was immaterial, or that the court would take notice of such custom. We are not disposed to be technical in such a case, where the subject seems to have been presented to the mind of the court and definitely ruled on by it, and when we think that possible injustice might result from a refusal to notice a point which was in reality raised by counsel and actually passed upon by the trial court.

We think the judgment in the Cannon case must be affirmed, and in the other cases the judgments must be reversed and a new trial ordered.

All concur.


text:
    In the Matter of the Estate of John Callahan, Deceased.

      (Court of Appeals,

      Filed October 3, 1893.)

    Appeal—Surrogate’s court—Executors and administrators.
    An order of the general term affirming the order of a surrogate for an accounting by an executor is not appealable to this court.
    Appeal from judgment of the supreme court, general term, first department, affirming order of surrogate of New York ■county directing the appellant to file account as executor.

      Thos. J. McKee, for app’lt; W. W. Niles, Jr., for resp’t.

       Affirming 49 St. Rep., 425.

   Maynard, J.

We can find no authority for this appeal. The order which the appellant seeks to review was made in a special proceeding before the surrogate of New York and is not final. The respondent claimed to be a creditor of the appellant’s testator, and filed a petition for the judicial settlement of the accounts of the appellant as executrix, and that she be cited to show cause why she should not render and settle her account, and setting forth all the facts essential to confer jurisdiction upon the surrogate to issue the citation. Upon the return day the appellant appeared and filed a verified answer to the petition, alleging facts which, if true, very clearly established that the .respondent was not a creditor of the estate and not entitled to institute the proceeding, and that his demand had been duly rejected upon presentation, and that the six months statute of limitations had intervened to bar an action upon the claim. The respondent then filed, the affidavit of herself and her attorneys •by way of reply, showing that no notice of the rejection of the claim had been served upon her or them. The surrogate thereupon made an order requiring the appellant at a future day to ■•appear in his court and make and file an account of her pro-ceedings as executrix and attend before him from time to time as might be necessary for that purpose. It is from that order that the present appeal has been taken. The record further shows that the appellant neglected to obey the order of the surrogate, and did not appear at the time named and render an account, -and the respondent applied, upon an affidavit setting forth the default, for an order requiring the appellant to show cause why •a warrant of attachment should not issue against her and her letters revoked, which was granted.

Upon the return of that order the appellant appeared and filed an affidavit, substantially reiterating the claim made in her answer to the first petition, that the respondent had no valid debt against •the estate, and also alleging that a copy of the order requiring her to account had not been served upon her and she could not, therefore, be regarded as in default. The surrogate overruled this objection and, in a written memorandum filed, held that the .statute did not require service of the order and that the account must be filed within five days thereafter, or a warrant of attaehunent would issue. This memorandum had none of the qualities of an order, but was in effect simply a continuance of the pro■ceeding until the day named as a favor to the executrix and to •enable her to comply, if she so elected, with the provisions of the -original order. The appellant has treated this memorandum as in itself an order, and in her notice of appeal has appealed therefrom as well as from the original order for an accounting.

The general term very properly dismissed that part of her appeal, and it remains to be considered whether the order of the -general term, affirming the order for an accounting, is appealable here. It is very plain that this is not a final order within the purview of sub. 3 of § 190, but simply the initial step in a ■special proceeding in the surrogate’s court. The point of the •appellant’s contention, if we correctly apprehend it, is that the surrogate had no jurisdiction to make the order requiring her to ■account upon the petition of the respondent; that when it appeared by her sworn answer that the respondent had no valid claim and was not a creditor of the estate, as that term is used in the statutes relating to proceedings in surrogate’s court, the surrogate could ■not lawfully proceed further in the matter, but was bound to dismiss the proceedings, or at least to suspend action therein until the respondent had established her status as a creditor in another "tribunal. It might be argued that as the question is one of juris-diction it would be a more orderly procedure to have it first .finally determined, otherwise the appellant might be compelled to render an account which the surrogate had no authority to require, and while the question might be raised upon an appeal from the decree, it would be too late to afford the appellant an adequate remedy. But if she is right in her position that the surrogate is-devoid of jurisdiction, she may decline to render the account, and permit an order to be entered directing a warrant of attachment to be issued and her letters revoked, which would be such a final adjudication in the proceeding as to be appealable here. This-she seems to have started out to do, but for some reason did not wait until final action had been taken, bút brought the present-appeal, which, we think, is ineffectual for the purposes of review in this court.

The appeal must, therefore, be dismissed, with costs.

All concur, except Finch and Peckham, JJ., not voting.


text:
    The People ex rel. The Edison Electric Illuminating Co. of N. Y., App’lt, v. Edward P. Barker et al., Commissioners of Taxes, et al., Resp’ts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Corporations—Taxes.
    The decision of the commissioners of taxes after application to have-assessed valuation of personal estate reduced, is not to be capricious, arbitrary or fanciful. It must be based upon some evidence or facts, and should be the result of the exercise of judgment and discrimination.
    2. Same.
    Where a corporation makes application to correct an assessment made and the commissioners examine its treasurer on oath by obtaining written answers to printed questions submitted to the applicant, and the answers-are full responses to the questions put, if the commissioners desire anything further or more in detail, or some explanation of data actually furnished, some request should be made or some question put calculated to elicit the desired information. In the absence of any such demand, and where the answers to the questions actually put are reasonably plain and full, the commissioners should not be permitted thereeafter to question the-data actually given on the ground that they were not as full as they might have been.
    3. Same.
    The indebtedness of a corporation must be taken into consideration in arriving at the value of its capital, and where its indebtedness is double the amount of all its assets, its capital has no value for assessment and taxation.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing writ of certiorari to review assessment of taxes.

      Charles E. Miller, for app’lt; George S. Coleman, for resp’ts.

       Reversing 52 St. Rep., 555.

   Peckham, J.

The relator is a corporation organized under the laws of the state of New York, and doing business in the city of New York. The defendants are the commissioners of taxes in that city, and, as such, they assessed the relator on the value of' its personal property for the year 1892 at the sum of $4,500,000. This was the amount of its capitel actually paid in and secured, to be paid in. No deduction was made of the assessed value off any real estate paid for by the company, nor of the amount of its stock, if any, belonging to the state, or to any literary or charitable institution, as provided for by the statute. I think it may be assumed the assessment was thus made because of the failure of the relator to send to the commissioners the written statement provided for in the law, and from which an assessment in conformity with the facts would be more likely to result.

After such assessment was made, and while the books were open for examination and correction, the relator, considering itself aggrieved by such assessment, applied to have the same corrected, pursuant to the provisions of § 820 of the Hew York consolidation act. At the time of such application the relator submitted to the defendants acstatement in writing and under oath. This statement is in the record, and shows the following matters:

The total gross assets, exclusive of patent rights, value undetermined...........;............ $1,108,865 00

Capital stock actually paid in or secured to be paid in.................................. 4,500,000 00

Amount of surplus earnings..............................

Pate of dividend for last year, or last annual dividend, 4 per cent...........................

Indebtedness in detail as follows:

Bills and accounts payable... ■................ 440,503 00

Bonds..................................... 2,250,000 00

$2,690,503 00

Then followed a statement of the assessed value of each portion of real estate owned by the company, by ward and ward map numbers, and aggregating $698,500.

The statement further showed that the stock had hardly an established market value, although there had been a few sales during the year, averaging about 75, the par being 100. It was also stated the value of the stock depended greatly upon the value of the patent rights, the validity of which was in litigation, and that an adverse decision would very seriously affect the value of the stock; that $2,250,000 of the capital stock had been issued for patent rights to Mr. Edison, and those patents were owned by the company. In estimating the value of the assets it was stated that, so far as applicable, the valuation of the tax comsioners had been adopted. This statement was sworn to by the treasurer of the corporation.

After its presentation to and examination by the tax commissioners, the assessment against the relator was reduced to the sum, for taxable purposes, of $1,000,000.

The relator, stilTfeeling aggrieved, sued out a certiorari for the purpose of obtaining a review of the assessment, and claimed that from the facts appearing, and which it is alleged were uncontradicted, it was not liable to be assessed for any amount whatever. The writ commanded the defendants to return, among other things, and besides the written statement above alluded to, “ any other evidence or information, if any, before you or considered by you in arriving at your decision, and if there were no other evidence or information, that you so state.”

The defendants returned no other evidence or information than the statement mentioned, but the return did not otherwise and in terms negative the existence of some other information considered by them. After reciting the fact that the relator filed the written and sworn statement with them, the defendants in their return stated that “thereupon we examined into the complaint so made by the relator, and considered such statement in writing, and having made due inquiry as to the value of the capital owned by the relator, we fixed the amount of such value subject to assessment for the purpose of taxation at the sum of $1,698,500, which we believed to be just,” and after deducting the assessed value of the real estate, a balance of $1,000,000 for taxable purposes was left, which the defendants “ decided to be the sum for which the said capital stock, to wit, the capital stock owned by the relator, was lawfully assessable for taxation for the year 1892,” and the assessment was, therefore, reduced from the original sum of $4,500,000 to that amount.

The application of the relator which it made to the defendants was under § 820 of the consolidation act, and was in relation to the assessed valuation of its personal estate. The section provides that the applicant shall be examined under oath by the commissioners, and. they are to fix the amount of the assessment as they may believe to be just. The record contains no other examination under the oath of the applicant than the sworn statement already described, and it may properly be assumed from the heading, form and contents of that statement, that it was made when the relator made its application, and at the instance of the commissioners, and in answer to their questions printed on blanks for that purpose. The section of the statute requires the commissioners to declare their decision within a certain time. This decision, it need scarcely be said, is not to be capricious, arbitrary or fanciful. It must be based upon some evidence or facts, and should be the result of the exercise of judgment and discrimination. This would naturally be so, and the statute in the succeeding section (821) provides for a certiorari to review or correct on the merits any decision or action of the commissioners in such matter. This does not mean that the court is to place itself in the position of an assessor and review the decisions of those officers upon questions of value or appraisement where the officers proceeded upon information or evidence tending to support their decision. The court generally will not look into questions of fact as to the amount or value of the personal estate of a corporation or individual. These are questions for the judgment of the assessors, and their decisions will orditfarily be sustained. This doctrine has been advanced and decided in several cases, among the latest of which is People ex rel. Rome, etc., R. R. Co. v. Hicks, 105 N. Y., 198; 2 St. Rep., 294.

In the case of a corporation liable to be taxed upon its capital and surplus, as the relator is, the inquiry is as to the actual value of such capital and surplus. People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433 ; 38 St. Rep., 237. When the evidence upon the subject is entirely uncontradicted and is full and complete so that all the necessary facts are established beyond any fair dispute, and if there can be but one inference resulting therefrom, and there is no reason appearing for' doubting the truth of such evidence, a refusal on the part of the assessors to decide in accordance with it would be merely capricious and arbitrary, amounting to a legal error, and it should not be sustained.

The statement verified by the treasurer of the relator is unfavorably criticised on the ground of its generality. It is said to be a wholesale assertion, no details being given, and from which it is impossible for anyone to determine the exact situation of the property of the relator or its real value, and hence the relator has failed to show any error in the decision of the commissioners.

Under the statute the relator made application to correct the assessment actually made in regard to its personal estate. It, therefore, became the duty of the commissioners to examine the applicant on oath. This was done by examining the treasurer, and such examination was made by obtaining written answers to printed questions submitted to the applicant. The answers were full responses to the questions that were-put, and if the commissioners desired anything further, or more in detail, or some explanation of data actually furnished, in order to come to a decision, some request should have been made or some question put to the applicant calculated to elicit the desired information. In the absence of any such demand, and while the answers to the questions actually put are reasonably plain and full, the commissioners should not be permitted thereafter to question the data actually given on the ground that they were not as full as they might have been. If they were as much in detail as was requested, and if no fault were then found with the answers on any ground of insufficiency of information upon a subject embraced in an inquiry, it seems to me that justice and fair dealing require the acceptance of the information given as containing the truth, unless there be some reason founded upon other facts established by competent evidence to cause the commissioners to disbelieve the information given by the applicant or in its behalf and under oath. 126 N. Y., 433; 38 St. Rep., 237, supra.

The commissioners cannot, under such circumstances, avoid the legal effect of the information thus given by stating in a return to a writ of certiorari that they had made “ due inquiry as to the value of the capital owned by the relator,” and had come to a certain decision in regard to it. If they made inquiries other than the questions contained in the written statement, and upon which they acted, they should, when required by the terms of the writ of certiorari give the court some information as to the nature, extent and direction of such inquiries, and they should state what the information was which they obtained and upon which they based their decision. Otherwise the commissioners might always return that they had made “ due inquiry ” and had come to a certain decision, and the court would be powerless to give relief, notwithstanding the decision might be clearly against the evidence which was sworn to and uncontradicted on the part of the applicant, and, if believed, entirely sufficient to warrant the correction claimed hy such applicant.

In this case all the questions which the commissioners placed in their printed blanks were answered by the treasurer, and, so far as the record shows, to the satisfaction of the commissioners. At least no demand for further or more detailed information appears to have been made, and we think that the commissioners, in the absence of any reason for disbelieving it, were bound, under these circumstances, to assume the truth of the information thus obtained. We think for these reasons it must be taken as true that when the statement was made the total gross assets of the relator, exclusive of patent rights (whose value was undetermined), was $1,108,865; that its capital actually paid in or secured to be paid in was $4,500,000; that it owed in the shape of bills and accounts payable $440,503, and in the shape of bonds $2,-250,000; that the assessed value of its real estate paid for by it was $698,500, and that it had issued $2,250,000 of its capital stock to Thomas A. Edison in payment for patent rights owned by him and transferred to the company for that consideration. The question is, what do these facts prove as to the actual value of the capital of the relator ? It had no surplus, as the statement showed.

The subject of assessment was the capital of the corporation. The assessment must by law be at the actual value of the subject assessed, and when that is known and ascertained no other value can be substituted for it. 126 N. Y., 433, supra, at page 448; 38 St. Rep., 245. If facts sufficient were disclosed in this statement from which this value could be accurately discovered, these facts must be conclusive on the question, assuming them to have been sufficiently proved by uncontradicted evidence, as already set forth, and that there was no reason which appeared in evidence for disbelieving them. Under such circumstances, and for this purpose of an assessment, the market price of the shares of the stock into which the capital is divided is not material, nor the amount of the dividends which may have been paid by the company. These are not the subjects of taxation under the law relating to the assessment of corporations, and such facts are immaterial when the exact data are given from which the value of the capital •can be accurately ascertained. In the absence of these exact data the facts just stated, as well as others, may be looked at for the purpose of obtaining from them, as well as the nature of the facts will permit, what is the value of the capital and surplus, if any there be. Outside of its patents, the total gross assets of the relator, as above stated, included all its capital. These gross assets, it is thus seen, did not equal the amount of its indebtedness ($2,690,503), saying nothing of the deduction to be made on account of the assessed value of its real estate ($698,500).

This indebtedness must in the nature of things be taken into consideration in arriving at the value of the capital of the relator. And when it is seen that the indebtedness of a corporation is double the amount of all its assets, it follows upon the system adopted by the state for the assessment of corporations that the actual value of the capital of such a corporation is zero. In other words, capital has no value for assessment and taxation. If it be assumed that the' portion of the capital of the relator invested in patents is not taxable, the case of the relator is clearly made out and the commissioners should not have made any assessment whatever against it

The relator asserts that the portion of its capital invested in patents is not taxable. It bases such claim upon two grounds: -one that the state statute does not provide for such assessment, and the other that patents cannot be assessed or taxed by or under •state authority. We think the state statute reaches the case of patents where held by corporations, if such patents are not otherwise exempt from taxation. In defining the terms “ personal ■estate ” and “ personal property ” as used in the chapter on taxation (chap. 13 of the first part of the Revised Statutes), it is said that such terms shall include, among other things, “such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate.” 1 R. S., -387, § 3. This would cover the case of any portion of the capital of a corporation which was invested in patents. The claim for exemption must be founded upon the second ground above stated, viz., that patents cannot be taxed by or under state •authority.

A tax upon the actual value of the capital of a corporation is a tax upon the property in which such capital may be invested, and if any of such property is exempt from taxation the value thereof must be excepted from any assessment of the capital. People v. Com’rs of Taxes and Assessments, 23 N. Y., 192, per Denio, J. at p. 195; People ex rel. v. Com’r, 2 Black (U. S.), 620, 629 ; Bank Tax Cases, 2 Wall., 200; Van Allen v. Assessors, 3 id., 573. The assessment of the shares in national banks against the individual owners, where the capital of such banks had been invested in bonds of the United States, was sustained under the act of congress, for the reason that the shareholders were not the owners of the bonds, but the corporation was, and the corporation was not taxed by reason of an assessment upon its shareholders. Van Allen v. Assessors, 3 Wall., supra.

This question as to the validity of the taxation by or under •state authority of patents issued by the United States for new and useful inventions is a most important one. We do not think it necessary to decide it in this case, for the reason that we regard the assessment as clearly erroneous even upon the assumption that the patents are taxable. The statement of the treasurer shows that the patents, assuming them to be of the par value of the stock which was issued in payment for them, viz., $2,250,000, would make the total assets of the relator over $3,358,865. The indebtedness amounted to $2,690,503, and the assessed value of the real estate to the further sum of $698,500, or a total amount of $3,389,003, which is over $30,000 more than the total assets of the relator, including the patents. This clearly shows that an assessment of $1,000,000 upon the capital of the relator must be the result of an erroneous process for arriving at the value of its assessable property.

It is said, however, that as the treasurer stated in his verified statement that in estimating the assets he had adopted, so far as applicable, the valuation established by the tax commissioners, the rest of the valuation must be that of 'the treasurer, and that the “due inquiry” made by the defendants simply resulted in a difference of opinion as to the values between the treasurer of the relator and the assessing officers, and the latter are the persons to make the assessment.

I have already alluded to the position of the defendants as to their having made “ due inquiry,” and we must for the purpose here in controversy assume that the value of the assets, exclusive of the patents, was as stated by the treasurer. As to the value of the patents it is not stated in so many words what such value was. It is, however, stated that stock to the amount of $2,250,000 was issued in payment for the patents. It is also stated that their validity was in litigation and not yet decided, and the value of the stock of the relator depended largely upon the value of the patents, which constituted to a great extent its assets, outside of the real estate and conductors.

Upon these facts, I think, while it may be said the value of the patents was to a certain extent undetermined and contingent, there was nothing whatever upon which to base a finding that their value was over a million dollars beyond the par value of the stock given in payment for them. This would have to be decided in order to uphold the assessment, if we are to take the value of the other assets as stated by the treasurer. The sworn statement tends strongly to the view that the patents, under the existing circumstances, were not of a greater value than the par of the stock issued for them, and they should not be assessed at more than that. We might almost take judicial notice that the par value of stock issued by a corporation in payment for patents to be transferred to and used by it is never less than the real value of such patents under highly favorable views thereof. The fact that stock of the par value of $2,250,0Q0 had been issued for the patents in question is quite strong evidence that they were not in reality worth more than the par value of the stock so issued. The fact that their validity was in dispute adds force to the corfectness of the conclusion. At any rate the commissioners had the opportunity of examining the officer on oath, and they availed themselves of the same and asked all the questions they desired to and they were all answered, and if they failed to ask as to the exact value of the patents, they ought not to be heard to complain so long as the facts actually proved by the relator in regard to them were sufficient to justify no other inference than that the value Was certainly not in excess of the par value of the stock issued in payment for them.

The assessment actually made has, in our opinion, no evidence to support it. Upon no view of the facts actually proved, and which are wholly uncontradicted, and which there is no reason to disbelieve, so far as there is any evidence, can the assessment be sustained, and it is plain that either some radically erroneous theory for an assesment has been adopted by the commissioners, or that their decision is wholly without evidence to support it, and that their action has resulted in an assessment which is illegal and cannot be sustained in our view of the law.

In this case we are not differing with the assessors upon a mere question of values. The evidence is such as to show that there is no basis for the assessment if the sworn statement of the treasurer be accepted, and under the circumstances we think it appears that it should have been.

Our decision in no way offers any improper facilities for the escape of corporations from proper assessment and taxation. If the defendants herein had information,which warranted an assessment such as they made, notwithstanding the sworn statement, they should have returned that information, and thus have shown to the court what it was upon which they acted in making the assessment they did. If the statements given under oath by the applicants are not sufficient in detail or otherwise, then more questions may be asked and the examination continued to the satisfaction of the commissioners. If they have any fair reason or ground for disbelieving the sworn statements, they are not bound by them. But they cannot capriciously reject or disregard them and assess in total defiance of the facts thus sworn to.

Without passing upon the question whether patents issued by the United States as above described are taxable or not, but in this case assuming they are taxable, we think the assessment in question is illegal and must be set aside, and to that end the orders of the general and special terms must be reversed. We think we ought not to allow costs in such cases, because the defendants are public officers acting in the bona fide discharge of their duties, and they should be protected in such discharge from any fear of costs consequent upon an honest mistake.

Order reversed, without costs.

All concur.


author: Earl, J.

text:
    The People ex rel. The Harlan & Hollingsworth Co., App’lt, v. Frank Campbell, Comptroller of the State of New York, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    Taxes—Foreign corporation.
    Relator was engaged in manufacturing steamships and railway cars, and equipping and repairing the same, and all that business was carried on in the state of Delaware. All the parties interested and all its officers resided there, and all its real business transactions were conducted there. It did no manufacturing in this state, kept no money here, and had no property here except a small amount of office furniture contained in a hired office in charge of an agent, used only for conferences with its patrons as to contracts, etc. Held, that as relator did not employ any of its capital within this state, there was no basis for the imposition of taxes upon it as a foreign corporation doing business in this state.
    Appeal from judgment of the supreme court, general term, third department, affirming decision of the comptroller ^nd dismissing certiorari.

      Henry B. B. Stapler and Henry W. Smith, for app’lt; S. W. Rosendale, atty-gen., for resp’t.

       Reversing 49 St. Rep., 917.

   Earl, J.

The relator is a foreign corporation having its charter and local habitation in the state of Delaware. The comptroller, claiming that it was “ doing business in this state,” imposed taxes upon it, on account of such business, under the act, chapter 542 of the Laws of 1880,and the acts amendatory thereof, chapter 861, Laws of 1881; chapter 501, Laws of 1885 ; chapter 468, Laws of 1889, for the years 1889, 1890 and 1891, computing the taxes upon the basis of $25,000 capital stock “ employed within this state.” Subsequently, the relator, claiming that it did not do any business or employ any of its capital within this state, applied to the comptroller to review and readjust the taxes ; and after hearing the relator and reviewing and considering its evidence submitted to him, he refused to make any change in the taxes imposed.

Subsequently the relator obtained a writ of certiorari to review the action of the comptroller, to which he made return, and the general term affirmed bisection.

The comptroller makes some preliminary objections to the maintenance of this proceeding, not involving the merits, which must first be considered. He claims that the application for the certiorari was not made within thirty days after service upon the relator of the notice of the settlement of the taxes, as required by § IT of the act of 1885. It is quite true from the dates given in this record that the certiorari was not applied for in time. But it does not appear that such a point was taken in the court below. There the proceeding seems to have been entertained without any such objection, and the action of the comptroller was affirmed. If he desired to avail himself of such an objection he should have moved then on that ground to quash the writ, and that would have given the relator an opportunity to meet the objection by showing that by some agreement or estoppel he could not avail himself thereof. It is too late now for the first time to raise the objection.

The comptroller further claims that the relator did not submit to him any competent evidence upon its application for a review or resettlement of the taxes as required by § 20 of the act of 1889. It appears that the relator did not furnish witnesses to be sworn and examined orally before the comptroller. The evidence was in the form of affidavits furnished to and received by him. His decision shows that he considered the affidavits as evidence, and it does not appear that anyone objected to them as competent and sufficient evidence. The comptroller could doubtless have required the witnesses to be examined orally before him. Bat it was for him to determine how the evidence should be presented before him, and in this, as in many other legal proceedings, affidavits may be received and treated as competent evidence.

So the merits of this controversy are before us and it must be determined upon the facts appearing in this record. There is no dispute about the facts.

The business of the relator was to manufacture steamships and railway cars, and to equip and repair the same, and all that business was carried on in the state of Delaware. There all the parties interested in the relator and all its officers resided, and there all its real business transactions were conducted. All its contracts were made there and all its products were sold and delivered there. It did no manufacturing in this state, kept no money here and had no property here except a small amount of office furniture, and in fact it transacted none of its corporate business here. It kept a hired office in the city of Hew York which was in charge of a resident salaried agent, and the office was maintained “ solely for the convenience of itself and patrons, the only design of said office being a meeting place for the discussion of questions which are likely to arise preliminary to the signing of contracts; for appointments and conferences with such of its patrons who, being in the city of Hew York from time to time, may desire the convenience of an office for communications with it, and for ascertaining through its agent in charge of the same what contracts are offering in that locality, and the character and responsibility of the parties offering the same, the contracts themselves being made and signed in every case at the home office in Wilmington; ” and this is all the claimed business done by the relator in this state; and upon these facts can it be said that it was, within the meaning of the statute, “doing business in this state?”

We leave this question unanswered, as we are satisfied that it did not employ any of its capital -within this state, and that, therefore, there was no basis for the imposition of the taxes. As before stated, except the small amount of furniture in its office, it did not have or keep any property of any kind within this state, and it did not disburse any money in this state. The only obligations' it incurred in this state were for the rent of the office and the salary of its agent, and they were discharged by checks drawn in the state of Delaware, on a Delaware bank, and paid in that state. Those checks were obligations of the relator, and not property in any sense belonging to it, and they were no portion of its capital. They operated as payments made in the state of Delaware, and there was no ground whatever for saying that it employed $25,000 of its capital, or any other sum, within this state. We do not think that the office furniture could fairly be considered as capital employed within this state. But even if it could be, the amount is too small for serious consideration under the acts mentioned.

We are, therefore, of opinion that the order of the general term and the decision of the comptroller in the imposition of the taxes should be reversed, with costs of appeal to this court.

Order reversed, with costs of appeal to this court.

All concur, except Maynard, J., taking no part.