author: Peckham, J.

text:
    The People, Resp’ts, v. Joseph Wood, App’lt.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Appeal—Criminal law—Code Crim. Pbo., § 642.
    Where on a criminal trial evidence of a material nature, of a kind most important and predominating, shall have been offered on the part of defendant and ruled out on the objection of the People and under an exception, such ruling demands the reversal of the judgment even if ^ the court might be inclined to think that upon the whole with such evidence admitted the cefendant should have been convicted, and this court_ is not at liberty to say under Code Crim. Pro., § 543, that the error is merely technical or that the substantial rights of defendant have not been affected.
    3. Same—Homicide—Insanity.
    Upon a trial for murder, where the defense was insanity, evidence had been given tending somewhat toward proof of a diseased condition of the brain of the defendant, and also of injuries to the head when a child, subsequent eccentric and irrational actions, dizziness, etc., and that he was subject,to great excitement on slight provocation. Defendant’s counsel then offered to prove by the prisoner’s wife that a short time before the day of the homicide she had told him that her father, the murdered man, had stolen defendant’s potatoes, and also that she had told defendant a week before the homicide that her father had criminally assaulted her both before and after her marriage, both of which offers were rejected by the court. Held, error; that it was admissible for the purpose of showing an adequate cause for the state of mind existing subsequent to the communication, and as corroborative, more or less strongly, of the mental condition which the other and separate evidence in the case tends to prove.
    3. Same.
    The subsequent conduct, appearance and conversation of the person to whom the communication is made are the proper subjects of proof for the one purpose of showing what effect upon him such communication had, and that it rendered him insane within the legal definition of the term at the very time of the commission of the deed.
    4. Same—Deubeeation.
    An insane man frequently deliberates, and after the most mature deliberation commits acts which but for his insanity would be crimes. The question always is, not did the party deliberate, but was he at the time insane within our legal definition of that term.
    5. Same—Evidence—Peivilege—Penal Code, § 715.
    The court held that it was not the right of the defendant to take the objection, but that it was the personal privilege of the wife, and she was put to her election whether she would answer or not. Held, error; that the Penal Code, § 715, does not leave the matter entirely to the discretion of the witness, but that the other party interested may object to any confidential communication between a husband and wife, and that upon such objection being made, the witness not only cannot be compelled, but that she has no right to make the disclosure.
    6. Same.
    Evidence as to the conduct or appearance of the wife of the defendant subsequent to the killing is inadmissible.
    Appeal from judgment of conviction of defendant of murder in the first degree, entered upon a verdict rendered by a jury in the oyer and terminer of Warren county.

      J. M. Whitman, for app’lt; Francis A. Smith, for resp’ts.
   Peckham, J.

This is an appeal from a judgment of conviction of defendant of murder in the first degree, entered upon a verdict rendered by a jury in the oyer and terminer of Warren county in September, 1890.

Our jurisdiction to review directly such a judgment rests upon the statute, chapter 493, of the Laws of 1887. Under that statute this court can grant a new trial upon exceptions taken to the rulings of the trial court, and it can also grant such new trial when it is satisfied that the verdict was against the weight of evidence or that justice requires it

The defendant through his counsel in this case does not seek our interference under this latter provision of the act. He comes here upon exceptions and asks a review thereof as his legal right, and that a new trial shall he granted him because of legal error committed by the court below on his trial.

Where exceptions have been taken by a defendant on a criminal trial the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Code of Grim. Pro., § 542.

Under this provision I think it plain that if evidence of a material nature, of a kind most important and predominating, shall have been offered on the part of defendant and ruled out on the objection of the People and under the exception of the defendant, such ruling is error which demands the reversal of the judgment of conviction. This is true even if the court might be inclined to think that upon the whole, with such evidence admitted, the defendant should have been convicted. A defendant in a criminal prosecution is entitled to a legal trial conducted in a proper way and decided upon legal evidence. Where evidence of such a character has been offered on the part of the defendant, and erroneously rejected by the court, and if it is of a material nature, and if an exception has been duly taken, we are not at liberty, under the section of the Code of Criminal Procedure above cited, to say that the error is merely technical or that the substantial rights of a defendant have not been affected. The defendant has the right to submit material evidence in his behalf to the jury in order that it may pass upon its weight and credibility, and if he be deprived of that right, it is a substantial one which, when properly presented to this court by an exception, will require a reversal of his conviction. This does not m the least affect the existence and force of the other and well-known rule that a, new trial will not be granted even in a criminal case for an erroneous ruling of the court upon some legal proposition where the appellate tribunal can see that by no possibility could the error have worked any harm to defendant. Stokes v. People, 53 N. Y., 164.

In the case of the rejection of important, material and competent evidence for the defendant, this court cannot say, unless in a most extraordinary case, that by no possibility could the error harm the defendant, or that such error was only technical and that no substantial right of the defendant was affected. A substantial right of defendant in such case is affected, even though the appellate court would with the evidence before it still come to the same conclusion as the jury did without it. The defendant in such case has the right to insist that material and legal evidence offered in his behalf shall be received and submitted to a jury and its opinion and verdict taken thereon, and not that of any merely appellate tribunal.

On. looking through and reading attentively the very voluminous record which has been presented to us in this case I am satisfied that many errors were committed upon the .trial, and in the case of one at least the error is of such a nature as to necessitate the reversal of the judgment.

A brief reference to the general facts of the case is all that is necessary to enable one to see the materiality of the evidence rejected by the court when offered on the part of the defendant. The evidence on the trial showed that the killing took place near a small village or hamlet called Stony Greek in the county of Warren about 5 or 5:80 P. M., on the tenth of May, 1890. Leander Pasco, the deceased, was a small farmer or laboring man, living within a couple of miles of the above named village, and was between fifty and fifty-five years of age. His wife had been dead a few years and his daughter about ten years of age was living with him, as was also a woman who occupied the position of his housekeeper. His sons, George and Alvin, respectively about twenty and sixteen years of age, were sometimes there, but had not been for a short time before the killing. A couple of months before that event, the defendant had married a daughter of Pasco, and it is claimed that such marriage annoyed him and he had ceased to be on friendly terms with defendant from that time. The marriage took place away from home and Pasco did not know of it at the time. A few weeks before the killing the defendant took his wife and went to a small house or “shanty,” as some of the witnesses called it, about a mile from Stony Greek, and there commenced housekeeping. There was evidence tending to show that the defendant was exceedingly fond of his wife, who was a young woman twenty-two or twenty-three years of age. The defendant was a man about thirty-five years of age, and was also a small farmer or laboring man. Both the deceased and defendant belonged to a very uneducated, illiterate and ignorant class, neither having acquired much property and both spending a portion of their time in hunting and fishing.

On the afternoon of the tenth of May (the day of the homicide), both men were seen in the village of Stony Creek, and were overheard in a war of words in the public streets in which each accused the other of misconduct. The defendant was seen on his way home about three or four o’clock in the afternoon, and the deceased was seen passing out of the village in the direction of the road to his home about five or five thirty in the same afternoon.

It was raining and the deceased carried an umbrella and a small bundle covered over with paper. A short distance from the village, and as the deceased was proceeding upon a lonely road-lined on each side with bushes and woods, except a portion of one side where a small fallow of a couple of acres skirted the edge of the road, he was shot in the back by shot from a shot-gun and was instantly killed. Mo one saw the killing, and, although two reports of a gun were heard in quick succession at about half after five, the deceased was not discovered until nearly dark, when he was accidentally seen lying in the road by a man walking along it on Ms way home. The alarm was given and the next day, Sunday, a critical examination was made. From it the people discovered the rags which had formed the wadding of the gun, loot-prints in the fallow from peculiar boots, which were soon seen to be exactly like those made by the boots worn by the defendant, who was present on the Sunday at the place where the body lay and where quite a crowd had congregated. The rags were seen to be like the lining of defendant’s coat, which was torn, and were subsequently most satisfactorily identified as' coming from and forming part of such lining.

Other evidence was given which it is unnecessary to detail, but the whole showed quite satisfactorily that the defendant had perpetrated the Hlling. He had, however, in addition to the plea of not guilty, put in the further plea" of insanity, and so evidence bearing upon that defense was offered and received.

Evidence was given tending to show that the defendant when a young boy had been severely cut in the head by a blow from an axe, which had slipped out of the hands of his father, who was cutting wood; and there was evidence from which the jury might infer that the skull had been then fractured. He was unconscious for two or three hours, and was for some time quite ill from the immediate effects of the blow. Within a few years thereafter he fell from a barn and struck on his head on a stony surface and was again rendered unconscious for some hours.

After these injuries it was claimed that he frequently acted in a strange manner, not as he had formerly done. He often complained from that time of violent pains in his head which rendered him unable to work. He had been guilty of acts which those who saw them characterized as irrational, such as pounding with his fist a lath and plaster wall until he had made a hole in it, without apparent cause, and while sober and claiming the next day not to remember anytMng about it. He had dressed in an eccentric and odd manner, in woman’s clothes over Ms trowsers, which were cut off below the knee, and in a woman’s bonnet, and in such apparel had gone to “ meeting ” and to school, although then grown up. He had been seen to trade off a good hat for a large hornet’s nest, which he wore on Ms head instead of his hat for a long time. He was subject to some kind of discharge from his eyes, which difficulty would suddenly come upon him after he had complained of his head. He was also subject to sudden attacks of a kind of dizziness in the head and temporary blindness consequent thereon, and had himself denominated such attacks his blind staggers.”

He was eccentric and was called odd, very vehement and subject to great excitement on slight provocation. After his incarceration in jail on the charge of murder, he was examined by a physician who claimed to find traces of the wound on his head, also what he thought was a fracture of the neck near the base of the skull, the effect of which was to prevent the defendant from turning his head as much as the ordinary man can. He also thought that he discovered that the spine from the base of the skull down to what he termed a tumor between the shoulders was quite sensitive to the touch, so that the' defendant flinched when that portion was touched by the physician. The eyes were not then properly responsive to light, and there was a lack of proper sensitiveness of the skin under experiments then made by the doctor. From the examination thus made the doctor was of the opinion that the defendant was suffering from a diseased brain. Other witnesses spoke of occasions when the defendant seemed unable to count money which he had in his hand, and asked others standing by to count it for him, and at such times his conduct seemed, to the witnesses, irrational.

This was substantially the evidence upon the question of the insanity of the defendant, or the diseased condition of his brain, at the time when the wife of defendant was called as a witness for him. Counsel for defendant offered to prove by her that a short time before the day of the homicide she had told the defendant, under the circumstances set forth in the offer, that her father had stolen his, defendant’s, potatoes, some three years before. This was offered for the purpose of showing the effect it had on defendant’s- mind in connection with other matters. This was objected to as immaterial and incompetent, and sustained, and the defendant excepted.

The defendant’s counsel then proved that the witness had .another conversation with her husband on the 3d of May, the week preceding the homicide, in which, as the record states, she gave “ him some information as to certain acts which her father had committed upon her person.” The counsel for the defendant then asked her to state what it wa's she told her husband. This was objected to, and the record then shows the following most extraordinary proceeding:

By the Court: The same rule will apply to this offer as applies to the other. I sustain the objection, and. rule the evidence out upon the grounds:

First. That it raises a collateral issue, which is not on trial here, and ought not to be introduced; that conversations between this party and the defendant are not competent evidence in his favor in this action.

Second. It is clearly not a case where Pasco was killed upon sudden provocation or sudden excitement, in consequence of some extraordinary and unexpected and sudden information to this defendant, It is not competent as a defense to show the provocations that discoveries were made, where the murder was committed with the kind of deliberation which is clear and evident in this case, and,

Third. It is a proposition to try an indictment against Pasco, deceased, against the dead man, a crime which this witness would be obliged to confess she voluntarily participated in. It should have been brought to trial in the lifetime of her father, when he ■could have been here to have been heard on the subject. It would be a gross piece of injustice if after this defendant and this witness, instigating him to commission of crime, and to cause the murder of her father, to be allowed to set up and establish this infamous charge against the dead man, whose mouth is closed forever. It would be no justification of the murder, and under such circumstances, if this female had become so abandoned as to be filling voluntarily to go on the stand and thus testify to a case against her own' dead father, who had been murdered, that would throw infamy and discredit eternally upon his reputation as well as hers, she ought not to be permitted to do it. It is an issue that does not belong to the case here, and it would' not be of any value under the circumstances in this case and ought not to be, if it were admitted. The defendant is at liberty to furnish any evidence that he is able to on the subject of the mental condition of this man. That is the defense, but I do not propose, if it is possible to avoid it, to undertake to try the dead man instead of the defendant who is on trial here.

Counsel for defendant: It is apparent, from the applause of the audience, that incestuous rape is considered a venial offense. '

By the Court: As the counsel has made that statement, I will state that this court would discredit the story of this female, and I think any person of intelligence would do it if she was permitted to give testimony.'

Defendant excepts.

The counsel for the defendant then offered to prove in detail that the witness told the defendant on the evening of the 3d of May, the week before the homicide, that her father had before her marriage to the defendant criminally assaulted her and forced her against her will to have intercourse with him on more than one occasion, and that since her marriage and within a very short time he had come to their house in the absence of defendant and had successfully made upon her the same kind of an assault, and had threatened her that if she told of it to her husband or any one he would kill her. The counsel said he offered the evidence not as proof of the truth of the statement, but he would show that the defendant believed it, and it was offered for the purpose of showing the effect of the communication on defendant’s mind, and ' that it operated on it to such an extent as to render him insane on the day he committed the offense.

This evidence was objected to and the objection sustained and the defendant excepted. The record then proceeds:

By the Court: If the evidence was admitted I would regard it almost conclusive evidence that this woman herself was anxious to have her father murdered, and that she was operating in complicity with this man to put up the business, and do an act of this-, kind. I sustain the objection and overrule the offer on the ground that it is plainly apparent in the case as it stands, that it is not a case where a person who committed the crime was moved by sudden impulse. Whoever committed that murder did it. with great deliberation, both of mind and plan and surroundings.

Counsel for defendant:' Defendant excepts to the ruling of the court.

The defendant’s counsel made other offers of the same nature and in detail, which were overruled, and the counsel was somewhat severely criticized for making such offers.

The first question that arises is as to the correctness of the ruling of the court in excluding this proposed evidence. I think the learned court clearly erred.

The counsel for the prosecution seeks to sustain the correctness of the decision by referring to those English and American authorities which hold the individual guilty of murder in killing the man who has committed adultery with the prisoner’s wife, unless the person killed is detected in the very act of such adultery. See cases collected in 9 Am. & Eng. Enc. of Law, 585, note 1. The cases proceed upon the principle that the immediate killing of the adulterer by the husband who has detected him in the act was probably perpetrated under such a sudden and uncontrollable passion that the offense was reduced from that of murder to manslaughter. But if the husband only heard that the person had been guilty of such an act and thereupon met or sought him out and killed him, it has been held that in such case, as time enough had elapsed for the passion to cool, the killing was murder. Reg. v. Kelly, 2 Car. & Kir., 814, is to this effect, although in that case it was the woman who was killed. To'the same effect in principle, Reg. v. Fisher, 8 Car. & Payne, 182. There are many other authorities of the same purport, both English and American.

In this state it has been held that the fact that information of the wife’s adultery had been imparted to the husband can only be proved when it is shown that such information was given so near the time of the commission of the crime that the court can see there was not a sufficient period for the passion it would naturally excite to subside. This was held in the case of Sanches v. People, 22 N. Y., 147. That defense was not insanity in the proper sense of the term. It was a mere figure of speech to designate the defendant as possessed of a strong and irresistible passion.

These cases proceed upon the theory that the passion such a discovery or communication may excite in the breast of a man whose brain is in a normal condition is sudden, irresistible and deadly, and the evidence is admitted to show the existence and the cause of such a passion at the very time of the commission of the crime, and so to show that it was not of the deliberate nature implying an intent to kill which is required in the case of murder.

The claim is made that the crime is only manslaughter; that the crime was done in the heat of passion and without intent to kill, and the evidence is received to show an adequate cause for the passion and the absence of the intent. If the intent to kill existed it might still be murder in this state. Shufflin v. The People, 62 N. Y., 229. Of course, on this theory, proof of this communication to the defendant and its nature, occurring, as it did, at least a week before the commission of the offense, would be inadmissible, for a week is a period much more than enough for the cooling time allowed by law. I concur that the inference from the evidence is substantially irresistible that the person firing the gun did so with deliberation and intended to kill It is not, however, upon any theory of this kind that the evidence is admissible. It should be admitted for the purpose of showing an adequate cause for the state of mind existing subsequent to the communication.

The subsequent conduct, appearance and conversation of the person to whom the communication is made are the proper subjects of proof, for the one purpose of showing what effect upon him such communication had, and that it rendered him insane within the legal definition of the term at the very time of the commission of the deed. Evidence had already been given tending somewhat toward proof of a diseased condition of the brain of the defendant before the communication was made to him. Evidence of such a nature having been given, the communication may then he proved for the purpose of showing the effect it had upon defendant’s mind, and to show a reason for the alleged change in the appearance and conduct of the accused and to prove that in truth such a communication acting upon a diseased and weakened brain produced insanity at the time of the commission of the crime. It is not disputed that a fall on the head, a physical injury to the brain, or other physical and sufficient cause for insanity can be proved. The defense is not confined to proof of the condition of the mind of defendant at the moment when he struck the blow or fired the shot. Any material fact which might account for or naturally lead to insanity at that moment may be proved. Why should not the defendant have the right to prove a moral cause which might act upon a brain already diseased and might result in insanity as naturally as blows upon the head? This in connection with evidence tending to show insanity at the time of the act done, is proper. I do not say that proof of these facts, any or all of them, is' proof of insanity. That is for the jury to decide. But it is competent for the reason that all the facts are material for the purpose of enabling the jury to say what-was the condition of mind of defendant when the deed was perpetrated. ' The defense is entitled to prove more than the fact that after a certain time when something was told defendant he exhibited certain changes of deportment or appearance. He is entitled to have the jury see that there was a cause sufficient to account for and to create such alteration in conduct and appearance. It greatly tends to strengthen the proof of such alteration. It is admissible for the same reason that evidence is competent to show that the party had a fall on his head, or had been a sufferer for years from some kind of physical ailment which had naturally a depressing influence on the mind.

The physicians for the defendant all laid great weight upon the original injuries to the head and to the character of the communication made to defendant by his wife. ' The defense has the right to more than proof that defendant was a singular person, sometimes seemingly wild and guilty of foolish actions or such as-might be termed irrational acts or speeches. Facts maybe shown which might account for such actions and appearances, and which when submitted to competent medical skill might be said to reveal a full and adequate cause for the mental aberrations testified to, or they might be of such a nature that the ordinary man, not a physician, could from his own experince say that they were enough to account for such mental condition. In fine the evidence is admitted on the ground that it is corroborative, more or less strongly, of the mental condition which the other and separate evidence in the case tends to prove. It must be admitted for the purpose of showing that the defendant was at the time of the commission of the offense insane within the legal definition of the word. It may well be that in many instances the evidence will fail to create even a doubt in the minds of the jury as to the sanity of defendant when the deed was committed. That does not detract from the admissibility of the evidence. The defense will in that event fail to make out the case. This species of evidence was admitted in the case of People v. Cole, tried in the Albany oyer and terminer some twenty years ago, and it was admitted on the ground taken here. There had been a large amount of evidence already given to show prior to the communication a diseased and depressed mental condition of the defendant, and the communication made to him by his wife was admitted as evidence for the purpose of showing its effect upon his mind, and as furnishing an'adequate cause, under all the circumstances, for the alleged fact that he was insane when the act was done. This was the claim of the defense and it is the theory upon which the evidence is, competent, and it is not admitted as showing the truth of the communication. Still less is it admissible for the purpose of showing sudden passion. The communication is too remote in time from the act to render the evidence competent for that purpose.

It is not, however, necessary that the evidence should already show that the defendant was actually insane. If that were so, the defendant would be entitled to an acquittal without it. In this case, however, evidence had already been given upon the subject which, as I have said, somewhat tended to show that the individual before the communication was made to him was a person suffering from some diseased condition of the brain, and the actual effects of such disease in the way of irrational acts and declarations had been somewhat more or less remarked upon by others. When such facts have been shown, the evidence is not affected as to its competency by the fact that the act was done deliberately. Deliberation is the answer which the prosecution makes to the defense of ungovernable passion suddenly evoked, by the sight of an unfaithful wife in the arms of her lover. If, instead of taking immediate vengeance upon the man, the husband postpones it, and subsequently kills the adulterer, the law says the cooling time was sufficient, and the deliberation shows, the necessary intent to commit murder. The evidence is admissible in this case upon the totally different theory already discussed.

Whether it is necessary in all cases where the defense of insanity is interposed to show the existence of a prior morbid and diseased condition of the mind before evidence of the nature offered in this case should be admitted is not now the question. We think there was enough evidence tending somewhat in that direction to render the proposed evidence competent even upon such restricted theory. The case does not require it, and we do not hold that the evidence is admissible in any event We. defer the discussion of the question until it necessarily arises. To show that the effect was at most the putting of the party in a blind, reckless, passionate or vindictive mood is no defense.

The ease of Spencer v. The State of Maryland, 69 Md., 28, is not opposed to these views. The counsel for the defendant there offered to show by the defendant himself his mental condition (but not that he was insane) at the time of the killing. It was rejected unless the counsel would give the assurance that he would fallow it up with other proof tending to show that at the time of the homicide the prisoner was insane, and that assurance the counsel declined to give.

The refusal to admit the evidence was upheld by the court of appeals of Maryland on the ground that the offer did not tend to show the defendant insane at the time of the homicide within the legal definition of that term. ¡No fault can be found with such ruling.

In this case it cannot be asserted that the evidence of insanity given up to the time when the defendant’s wife was called was very strong or very convincing. There can be no doubt that it came up to the requirements of the rule which has been assumed as a condition for the admission of evidence of the nature offered herein. The counsel for the prosecution does indeed take the objection that when this proof was offered there was no evidence that the defendant was insane when the crime was committed and none that tended to prove it. I have already alluded to some of the evidence upon that question which had then been taken, and after the court ruled upon this offer Doctor Martine was again ■called to the stand, and upon a hypothetical question put to him by defendant’s counsel testified that in his judgment the defendant was insane 'at the time of the commission of the homicide.

The defendant’s wife was then recalled and the same offer to prove the facts already related was made and the same ruling given and an exception taken. I think it cannot be said that the hypothetical question put by defendant’s counsel to the physician was so utterly baseless that it could find no support in any possible view of the evidence in the case, assuming such evidence to be true. The court did not exclude evidence of the communication on any such ground, but placed its. ruling on the ground that the evidence was in its very nature wholly inadmissible for the reasons which he then gave. In stating that one reason for the rejection of the evidence was because it appeared that whoever committed the murder did it with great deliberation, the court thereby in substance held that evidence of this nature was only admissible to prove a sudden passion, perhaps a frenzy on the part of the person hearing the communication, and the immediate commission ■of the crime in that present condition of rage, and hence evidence of deliberation destroyed the foundation for its admission. But herein the court totally misapprehended the principle upon which the evidence was admissible.

Upon that principle, which I have already so fully discussed, deliberation is not in the least inconsistent with the legal insanity of the' person deliberating, and hence the fact of deliberation offers no obstacle to -the reception of the' evidence. An insane man frequently deliberates, and after- the most mature deliberation commits acts which but for his insanity would be crimes. The question always is, not did the party deliberate, but was heat the time insane within our legal definition of that term?

The counsel for the prosecution also argues that the defendant did, as matter of fact, have the benefit of evidence ruled out, as in the hypothetical questions afterwards submitted to the physicians called by the defendant the fact was assumed that the defendant had received some communication from his wife of a nature to cause a great moral shock to him, and that the physicians had declared that such fact had a most important bearing upon the question.

It is true that the counsel for the defendant did include this matter in one of the hypothetical questions put to the physicians, ' but the question was objected to by counsel for the People as assuming proof not in the case, and though overruled by the court, yet in permitting the* question to be put the court said, in addressing counsel for the prosecution, “ You are entirely right in the fact that there is no such proof in the case before the court. * * * I agree with you that there is no evidence to sustain the information upon which the question is founded.” The court allowed the question on the ground that the rule permitted counsel to make any hypothesis he pleased, whether supported by evidence or not.

In the charge of the learned judge he said to the jury that there was no evidence “before the-court as to what communications, if any, that is, of what nature and character of communications passed between the defendant and his wife preceding the killing, and if there were such evidence, that would not in any event constitute a justification.” In this light the amount of benefit which, the defendant derived from the fact in question is, of course, absolutely without weight.

But, again, it is said that the defendant suffered no harm by this ruling, even if erroneous, because the only insanity which the evidence in the case tended in the slightest degree to establish was, as counsel claimed, of that kind called by some moral insanity, where the person is said to be able to distinguish between right and wrong and to know that the act which he is about to commit is a crime, but he is impelled to do it by an overpowering impulse which masters his will and leaves him helpless. Such a species of insanity constitutes no defense for the commission of crime. See Flanagan v. People, 52 N. Y., 467.

If the claim of counsel were founded upon undisputed evidence and upon all proper inferences therefrom which could possibly be drawn, and if they all tended only in the direction of proving that kind of insanity, this court might accede to the statement and ignore the error. But this is by no means the case. The physicians themselves who were called for defendant think that upon the hypothesis of the defendant, as contained in the questions presented to them, he was so far insane as not to know the nature and character of the act or that it was wrong. It is true that in cross-examination as to the point of insane impulse, etc., as presented by counsel for the prosecution, some of them said they thought a person thus actuated knew the character of the act and that it was wrong. And they somewhat tended to the opinion that of the different kinds of insanity spoken of by some authors, the evidence rather, pointed to homicidal impulse on the part of the defendant But they all said it was exceedingly difficult to determine the exact character of the disease in many cases, and that the fullest kind of knowledge of all the surrounding facts of any particular case was sometimes necessary before they could form an intelligent opinion of the exact nature of the insanity afflicting the person and the amount of his knowledge of right and wrong. It is to be also observed that the general conclusion of the medical witnesses for the defendant, summed up after various cross-examinations, was that the defendant, upon the facts assumed by his counsel in his question, was so far insane as not to be conscious of the difference between right and wrong or that the act he committed was wrong. In this condition of the evidence it is clear that there is not such certainty of the character of the insanity of defendant, assuming the existence of any, that the court is enabled to say as matter of law it was of that kind which furnishes no defense.

That must be a question submitted to the jury under proper instructions as to what constitutes insanity within the meaning of the law. In this case, I do not think we should strive to see if we cannot guess that the error of the court affected no substantial right of the defendant. However strong the evidence tending to show his guilt may have been, he was entitled to a fair trial, and in view of the facts appearing on the face of this record, we greatly fear that he has not had it.

The learned judge, in his zeal for the due administration of justice and for the punishment of crime, stepped wholly outside of his province in stigmatizing, in the language used by him, the character of the witness by whom the counsel for the defendant offered to prove the facts above alluded to. Hnder the circumstances, it was very much in the nature of a charge to the jury, .■and it was duly excepted to. It was unfair to'the witness, because, from the offer made by defendant’s counsel, it appeared that she was not a consenting party, but that she had been overpowered, and in that condition a revolting crime had been perpetrated upon her. The statement that she ought not to be believed if she gave such evidence, and the assumption" by the •court that she instigated defendant in the commission of crime, were most damaging to the witness in regard to the testimony which she did give in the case, for the offer presupposed the willingness of the witness to testify to the very facts which the court •said ought not to be credited, even if sworn to by her. There-was no legal ground for the rejection of her testimony, and its •credibility was altogether a question for the jury. Some of her evidence was of quite important a nature, especially that which described the effect this communication had upon the defendant She testified that he was from that time sleepless, restless, walking the floor nights, refusing his usual amount of food, and that his habits changed in regard to the care and attention which he had theretofore paid to his stock and his work, neglecting both and brooding over his troubles.

All this was quite material evidence, and as it was substantially contradicted by the sons of the deceased who boarded with the defendant during this time, the question became a most material one as to the credibility of the wife. It was therefore most unfair and improper to thus characterize the witness and her proposed testimony, and it plainly prejudiced the defendant in his defense. The court committed an error in rejecting the evidence in the first place, and in subsequently making the remarks which he did in ruling upon the offers of counsel. The record shows nothing in the conduct of the latter calling for the least unfavorable comment by the court. It must be borne in mind that this court does not assume to say the evidence on the part of the defendant should all be believed or that if believed it did as matter of fact show the defendant so far insane as to be irresponsible for the act he committed. That is the very question for the jury to decide. The evidence on the part of the People must be taken into consideration on this question, and that evidence as qualifying and explaining the evidence of defendant we are bound to say was of great force, gathered from many different sources and altogether making a most formidable answer to the case on the part of the defense. We only say there was some evidence on his part which rendered it proper to admit this other evidence in question, and the whole should have been submitted to the jury under such proper instructions as would save the rights both of the defendant and the prosecution The denial of that right was error," and the manner and terms of its denial were anything but proper or appropriate.

We think other errors were committed upon the trial.

One was in regard to the right of the defendant to object to the wife giving any evidence of confidential communications from the defendant, her husband, to her. The court held that it was not the right of the defendant to take "the objection, but that it was the personal privilege of the wife, and she was put to her election whether she would answer or not, and she thereupon declined to answer. To this ruling the defendant objected and duly excepted. I think the decision, while as a result keeping out the alleged confidential communications, yet did so by improperly extracting a quasi admission from the wife that the communication was of a nature to hurt the defense.

If the defendant had the right to object, and to thus relieve the witness from any such partial admission, I think the exception was good, and not merely of a technical nature. Perhaps the ■judgment would not be reversed for that error, because it would seem that the communications had already substantially been proved. But I believe the ruling was in its nature erroneous. The common law rule that husband and wife cannot be witnesses for or against each other has been modified by the Penal Code,. § 715. That section makes a husband or wife of a person indicted or accused of crime in all cases a competent witness, but “neither a husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage. ” We are of the opinion that this section does not leave the matter entirely to the discretion of the witness, but that the other party interested may object to any such communication, and that upon such objection being made, the witness not only cannot be compelled, but that he or she has no right to make the disclosure.

We think evidence as to the conduct or appearance of the wife-of the defendant subsequent to the killing was also inadmissible. The wife was not on trial and was accused of no crime, yet several witnesses were permitted to give evidence as to her appearance at various times after the killing, seemingly for the purpose of showing that she did not exhibit the proper feeling of sorrow upon such an occasion. ' Whether she did or not was no subject for investigation on this trial, and was an improper means of attempting to impeach her evidence. It is also plain that if Dr. Martine was able, from a physical examination of the defendant subsequent to the killing, to determine satisfactorily in his own mind the condition of the brain of the defendant, and could also state from such examination that there was a disease, and of such long standing affecting it that it must have existed when the killing was perpetrated, the defendant is entitled to the evidence. I have some doubt whether the doctor came up to that point in his evidence, although counsel for defendant assumes he did in his argument. We are far from clear that he did, and we should not reverse on the ruling excluding the offer to show it by the doctor.

Upon the whole case, we are without doubt as to the propriety and necessity of reversing this judgment. If the defendant be guilty, it can be shown on another trial conducted more in accordance with the rules of law than was the one under consideration.

For the reasons already given the judgment must be reversed and a new trial granted.

All concur, except Finch and Gray, JJ., absent.


source: Caselaw Access Project

author: Brady, J. Daniels, J.

license: Public Domain

text:
    William D. Shipman et al., Resp’ts, v. The Bank of the State of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Banks — Payment of checks with forged endorsements—Account STATED.
    A clerk of the plaintiffs, who was in charge of their loan department, by fraudulent representations induced them to give him checks drawn on the defendant hank, payable to names given by him, and which proved to be mostly fictitious, and then forged endorsements on such checks and procured payment thereof from defendant, either directly over its counter or through another bank. These transactions covered four years, during which plaintiffs’ bank-book was written up thirteen times, some of these . forged checks being returned each time, and was examined by their cashier. Held, that plaintiffs were under no duty to defendant to examine the endorsements of the checks returned to discover forgeries, and were not chargeable with negligence in failing to do so or in reposing confidence in the clerk, that defendant was liable for the payments so made by it, and was not relieved by the fact that some of the payees of the checks were afterwards made good, by said clerk.
    Appeal from judgment in favor of plaintiffs, entered on the report of a referee.
    The following is the report of the referee:
    Hamilton Odell, Referee?—On April 7, 1884, the defendant, a banking corporation, was indebted to the plaintiffs in the sum of $14,499.08, upon a balance in their favor of moneys deposited by them with the defendant. Thereafter, and between that date and the 3d day of October, 1888, the plaintiffs deposited other moneys with the defendant^ amounting in the aggregate to the sum of $6,-213,586.71. They allege that of these sums the defendant has paid to them, or on their orders, only the sum of $6,030,040.29, and that the balance, to wit, $198,045.50, the defendant has refused to pay, although payment has been demanded. To recover this latter sum this action is brought. The defendant denies the alleged indebtedness, and avers payment of the entire sum in dispute on the written checks or orders of the plaintiffs. That such checks were drawn by the plaintiffs, and that they were paid by the defendant and charged against the plaintiffs’ account, are facts in the case; but the plaintiffs contend that such payments were wrongfully made, because not made to the parties in whose favor such checks were drawn, or to their transferees, but to persons having no title to the checks, and no right to demand or receive payment thereof, but who claimed title and demanded payment through or under forged endorsements of the several payees. The relation of banker and customer in respect of deposits is defined and settled by abundant authority, and is not a matter of contention in this case. “ When deposits are received, they belong to a bank as part of its general funds, and the bank becomes a debtor to the depositor, and agrees to discharge the indebtedness by paying the checks of the depositor, his creditor. The contract relation between the parties is purely legal, and has no element of trust in it.” JEtna Nat. Bank v. Fourth Nat. Bank, 46 1ST. Y., 86. “All deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter, and that other kind of deposit of money, peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money and loans it to the bank, and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand.” Marine Bank v. Fulton Bank, 2 Wall., 256; Phoenix Bank 'v. Risley, 111 H. S., 125. The proposition insisted upon by the learned counsel for the plaintiffs is therefore true. A bank, in honoring the check of a depositor, does not pay it out of moneys belonging to the depositor, but out of its own moneys. , It does not thereby restore to- the depositor a portion of funds which it holds for him, or as his trustee, but it pays pro tanto its indebtedness to him arising out of his “ loan * of his “ deposits” to the bank. When the Corn Exchange Bank paid Kunhardt & Co.’s check to a party claiming through a forged endorsement, it did not use Kunhardt & Co.’s money for that purpose. “ Their money (the court said) was still on deposit with the plaintiff, and the plaintiff owed them for it.” Corn Exchange Bank v. Nassau Bank, 91 N. Y., 80: Bank of British v North America v. Merchants' Bank, 91 id., 111. It is also true that a bank’s indebtedness to its depositor can be discharged only by payment either to him or to the person or persons to whom he directs it to be paid. Care and diligence on the part of the bank in determining whether the party who demands the payment is entitled to receive it are of no importance as respects the depositor. Its liability to him is absolute. It makes every payment at its own risk, and it can' charge him with only such payments as it makes to him, or in accordance with his directions. In “ debiting his account, it is not entitled to charge any payments except those made at the time when, to the person whom, and for the amount, authorized by him. It receives the depositor’s funds upon the-implied condition of disbursing them according to his order, and upon an accounting is liable for all such sums deposited as it has. paid away without receiving valid direction therefor.” Crawford v. West Side Bk, 100 N. Y., 53. The signature of its customer the-bank is bound to know, and it must bear the loss if it pays a check with a forged signature, no matter how well it may be simulated. Weisser v. Denison, 10 N. Y., 68; Frank v. Chem. Nat. Bank, 84 id., 214. And when a genuine check is made payable to a person named therein, or to his order, the duty of the bank is equally imperative. While not chargeable with knowledge of the payee’s signature, it must “ see to it, at its peril, that it pays according to the terms of the order, and to the party named therein, or to one holding it under the genuine endorsement of such payee.” Dodge v. Nail Exch. Bank, 30 Ohio St., 1; Welsh v. German Am. Bank, 73 N. Y, 426; Corn Exchange Bank v. Nassau Bank, 91 id., 80. These well settled propositions are not denied by the learned counsel for the defendant, but it is contended that the payment by the defendant of the checks in dispute has been adopted and ratified by the plaintiffs; that various accounts were stated and settled between the parties while the frauds in question were being perpetrated by Bedell; that in those accounts these checks were charged against the plaintiffs, and that the checks themselves were returned to the plaintiffs as vouchers for such charges; that the balance shown by each settlement to be due from defendant to the plaintiffs was accepted by the latter as correct, and the said vouchers were retained by them, either without examination, or with such partial and negligent examination that said frauds were not discovered, as they might easily have been had the plaintiffs exercised reasonable and proper care; and, therefore, it is insisted, with great vigor, that the plaintiffs are estopped to question or dispute the validity of such payments by the bank. The same claim was urged in Weisser v. Denison, 10' N. Y., 68, which was an action brought by a depositor against the North River Bank to recover the amount of •certain checks to which the depositor’s name had been forged by his confidential clerk, and which the bank had paid. Judge ■Johnston says that ‘‘the defendant insisted at the trial that Weisser, by neglecting to examine the checks and bank account upon the return of the bank-book, written up and balanced by the bank, had adopted the checks as his own, and that by reason of his negligence in that respect the plaintiff could not recover from the bank the amount of the forged checks.” It was held that the writing up of the bank-book, debiting in it the forged checks, .and returning the book to Weisser with the vouchers, was the statement of an account by the bank, by which Weisser became bound as by an account stated; he having retained the account without objection after a reasonable time for its examination had elapsed. “ This (the court said) is undoubtedly the result of his omission personally to examine his account, and take seasonable objections to improper items. Still, inasmuch as the defendant has not, by the silence of Weisser, been induced to take any action or lost any rights, the only effect of this is to cast the burden of proof upon Weisser and his representatives to show fraud, error, or mistake in the account. It is not conclusive, but merely prima facie evidence of the dealings between the parties.” And in August v. Fourth Nat'lBlc., 15 N. Y. State Rep., 956, the court said: “ When he, the dealer failed to examine it, the whole consequence was that the burden of proof was shifted, aud he,became bound to show that the account was wrongly stated.” In compliance with this rule, the plaintiffs in the present case made proof that the endorsements of twenty-seven checks, drawn to order by the plaintiffs, and aggregating the amount in controversy in this action, had been forged by Bedell. Upon such forged endorsements the checks were paid by the defendant. The proofs show these further facts: Bedell’s frauds covered a period of about four years. During that period, and prior to the discovery of his crimes, the plaintiff’s pass-book with the defendant was written up thirteen times, and on each occasion, with one or two exceptions, one or more of the checks with false endorsements were returned by the bank to the plaintiffs along with a great number of other vouchers. Seventeen of these checks bore also the personal endorsement of Bedell, and passed into his private accounts with the Union, Phenix, and Continental Banks. The remaining ten were delivered by Bedell to one James S. Henry, and were endorsed by him, and deposited to his credit in the Broadway Bank. Three of the checks for small amounts were paid to Bedell by the defendant over the bank counter. The others reached the defendant in common course of business, through the settlements of the clearing-house. When the pass-book was written up and delivered with the vouchers to the plaintiffs, it went into the hands of Dodge, the plaintiffs’ cashier, for examination. It is now claimed that the plaintiffs are responsible for and concluded by the negligence of Dodge, and that Dodge’s negligence consisted in not observing that either Bedell or his friend Henry was the last endorser on these checks, which fact was notice that he (the last endorser) had received the proceeds. Ordinary care, it is said, would have discovered this fact. Had it been noticed, it would have provoked inquiry. H inquiry had been made, the frauds would have been revealed, and Bedell would have been checked on the threshold of his criminal career, and this enormous loss would have been prevented. This claim raises the question by which the plaintiffs’ negligence must be determined. Is it the legal duty of a depositor, upon the return to him by a bank of his canceled checks, to make an examination of the endorsements which they bear ? If it is, and he omits it, he must bear the consequence which results from his omission, and the negligence of the servant to whom he confides the duty is imputable to him.
    In Weisser v. Denison, cited above, the checks themselves were false, the name of Weisser, the apparent drawer, being forged. The court said that: “ Whatever loss the bank has sustained it has suffered from its own negligence or want of skill in a matter as to which, in the first instance, it, and it only, was bound to exercise skill and diligence. To this loss no act'of Weisser has contributed. He was guilty of no bad faith. He has violated no with diligence his returned checks and bank-book.” The point there decided was stated with approval by Andrews, J., in Welsh v. German Am. Bank, 73 N. Y, 428, to be as follows: “In respect to the question of negligence, it was held that a depositor owes no duty to a bank which requires him to examine his passbook or vouchers with a view to a detection of forgeries of his name.” The same question arose in Frank v. Ghem. Nat. Bank, 84 N. Y., 209, which was also a case of forgery of the drawers^ signatures. A recovery by the plaintiff was sustained on the authority of Weisser v. Denison. But the court said : “ It does not seem to be unreasonable, in view of the course of business, and the custom of banks to surrender its vouchers on the periodical writing up of the accounts of depositors, to exact from the latter some attention to the account when it is made up, or to hold that the negligent omission of all examination may, when injury has resulted to the bank, which it would not have suffered if such examination had been made, and the bank had received timely notice of objections, preclude the depositor from after-wards questioning its correctness. But where forged checks have been paid, and charged in the account, and returned to the depositor, he is under no duty to the bank so to conduct the examination that it will necessarily lead to the discovery of the fraud. * * * So, if the depositor, in the ordinary course of business, commits the examination of the bank account and vouchers to-clerks and agents, and they fail to discover checks which are forged, the duty of the depositor to the bank is discharged, although the principal, if he had made the examination personally, "would have detected them. The alleged duty, at most, only requires the depositor to use ordinary care; and if this is exercised, whether by himself or his agents, the bank cannot justly complain, although the forgeries are not discovered until it is too late to retrieve its position, or make reclamation from the forger.” And the duty may be discharged although the depositor, upon a personal examination of the returned checks, fails to discover a forgery of his own signature. Judge Andrews says: “ If he examines the vouchers personally, and is himself deceived by the skillful character of the forgery, his omission to discover it will not shift upon him the loss which, in the first instance, is the loss of the bank. * * * If the bank pays forged checks, it commits the first fault. It cannot visit the consequences upon the innocent depositor, who, after the fact, is also deceived by the simulated paper.” .
    This case dealt with the question of duty, and so with the question of negligence, of a depositor in respect of checks which purported to be his, but which, in fact, were forgeries. The law presumes that a man knows his own signature. This knowledge may enable him to discover a false check which has passed the scrutiny of the bank and escaped detection. Every voucher returned to him is a separate notice by the bank that it has honored his draft, and reduced its indebtedness to him by that amount. He has a record of all checks drawn by him, by reference to which he can easily determine whether the vouchers returned to him are genuine. There is a reason, therefore, why he should give “ some attention ” to an account rendered by the bank. Common fairness seems to require that he should be reasonably diligent in informing the bank of any fraudulent use of his name by which the bank has been deceived, so that it may take such measures as are available to retrieve its loss. But there is no presumption of law that a depositor knows the signature of his payee. Leather Man. Bh. v. Morgan, 117 U. S., 107. The payee’s endorsement is a transaction in which he has no interest. It concerns the bank alone, and the bank must bear the whole risk of determining whether the endorsement is genuine. The case of Welsh v. German American Bank, 73 H. Y, 424, strongly resembles the case in hand. The plaintiff was a commission merchant Swindels was his bookkeeper. Johnson was a merchant in the interior, from whom the plaintiff received consignments of produce for sale upon commission. From time to time, during a period of two years, Swindels presented to the plaintiff fictitious accounts of sales of Johnson’s property, on which he procured the plaintiff’s checks to Johnson’s order for the amounts shown to be due by said accounts. Then •Swindels forged the endorsement of Johnson, and put the checks in circulation. They were paid by the bank, and charged against the plaintiff, and returned to him as vouchers with his pass-book, which was written up and balanced monthly. It was Swindel’s duty to examine the bank account. The plaintiff made no examination of it during the period covered by the checks. At the trial a verdict was directed for the plaintiff; the court refusing to allow the defendant to go to the jury upon the question of the plaintiff’s negligence, or the question whether there was an ac•count stated binding upon him. The ruling was affirmed by the court of appeals, Andrews, J., saying: “The checks were received by the bank through the clearing-house, and when presented to be paid by the defendant they purported to be endorsed by the payee, but the endorsements were forgeries. The bank, before paying the checks, was bound to ascertain the genuineness of the payee’s endorsement. * * * In this case the examination by the plaintiff of the pass-book and vouchers alone would not have disclosed the fraud. The debits in the bank-book, and the checks to Johnson corresponding with them, he would expect to find. If he had gone further, and compared the checks with Johnson’s account on his books, the fraud would have been detected, and probably by this means only. If his own name had been forged, as in Weisser v. Denison, or if items were debited in his pass-book which he had no reason to expect to find there, an examination of the book and vouchers would be much more likely than in this case to lead to a discovery. The plaintiff had a right to assume that the bank, before paying the checks, would ascertain the genuineness of the endorsements.”
    Upon what principle can a bank be permitted to allege negligence against a depositor for failing to examine an endorsement which the bank has already, by paying the check, certified to be the true endorsement of the payee? Why should a depositor be charged with negligence for omitting to examine the endorsement of a payee whose signature he is neither bound nor presumed to know? I have no hesitation in finding that there is no duty resting upon him to make such an examination. But the learned counsel for the defendant insists that, if the plaintiffs had examined the backs of these checks, they would have discovered the endorsements of Bedell and Henry, and so been notified that they (Bedell and Henry) were receiving the proceeds of the checks from the defendant That may be so. By so doing, the plaintiffs might have acquired the same knowledge that was possessed by the defendant. But was it a duty which they owed to the defendant ,to inquire whether any other parties, or what other parties, had endorsed the checks ? Negligence, however gross, is but an omission of duty, Tonawanda B. B. Co. v. Munger, 5 Denio, 267, and if there is no duty there can be no negligence. To hold, as the learned counsel claims, that the plaintiffs are to be charged with knowledge of whatever they might have known if they had inspected all that was written upon the backs of these twenty-seven checks, would be, it seems to me, to exact from them a degree of diligence, and impose upon them a responsibility, not demanded or permitted by the authorities which have been cited. The plain doctrine of those authorities is that, a bank, whose duty it is to carefully scrutinize a check or draft before it pays it, and to pay it only to the person to whose order it is drawn, or upon the true endorsement of such person, and to take notice of anything which the paper discloses which suggests a doubt as to the title of the party demanding payment, or a suspicion as to the entire regularity of the transaction, shouM not be permitted to escape from the consequences of its inattention and neglect, and cast them upon the drawer, where no act of the drawer has misled the bank, or induced it to relax its vigilance. The case of Yagliano v. Bk. of England (more fully referred to hereinafter) is directly in point Upon the question of the plaintiff’s alleged negligence, Charles, J., said: “ The most important argument presented by the attorney general in support of the view that the plaintiff had been guilty of negligence in or immediately connected with (the transactions) was that which he based on an alleged duty on the part of some one in Yagliano’s office to scrutinize the paid bills as they were returned from time to time to'the plaintiff. But, in the absence of anything to direct special attention to them, it was not proved that it was any part of the duty of the clerk who checked them with his cash-book to examine the endorsements on the back of the bill at all. It was immaterial, so far as his purpose was concerned, to whom the money was paid, or whether it was paid over the counter or not, or whether it had gone through the hands of one or of a dozen endorsers. * * * If they had been examined, it would have been discovered, not only that the bills bore no banker’s stamp, and therefore had been paid across the counter, but also that the endorsements were not genuine; for it was proved that when the bills were accepted by the plaintiff there was nothing on the back of them; but when they were returned they bore endorsements earlier in date than the date when the bills were accepted. * * * The gross irregularity of these endorsements must, if they had been looked at, instantly have arrested attention, and have led to Glyka’s detection.” But the defense of negligence was overruled. “ I cannot hold (said the learned judge) it was a negligent act on the part of the plaintiff not to examine, or cause to be examined, these endorsements.”
    It is an uncontested fact that many of these checks were made payable to persons who had no existence; the names of the payees having been invented or fabricated by Bedell. The defendant insists that under the statute, and also at common law irrespective of the statute, these checks were, in legal effect, payable to bearer, and that the bank was authorized to pay them without any endorsement, or with an endorsement that was forged. The exact propositions submitted by the learned counsel are as follows: “ First. As to the checks which were in fact payable to fictitious payees, the plaintiffs, having, by their own voluntary acts, without inquiry as to the existence or non-existence of any such persons as are named as payees therein, made them payable to fictitious and non-existing persons, are es-topped to question the endorsements. Second. Under the statute, the several checks made payable to names of persons, and not to persons having any existence, were, in legal effect, payable to bearer.” The early English cases cited by the learned counsel all relate to paper made or accepted with knowledge that the payees named were non-existent. Tatlock v. Harris, 3 Term R, 174; Vere v. Lewis, id, 182 ; Minet v.- Gibson, id., 481, affirmed in house of lords, 1 H. BL, 569; Gollis v. Emett, 1 id, 313. The doctrine which they establish is stated by Lord Loughborough in Collis v. Emett in these words: “A bill of exchange is an authority to pay pursuant to the order of the payee, and it is also an undertaking to pay pursuant to that order; but if there be no person who, by any possibility, can give such an order, the engagement must be to pay the bill. If the ■order of the person cannot be procured, and, with the knowledge and privity of the parties who made the bill, such a name is put .in as cannot give an order, it is in effect, and in point of law, the .same thing as if they had made it payable to the person who held the bill, namely, the bearer. ” The rule is stated by Chitty as follows: “A bill payable to a fictitious person or his order is, in effect, a bill payable to bearer, and may be declared on as such in favor of a bona fide holder, ignorant of the fact, against all the parties knowing that the payee was a -fictitious person.” Chit. Bills, 178. And by Byles: “ If the acceptor, at the time of acceptance, knew the payee to be a fictitious person, he shall not take advantage of his own fraud; but a bona fide holder may recover against him on the bill, and declare on it as payable to bearer.” Byles’ Bills, 61, marg. Judge Bronson criticized and -dissented from the rule in Coggill v. American Exchange Bank, 1 H. Y., 113. He saw no reason why the liability of an acceptor of such a bill, which had been put into circulation by the drawer, should be made to depend upon the acceptor’s knowledge that the payee was a fictitious person. “It is enough,” he said, “that the holder has a good title to the bill, so that the acceptor, on paying it, ■ can properly charge the amount against the funds of the drawer in his hands, if there be any, and, if there be none, that he may have an action against the drawer for money paid to his use.” In the Yagliano case, above mentioned, it was held on appeal, 23 Q. B. Div., 243, that “ fictitious ” meant “fictitious to the 'knowledge of the party sought to be charged upon a bill; ” and it was said by Lord Justice Bowen : “ If the drawer is the person against whom the bill is to be treated as a bill payable to bearer, the term ‘ fictitious ’ may be satisfied if it is fictitious as regards himself, or, in other words, fictitious to his knowledge.”
    The question has been recently discussed and decided by the supreme court of Ohio in Armstrong v. Nat'l Bk., 46 Ohio St., 512. "The plaintiff delivered her check, drawn on defendant, in exchange for a note which purported to have been made by William Brown, ■ to whose order the check was payable. There was no such per- ■ son. The whole transaction was a fraud on the plaintiff, perpetrated by one Grimes, who represented himself as acting for Brown, and who endorsed the check in Brown’s name, and obtained the money from the defendant. It was held that the bank must bear the loss. The court said: “ The fact that the check was made payable to a person that had no existence does not alter the rights of the plaintiff as against the bank, for she supposed that Brown was a real person, and intended that payment should be made to such person. The doctrine that treats a check or bill made payable to a fictitious person as one payable to bearer^ and so negotiable without endorsement, applies only where it is so drawn with the knowledge of the parties.” In other words, whether the payee of a check, who is non-existent in fact, is fictitious in judgment of law, must depend upon the intent of the drawer when he utters the check. If he believes himself to be dealing with a living person, to whom he has incurred or expects to incur a liability, or from whom he has received or expects to receive a consideration, and issues his check to the order of such person, and for delivery to him in discharge of such liability, or in settlement or exchange for such consideration, the payee is not fictitious; and the check is not payable to bearer.
    In Turnbull v. Bowyer, 40 iH. Y, 456, the check was made payable to the order of Kierhmon & Holmes, which names were erroneously written for Richmond & Holman. The endorsement of the payees was forged by one Miaglia, to whom the check was delivered by the drawers. Upon the trial of the action (which was against the subsequent endorser, and upon his implied warranty of the genuineness of the payees’ endorsement), evidence was admitted to show that Ball, Black & Co., the drawers of the check, intended to make the. same payable to Richmond & Holman,' and directed their clerk to so fill it out. The court held that such evidence was properly received, and said: “ The evidence had no materiality, so far as it went to explain the discrepancy in the spelling of these names, but it was material to show that it was not intended to make it payable to Miaglia, or to fictitious persons, so that Miaglia could use it without the endorsement of the payees. * * * That this evidence was competent is perfectly apparent, I think, to the appellant’s counsel, for it furnishes a perfect answer to his fourth point made upon this appeal, which is that this check was payable to fictitious persons, and Miaglia could transfer it so as to give a good' title without any endorsement.”
    The statute has not changed the rule of the common law, except to extend it so as to embrace paper payable to the order of the maker, and put' in circulation by him without endorsement. Piets y. Johnson, 3 Hill, 115. It declares as follows: “ Such notes, made payable to the order of the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to bearer.” But when is a note “ negotiated? ” In Oent’l Ble. v. Lang, 1 Bosw., 206, the court said: “Weconsider that a note is negotiated within the statute when it is delivered out by the maker for a consideration received or agreed to be received, or delivered for circulation, and when, had it been actually endorsed, it would have possessed the character of negotiability.” In that case the note was drawn to the makers’ order, and delivered by them, unendorsed, to a marine insurance company as a premium note upon an open policy. This, it was held, was a “ negotiation ” within the meaning of the statute. “A bill is properly said to be negotiated when it has passed into the hands of the payee or endorsee or other holder for value, who thereby acquires a title thereto.” Baring v. Lyman, 1 Story, 416. It was said in Wheaton v. Hibbard, 20 Johns., 290, that a note “ has no legal inception until it is delivered to some person as evidence of a subsisting debt” In Kinne v. Ford, 52 Barb., 197, one question raised was whether a check had been delivered. “ Delivery (the court said) was the transfer of the possession of the check in question, with the intent to transfer the title by the plaintiffs to the agent of the defendants, and the acceptance by such agent of the check for his employer, with the intent to receive such title. It is a thing in which both parties must join. The minds of both parties must concur.” And in Wilcox v. Conoin, 117 N. Y, 503; 27 N. Y. State Rep., 836, it was held that a promissory note while in the hands, of the maker had no existence or value as such, nor was it available to any one. “ It was not good to the maker, for it was his own promise; it was not good to the payee, for it was undelivered ; and to make it good in the hands of any other person required both endorsement by the payee and delivery. * * * When delivered to the payee, the promise became effective; and it then, and not before, became a chose in action, valid and effective.”
    The facts attending the drawing of these checks are not in dispute. Bedell was the plaintiffs’ clerk, having charge of the real •estate department of their business, and enjoying their unbounded ■confidence. He examined the titles to real estate upon which moneys were loaned by the plaintiffs’ clients. Bach examination, -or pretended examination, was reported by him to one of the plaintiffs’ firm; his statement showing (among other things) existing liens and incumbrances (if any), the amounts required to remove them, and the names of the several parties in whose favor checks were to be drawn to complete the loan. The defendant’s counsel, with great fairness, states as follows: “ The checks in question* were all delivered by plaintiffs through Dodge (the cashier of the plaintiffs) to Bedell and were, except as to a few of them which were sup■posed to be for the purpose of paying off liens, so delivered to Bedell, to be by him paid out against the securities to be received for plaintiffs on behálf of their clients, the mortgagees. These ¡securities consisted chiefly of mortgages bn real estate to secure bonds of the mortgagors. The checks were drawn by the" plaintiffs in every instance to be deliverable only against the mort-gages, and were made and issued to Bedell for that purpose.” As matter of fact (in respect of these particular checks), no loans were made; there were no borrowers ; no titles were examined; the bonds and mortgages representing the pretended loans were forgeries; the alleged mortgagees were not in being; every transaction was a pure fraud and felony; and Bedell, having by these means obtained the plaintiffs’ checks, forged the endorsements of the several payees, and appropriated the proceeds to his own use. , Judged by the authorities which have been cited, these payees were not fictitious, and the checks were not payable to bearer. They were made in the usual course of business, and to the order of payees whom the plaintiffs believed to be existing persons, and from whom they expected to receive in exchange the payees’ personal obligations, with security. It was to such persons only, or to their order, that the plaintiffs directed the defendant to pay the checks for their account. Nor were these checks “negotiated” by the plaintiffs. The plaintiffs did not deliver them nor put them into circulation. The claim that they negotiated them ■through Bedell, who was their agent, and by whose acts they are bound, seems to me to be without foundation. A bona fide holder of commercial paper may enforce it against the maker, although such paper was fraudulently or feloniously put into circulation, without the maker’s knowledge, and in defiance of his express instructions, Fry v. Bennett, 4 Duer, 260, but the act of “negotiation” which subjects the paper to the operation of the statute, and determines its character as paper payable to the bearer, must be the act of the maker, either done or authorized by him.
    Another objection is urged against the plaintiffs’ right to recover in this action, which does not seem to require any considerable attention. It is insisted that the plaintiffs are estopped by their own negligence, which consisted in placing too great confidence in Bedell, and in clothing him, for certain purposes, with all the power of the firm, and in not examining the bonds and mortgages for which they drew and delivered to Bedell these checks, or their register of titles, the entries in which would, if inspected, have disclosed the frauds. Like objections seem to have been raised in several of the cases to which reference has been made. Sedgwick, J., said of the defense of plaintiff’s negligence in Welsh v. Ger. Am. BJc., 42 1ST. Y. Super. Ct, 469: “ The considerations pertinent to this defense relate to the fact that when the clerk presented the checks for signature, as being drawn for amounts due, the plaintiff believed the clerk, and did not look at the original entries to learn what the facts were; that is, he trusted his clerk. That trust was not negligence. Of course, handing the checks, after they were signed, to the clerk was not negligence, nor did that give the clerk any credit with the defendant” In affirming that case, Judge Andrews said as follows: “He (the plaintiff) was deceived into giving the checks by the fraud of Swindels; but this act did not affect the action of the bank, nor, in a legal sense, did it contribute to the fraud perpetrated upon the defendant. The frauds committed upon the plaintiff and upon the bank were independent and unconnected frauds;.and the fact that the plaintiff intrusted the checks to his clerk to send to Johnson, who forged the endorsements, made him no more responsible than if he had intrusted them to an expressman to carry to Johnson, and the expressman had forged the name of the payee, and passed them to the defendant. ” 73 R Y., 429. The same answer was made to the charge of Weisser’s negligence in 10 X. Y., 83: “ Whatever loss the bank has ■sustained it has suffered from its own negligence and want of skill in a matter as to which, in the first instance, it, and it only, ■was bound to exercise skill and diligence. To this loss no act of Weisser has contributed. He was guilty of no bad faith. He has violated no duty which he owed to the bank, and is in no way responsible.” And in FranJc v. Ghem. Nat. Bank, 84 R. Y., 214, the court said: “The bank, in paying the successive checks, did not act upon the fact that a previous forged check had passed the plaintiffs’ scrutiny unchallenged. In each case the bank paid the check presented because upon inspection it supposed it to be genuine. If the forged checks first returned had been immediately ascertained to be forgeries, it might, and probably would, have prevented the subsequent forgeries. Rut the failure to detect them was not the reason of the subsequent payments by the bank.” -The case of Vagliano v. Bank involved frauds to the extent of £71,500 committed by one Grlyka, a clerk in the plaintiff’s service. By fraudulent practices Grlyka procured the plaintiff’s acceptances of bills which he had forged, which purported to-have been drawn by a foreign correspondent of the, plaintiff’s and which were payable to the order of another foreign firm. He then forged the endorsements of the payees, and received payment of the bills in cash from the defendant. The forged bills were-forty-three in "number, and were paid at different dates, as they respectively fell due, between February 18th and October 12, 1887. One ground of the bank’s defense was negligence on the-part of Yagliano. The case was tried before Justice Charles without a jury, and the defense was disallowed. The judge said: “ It is alleged that the plaintiff has by his conduct disentitled himself from insisting on treating these payments as made without authority; that he has been guilty of such negligence as excuses the defendants, that is to say, of such negligence which is the proximate cause of the loss.” This the learned judge-denied, following Bank of Ireland v. JEvans' Charities, 5 H. L. Cas., 389, and Mayor, etc. v. Bank of England, 21 Q. B. Div., 160. “ Mere negligence, (he said) or a careless and slovenly mode of conducting business, would certainly not be enough. The negligence must be in, or immediately connected with, the transaction itself, -x- * *- It was urged that there was a total absence of effective supervision over Grlyka’s proceedings, and that this of itself constituted such negligence as precluded the plaintiff from recovering. And I agree with the attorney general that there-was a want of proper superintendence over the foreign correspondence in the plaintiff’s office. Glyka, a clerk at a very small, indeed, almost an «insignificant salary, having regard to the important duties intrusted to him, was left without a check of any kind for months together. * * * The want of supervision, however, though in my opinion it was careless, was not in itself the proximate cause of the loss, and, according to authorities to which I have referred, was not enough to disentitle the-plaintiff from complaining of the payment of the forged bill.” On appeal the decision was affirmed. 23 Q. B. Div., 243. “On the question of negligence (said Lord Justice Bowen) we agree with Charles, J. There was no evidence of negligence on the part of the plaintiff which directly caused the frauds in question in' this action so as to prevent the plaintiff from succeeding in his claim. There was, we think, negligence on his part in leaving so much to a clerk in Grlyka’s position without any effective supervision or control over his proceedings. But this was not the proximate cause of the loss which had been incurred, and therefore cannot be relied upon as a defense against the claim of the plaintiff, even if 'there was no negligence on the part of the bank.”' It is not necessary to pursue this objection further. It is fully met and refuted by the authorities mentioned, and others cited by the plaintiff’s counsel. People v. Bank of North America, 75 27. Y., 547; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass., 268 ; Swan v. Australasian Co., 2 Hurl. & 0., 175 ; Crawford v. Banlc, 100 27. Y., 55.
    The last defense set up in the defendant’s answer relates to the ten checks which were drawn payable to the order of real borrowers on bonds and mortgages. It is alleged that if these checks “ were not actually endorsed by the several payees named therein, the names of the said payees were respectively endorsed upon the said several checks by the said James E. Bedell and that the proceeds of the said checks were received by the said Bedell, and, to the extent to which the said proceeds were used by the said Bedell, the several sums used by him were afterwards made good by him to the several payees named in said checks, or were applied by him for the benefit of said several payees; so that, in respect of all and every one of said last-mentioned checks, * ** the said plaintiffs sustained no loss or damage by reason of any act of said James E. Bedell, or of the defendant, as to said checks, or any of them.” Therefore, the defendant says, for the amount of those checks, at least, there can be no recovery in this action. The apparent fairness and justice of this claim disappears when the relations'between these parties, plaintiffs and defendant, and the nature of this action, are considered. If this were an action to recover damages for the wrongful disbursement by defendant of the plaintiffs’ moneys, such a defense would be entitled to favorable treatment. But this is not such an action. The plaintiffs are seeking to recover an indebtedness due to them from the defendant, arising out of deposits of money made by plaintiffs with the defendant upon the defendant’s agreement to restore the same when called for. Against the indebtedness so created the plaintiffs drew certain checks, which defendant paid, but in disregard of the plaintiffs’ direction, and to parties having no right or title thereto. Such payments were not made on the plaintiffs’ .account, and did not reduce the defendant’s indebtedness to them. The question is, can the defendant be permitted to avoid its agreement with the plaintiffs, and its contract liability to them, by •showing that certain parties, who had claims against the plaintiffs for the moneys represented by these checks, and in whose favor the checks were drawn, have since been paid the amounts of their claims by another party, whereby the plaintiffs’ liability to them has been discharged ? I am unable to see how such a transaction at all affects the relation between the plaintiffs and the defendant, or how it operates as a payment of the defendant’s debt, even though the said claims were paid by the party who, by fraud and forgery, deceived the defendant into payment of the checks. My conclusion is that the plaintiffs are entitled to judgment for the full amount claimed in their complaint.

      Wm. Allen Butler, for app’lt; Élihu Root, for resp’ts.
   Brady, J.

The issue presented in this case was whether the defendant had paid the plaintiffs’ checks specified and exhibited herein, the endorsements upon which were forgeries, under circumstances which relieved it, notwithstanding the forgeries, from responsibility. The necessity for each check and its amount was declared by the plaintiffs’ clerk, who was connected with a bureau of their business, known as the real estate" department, organized for loans on bond and mortgage of the moneys of clients, and who was duly authorized thereto in the discharge of his duties as to the loans to be made on proper securities, subject, however, to the supervision and approval of one of the plaintiffs. Upon the trial it appeared that this employe had forged all the endorsements of the payees and appropriated the moneys received ; that some of the payees were fictitious, and that some of the moneys received were used to discharge obligations growing out of transactions in the department mentioned, but undoubtedly in furtherance of the felonious scheme conceived and carried out by the employe. The defendant insisted that it was not liable for any of the checks drawn to the order of fictitious persons, and claimed a deduction, at all events, for the amount of money used to pay obligations as suggested, from any sum for which it might be held liable. It also appeared- that the plaintiffs’ bank-book was frequently balanced and returned to them with the vouchers, and that these-vouchers embraced those upon which the endorsements had been falsely made, and the defendant contended, and from different points of view, including the asserted duty of the plaintiffs to examine the endorsements upon the vouchers, that the legal effect of this was to discharge it from all liability. The propositions springing from these various features were carefully and fully examined by the learned referee conducting the trial, who has presented his views in an able opinion, which, on principle and authority, sustains the correctness of his conclusions of law with regard to each, all of which were adverse to the defendant. The consideration given to them is so abundant and convincing that it would be a work of supererogation to repeat them, however different in terms, and the ceremony will not, therefore, be indulged.

The very earnest and comprehensive argument of the learned counsel for the appellant has not convinced us that the referee erred, while the learned counsel for the respondent has fortified the referee’s conclusions by additional citations and reasons. It, is not at all necessary to consider with particularity any of the-exceptions taken during the trial. It is sufficient to say of them generally that they do not demand or require any interference-with the judgment appealed from. Indeed, the whole controversy depends upon propositions springing from facts which are not in dispute and which were fully considered and disposed by the referee.

The judgment should for these reasons be affirmed, with costs.

Yah Bruht, P. J., concurs.

Daniels, J.

I concur in the result. The opinion of the referee fully meets and answers objections upon to resist the recovery. The plaintiffs’ rights were fairly maintained, and there should be an affirmance.


author: Per Curiam.

text:
    John Parker et al., v. Mark Lithgoe, Impl’d.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Depositions—Commission to take testimony.
    Where it appears that the rights of a party are not sufficiently protected by a commission with interrogatories, as he cannot anticipate the nature of the testimony to be brought out from witnesses to be examined thereunder, an open commission should be issued, if he so desires, with permission to either party to call witnesses in addition to those named in the commission.
    Appeal from order granting commission to take the testimony of Jane Smith and other witnesses residing in New Zealand.
    One of the heirs under a will, Jane Smith, was adjudged in an action to construe the will to be dead, but before judgment was entered she applied for leave to defend, which was granted, and upon her motion a commission was granted to take her testimony and that of witnesses on the question of identity. The affidavit showed that she was one of the parties to the action, was one of the devisees named in the will, and as such had an interest in the estate; and that it would be imprudent for her to make the journey from Auckland to New York, she being over eighty-three years of age.

      J. A. Skinner, for app’lt; B. Vanderhoven, for resp’t.
   Per Curiam.

We think the defendant should not be deprived of the opportunity to give such testimony as she may be able to procure for the purpose of establishing her rights which are sought to be cut off by this action.

It may be that in a commission with interrogatories the rights of the appellants are not sufficiently protected, as they cannot anticipate the nature of the testimony which will be brought out from the witnesses whom it is sought to examine upon the part of the defendant.

If, therefore, the appellants desire that an open commission should issue for the examination of the witnesses upon the part of the defendant instead of a commission upon interrogatories they should be granted the opportunity which an open commission affords them.

They should also be allowed to call such witnesses as they may produce before the commission and examine them without their being named in the commission; the respondent to have the priv- - ilege of calling witnesses in addition to those named in the commission in answer to the evidence adduced by the witnesses produced by the appellant. If the appellant desires that the order for the commission should be modified in this respect, the respondent must stipulate that an order may be entered in accordance with these suggestions or the order granting the commission will be reversed, with ten dollars costs and disbursements; and upon such stipulation being given, if the appellants so desire, the order will be modified in accordance with the views herein expressed and as modified affirmed, without costs to either party.

If, however, the appellants do not desire an open commission as suggested, the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.


author: O’Brien, J.

text:
    Adolphus Bridgman, Resp't, v. Ruth E. Scott, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    ^Discovery—Accounting.
    Plaintiff was employed by defendant under a contract which provided for payment of a stipulated salary and also a percentage of the net profits of the business. Held, that as an action for an accounting under such a contract was not maintainable, a discovery of defendant’s books to enable plaintiff to frame his complaint in such an action should not be ordered.
    Appeal from order directing an inspection and discovery of the defendant’s books so as to enable the plaintiff to frame his complaint.

      J. W. Weed, for app’lt; Abram Kling, for resp’t.
   O’Brien, J.

It appears from the petition that the plaintiff was in the employ of the defendant under a contract which provided for the payment of a salary of $3,000, and in addition thereto a further sum equivalent to twenty per cent of the net proceeds of the business for the year 1890 after first deducting therefrom the sum of $5,000. It also appears from the petition that by reason of such contract this action is brought for an accounting.

It being evident that an action upon this contract for an accounting cannot be maintained, the order for the inspection of the books was unauthorized, and should not have been made.

For these reasons the order should be reversed, with ten dollars costs and disbursements, and the motion denied!

Yan Brunt, P. J., and Daniels, J., concur.


author: Brady, J.

text:
    Josephine F. Clason et al., Ex’rs, Resp’ts, v. Elizabeth S. Baldwin, Ex’rx, App’lt.

      [Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Judgment—Irregularity.
    The report of the referee in this case contained findings of fact which established defendant’s liability as executrix, and a conclusion of law that plaintiffs were entitled to judgment against her, omitting her designation as executrix, but contained no direction as to the judgment to be entered. The judgment was entered against her in her representative character. Held, that the findings of fact did not sustain the conclusion of law, but that as the report contained no direction as to the judgment to be entered, the judgment entered was wholly unauthorized and irregular.
    Appeal from a judgment in favor of the plaintiffs entered on the report of a referee.

      Isaac JY. Miller, for app’lt; Thomas M. Wyatt, for resp’ts.
   Brady, J.

This action was brought against the defendant as the executrix of her husband, who was the assignee a lease demising the premises No. 42 Sheriff street in the city of New York. The facts found by the referee establish her liability prima facie and the second conclusion of law found by the referee is that the plaintiffs as executors are entitled to judgment against the defendant, omitting her designation as executrix. Section 1022 of the Code provides: “ That the decision of the court or report of the referee upon the trial of the whole issues must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon.” There was no such direction made by the learned referee and the judgment must have been entered by the clerk, who is not gifted with the authority in such a case to enter it according to his own views.

This case is an illustration of the absolute necessity of the direction referred to, inasmuch as the judgment entered is against the defendant, Mrs. Baldwin, as executrix, when the finding declares that the plaintiffs are entitled to a judgment against her individually. This case is somewhat similar to Putzel v. Shulhoff, reported in 8 E. Y. Supp., 651; 29 E. Y. State Rep., 26, in which the general term refused to review the judgment, and remanded it to the special term, having been tried in that branch of the court and not before a referee, to be decided as provided for. A somewhat similar disposition must be made of this case. The defendant appeals as executrix, thus assuming that the judgment was regular, but, nevertheless, takes the point on the appeal, through her counsel, that the judgment is not in accordance with the conclusion of law and wholly unauthorized, inasmuch as it ought to be against the estate which the defendant represents, when in fact the legal conclusion is against her individually, and there is no direction for entering the judgment, as required by the section of the Code already mentioned. The findings of fact do not authorize a judgment against her individually, but prima facie, assuming them to be correct, against her as executrix, to enter which, however, as already said, no direction is given. The judgment entered, therefore, was wholly unauthorized and is irregular.

The appeal must, therefore, be dismissed, and the case remitted for correction, but without prejudice to the right of the appellant to appeal from the judgment when it shall have been properly entered.

Van Brunt, P. J., and Daniels, J., concur.