author: Andrews, Ch. J.

text:
    Ebenezer Holmes, Resp’t, v. Gilbert E. Jones, as Treasurer of the New York Times, App’lt.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Libel—Right of recovery.
    The publication of a libel, in. the absence of legal excuse, gives a right of recovery irrespective of the intent of the defendant who published it, even though he had reason to believe the statement to be true, and was actuated by an honest, or even commendable, motive in making the publication.

      2. Same—Damages.
    The amount of damages in such ail action is peculiarly within the province of the jury; they may give nominal damages, or damages to a greater or less amount, as they shall determine; they may accord damages which are merely compensatory, or damages beyond mere compensation by way of example or punishment, when in their judgment the defendant was incited by actual malice or acted wantonly or recklessly in making the defamatory charge.
    3. Same—Proof of other charges.
    The rule that a defendant cannot show, in mitigation of damages for a specific libel, other and disconnected immoral ties, but can attack only the plaintiffs general character, does not apply where two charges in the alleged libelous publication relate to the same subject-matter and are not disconnected and independent, and the plaintiff submits only one of such charges to the jury, though the other charge is also averred in the complaint and justified in the answer; in such case, the defendant may, under certain circumstances, give evidence in substantiation of the latter charge, in mitigation of damages upon the charge submitted to the jury.
    Appeal from judgment of the general term of the supreme court in the third judical department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict in a action for libel.
    This is the second appeal to this court in this action. On the former appeal (121 N. Y. 461; 31 St. Rep. 379), the judgment in favor of the plaintiff was reversed because of the refusal of the trial judge to instruct the jury that the defendant had established a justification of the charge in the article of November 22, 1886, imputing dishonesty and unfair dealing on the part of the plaintiff in presenting an unjust and exaggerated claim to the family of General Grant, for his services as undertaker on the occasion of the death of General Grant, July 23, 1885.
    On the second trial, the plaintiff, although he had set forth in his complaint this charge as to the unjust and extortionate character of the claim of Holmes & Co. as one of the grounds of action, omitted to read this part of the libelous article to the jury, but put in evidence and read to the jury that part only which alleged in substance that on the afternoon and evening of the 23d of July, during the time when, as the plaintiff claimed, he was rendering service as undertaker he was intoxicated. The defendant in his answer justified both the charge of attempted extortion and the charge of drunkenness, and also alleged, in mitigation of damages, the circumstances under which the publication was made.
    The defendant, after the plaintiff had rested, put in evidence and read to the jury the whole article and gave evidence tending to justify the charge of drunkenness. This was met by counter •evidence on the part of the plaintiff, and upon this issue (the only one which was submitted to the jury) the jury found for the plaintiff and rendered a verdict in his favor for $3,500. During the course of the trial the defendant offered to prove in mitigation of damages that the plaintiff presented to the family of General Grant an exorbitant bill for his services, and in substance to pi’ove the truth of the alleged libel relating to that subject. The plaintiff objected to the evidence and the court excluded it, and the defendant excepted. The question is, was it competent for the defendant, in mitigation of damages as to that part of the alleged libel charging drunkenness, to show that the charge of attempted •extortion made in the article was true. The plaintiff, who carried •on the business of an undertaker at Saratoga Springs, was, through Mr. Arkell, and by direction of Dr. Douglas, notified from Mount McGregor on the morning of July 23, 1885, to come to the latter place, and immediately responded to the notification and took charge of the body and proceeded with the process of embalming. In the afternoon of the same day Mr. Merritt, an undertaker from Hew York, who had been sent for by the son of General Grant, arrived and from that time assumed control. He superseded the plaintiff and practically the whole service rendered by the plaintiff was confined to what he did preceding the arrival of Merritt. He, however, visited Mount McGregor daily until the 30th of July, the day when the body was taken to Hew York. •Subsequently the plaintiff sent a bill for $500 to Col. Grant for his services and disbursements. The bill was given by 'Col. Grant to Merritt. Correspondence ensued between Merritt and the plaintiff. At Merritt’s suggestion the plaintiff had an interview with an army officer of the United States with respect to the bill, but it was not paid. Several months later the plaintiff sent the bill again to Col. Grant, who returned it accompanied with a letter in substance denying the validity of the claim and stating that Mr. Merritt was alone employed to superintend the preparations for the funeral of General Grant, and advising plaintiff that the bill should be presented to-Merritt. On the •30th of September of the rfext year a telegraphic dispatch purporting to have been sent from Saratoga Springs was printed in The Sun, a newspaper of the city of Hew York, stating that the plaintiff’s firm had notified Mr. Arkell of a suit about to be brought against him for services rendered by the firm in embalming the body of General Grant, and purporting to give an account of the services. It stated that the bill (a copy of which was given) had been presented to everybody connected with the family of General Grant except Mrs. Grant, and had been “ repudiated all around ” and that the attorney for the plaintiff said “ that he had found no one connected with the deceased general who-seems to feel any moral obligation to pay for the care of his remains and their preservation for burial, and so they decided to-sue Mr. Arkell.” Appended to the dispatch as published was a statement from the editor of The Sun that “If Messrs. Holmes & Co. will be good enough to send the bill in question to the editor of The Sun, he will remit them the amount.” A few days later, on the 4th of October, 1886, a letter from Holmes & Co., addressed to the editor of The Sun was printed in that paper, purporting to be “ a plain statement of the facts ” relating to the bill of Holmes & Co., in answer to the many statements made in the public press, “ which are either perversions of the truth or positive falsehoods.” The letter then proceeded to narrate the circumstances of the employment of Holmes & Co., the services rendered, the efforts made to collect the bill and their failure, and that as a last resort they were advised to fall back on Mr. Arkell. Eeferring to the circumstances of this employment and their subsequent treatment the writers said: “We feel a degree of certainty, however, that if the dead general were now alive he would see that similar services rendered to his household should not re- , main long unpaid, nor hesitate to acknowledge a claim in favor of those who performed them.” The letter concluded with an intimation that if the offer of The Sun was still open and those whom the writers deemed “ legally and morally bound to pay the claim ” do not pay it, the offer Would be accepted. Subsequently, and on the 13th of October, 1886, the bill was paid to Holmes & Co. by The Sun, and the fact of such payment was announced in that paper. Meanwhile after the publication of the letter of October 4, 1886, and the payment of the bill, letters were written to The Sun by Harrigan and Sullivan, who assisted Merritt in taking charge of and embalming the body, controverting in many respects the statements in the letter of Holmes & Co., but these letters The Sun did not publish. Subsequent to the payment of the bill by The Sun and before the publication of the alleged libel, correspondence took place between Col. Grant and The Sun, in which Col. Grant, while denying the justice of the claim, stated that the family were unwilling that the bill should be paid by The Sun, and he in closed a check for the amount, which The Sun declined to receive, and it was returned to Col. Grant. On the 22d of October, 1886, a communication from Harrigan, the embalmer employed by Merritt, was published in live Press & Knickerbocker., denying many of the statements in the letter of Holmes & Co., and which .referred to the payment by The Sun of a bill which the family of General Grant pronounced “ blackmailing in color,” language which was quoted in the alleged libelous article and which forms one of the libelous paragraphs counted on in the complaint.
    It was subsequent to the circumstances above mentioned that the alleged libel of November 22, 1886, was published in the New York Times. The article is headed “ Even beyond the grave. The malice of The Sun hounds Gen. Grant.” It states that an undertaker’s bill was used as a “ pretext for causing paiñ to the dead hero’s family.” The plain intent of the article was to denounce The Sun for its officious and offensive interference in paying the bill of Holmes & Co., without the knowledge o'f the family of General Grant, and the justice of which they denied. The article purports to give a history of the services rendered by Holmes & Co. It refers to the publication of the dispatch of September 30, 1886, and tne appended offer of The Sun to pay the-bill of Holmes & Co., made without consultation with the family of General Grant; to the letter from Holmes & Co. of October 4, 1886, and the refusal of The Sun to publish the letters from Harrigan and Sullivan; to the pain caused to General Grant’s family by the payment by The Sun of the bill, and to the subsequent correspondence between The Sun and Col. Grant before alluded to. It characterized the action of The Sun as wholly “ unnecessary and malicious.” The article then proceeds to give the statements made by Merritt, the undertaker who superseded the plaintiff in charge of the body, to a reporter of The Times. The interview relates to the services rendered by Holmes & Co., and the report contains the statements as to the intoxication of the afternoon and evening of the 23d of July, 1885, which, with the charge as to the extortionate character of the bill of Holmes & Co., constitute the libelous matter counted on in the complaint.

      B. F. Finstein, for app’lt, Matthew Hale, for resp’t.

       Reversing- 59 St. Rep. 835.

   Andrews, Ch. J.

The primary purpose of the article published in The New York Times November 26, 1886, containing the defamatory matter for which the action was brought, was to expose the conduct of The Sun in officiously offering to pay, and in subsequently paying the claim of Holmes & Co., for alleged services in embalming and caring for the body of General Grant, after the claim had been repudiated by his family and its justice had become the subject of public comment. The offer to pay the bill made in the columns of The Snn, which, as was stated by Holmes & Co. in their letter of October 4, 1886, “ was under no legal or moral obligation ” to pay it, appended to a statement which imputed to the family of General Grant in their dealings with Holmes & Co., a disregard of honor and moral obligation, was well calculated to wound the feelings of the members of the family and to excite the indignation of their friends and the friends of the illustrious soldier whose name was associated with the transaction. The offer carried an implication that the family of General Grant had disregarded and refused to recognize an honest claim for services connected with the preparation of his body for burial, which, if well founded, would justly expose them to animadversion. This was the occasion for the article in The Times, and the plaintiff had made himself a party to the controversy by his letter to The Sun of October 4, 1886, in which he put himself in the attitude of having a just claim for services rendered for the amount of the bill rendered by Holmes & Co., which the family of General Grant had declined to recognize, and, to accentuate the alleged injustice with which he was treated, he intimated his willingness to accept the public offer of a stranger to the transaction to pay the claim in case “those whom we think are legally and morally bound to pay the claim do not sooner recognize their obligation by its payment.” The plairitiff had, by his own act in writing the letter of October 4, 1886, thrust himself and his conduct into the arena of public discussion, and, as might reasonably have been anticipated, the charge made against the family of General Grant of delaying and repudiating the payment of an honest claim was met by public denial in the New York papers, and a public criticism of the origin and character of the claim asserted by Holmes & Co. The defendant failed to establish before the jury the justification set up in the answer to the statement in the article in The Times, that the plaintiff was intoxicated in the afternoon and evening of July 23, 1885, during his alleged employment at Mount McGregor. The -evidence upon the point was conflicting, but the finding of the jury determines the fact in favor of the plaintiff. The plaintiff was, therefore, entitled to recover damages for this misstatement. It was defamatory, and while there is no ground to suppose that the statement was instigated by actual malice or ill-will towards the plaintiff, its absence constitutes no answer to the claim for damages. The publication of a libel is a wrongful act, presumably injurious to those persons to whom it relates, and in the absence of legal excuse gives a right of recovery irrespective of the intent of the defendant who published it, and this although he had reason to believe the statement was to be true, and was actuated by an honest or even commendable motive in making the publication. But the amount of.damages in an action for libel is peculiarly within the province of the jury. The jury may give nominal damages, or damages too greater or less amount as they shall determine. The jury may accord damages which are merely compensatory, or damages beyond mere compensation, ■called punitive or vindictive damages by way of example or punishment, when in their judgment the defendant was incited by actual malice or acted wantonly or recklessly in making the defamatory charge. Taylor v. Church, 8 N. Y. 452. The trial judge left it to the jury to determine, in case they should find for the plaintiff, the whole subject of damages, and whether punitive damages should be awarded. The plaintiff having practically withdrawn from the jury the consideration of the charge in the article that he had presented an unjust and extortionate bill, by not reading that part of the article to the jury, although it was counted on in the complaint, the defendant had no occasion to justify that charge, although a justification was set up in the answer. The omission •of the plaintiff to rely upon this charge was apparently to avoid a trial of the issue of justification thereon, which on the former appeal in this case, was held to have been established. 121 N. Y. 461; 31 St. Rep. 379. On the trial now under review the defendant offered in substance to prove, in mitigation of damages of the charge of intoxication, that the bill presented by Holmes & Co. was unjust and extortionate, and if the evidence was competent for that purpose, the pleadings were in proper form to permit its introduction. We are of the opinion that under the circumstances of the case, the evidence should have been admitted. Of course, the fact that the plaintiff had presented an extortionate bill did not tend to show the truth of the charge of intoxication, nor did it tend to disprove malice on the part of the defendant in making the latter charge that another and dissimilar charge in the same article was true. When the article was published, the' defendant only knew from information as to the truth of either charge. That The Times believed the article to be true in both respects and that in making the statements therein it relied upon what it supposed to be credible information, was permitted to be shown. Whether the information was actually true, it could not know at the time, and so far as its motive was concerned, and whether or not it was actuated by actual malice in making the charge of drunkenness, the actual fact subsequently proved of the truth of the charge of extortion could have no retroactive influence in determining the quo anima of the publication. Hatfield v. Lasher, 81 N. Y. 246. But we think the excluded evidence was admissible as bearing upon the conduct of the plaintiff in the transaction which he had aided in bringing before the public. It must be assumed, in view of the evidence offered in its rejection upon the plaintiff’s objection, that he had posed before the public as having an honest claim, which had been dishonestly rejected, when in truth the claim made was dishonest and unjust. The plaintiff had by his conduct invited' public discussion of the transaction. The article was written and published to meet the aspersions cast by the plaintiff and others upon the family of General Grant. It truly (as must now be assumed) exposed the conduct of the plaintiff as a distinct attempt, through the appeals to the public and otherwise, to coerce the payment of a dishonest claim. In giving what purported to be a history of the transaction, .The limes superadded a false and calumnious incident, without actual malice, as the jury might well have found. The two charges were made in respect of the same subject-matter. They related to the same transaction. The plaintiff makes no denial of the main matter in which the calumny originated, namely, the extortionate and unjust bill, but" does deny the truth of one of the incidents of his conduct alleged in the article. He comes claiming damages for injury to his character. It is well settled that a defendant cannot show, in mitigation of damages for a specific libel, other and disconnected immoralities, but can attack only the plaintiff’s general character. But the charges in the article were not disconnected and independent in any proper sense and we think it plain in reason that the plaintiff ought not in justice to recover punitive damages for a misstatement in the article as to his intoxication, if it apppeared that his conduct in other matters in the transaction to which the charge related had been reprehensible, and when be himself had provoked public discussion. The conduct of both parties in the whole matter should have been permitted to be shown, so as to aid the jury in determining the extent of the damages to be awarded.

The judgment should be reversed and a new trial ordered.

All concur. Judgment reversed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    In the Matter of the Appraisal for Taxation of a portion of the Estate of John B. Seaman, Deceased.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Taxable transfer tax—Contingent remainder.
    A contingent remainder, where its devise works a vested, though defeasable, interest in the remainderman upon the death of the testator, notwithstanding possession does not pass until the death of the life tenant, is not taxable under the Taxable Transfer Act of 1893, where the death of the testator occurred prior to the enactment of such statute.
    2. Same. .
    The right of the state to such tax attaches when the right of succession accrues, but may not be enforced in advance of that future possession and enjoyment, or indefensable ownership,which identifies the persons who ought to pay.
    3. Same.
    The clause in subd. 3, section 1, of the Taxable Transfer Act of 1892, relating to the imposition of such tax, is to be restricted to the case of grants or gifts causa mortis, and does not extend to transfers by will or intestacy so as to subject to taxation rights of succession which accrued before the statute came into existence.

      4. Will—Contingent remainder.
    The rule, applying to bequests of personalty, that, when time is of the essence of the gift and there is no present gift, nothing passes until the prescribed period arrives, has no application to a case in which there are explicit words of gift beyond a direction to divide, s
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the surrogate of New York county affirming an order of surrogate fixing and assessing the transfer tax upon the estate of John B. Seaman, deceased.
    The appellants are the sole surviving trustees under the will of John B. Seaman, and the distributees of the remainder of the trust estate created by the sixth and seventh articles of the will.

      Lucius H. Beers, for app’lt; Edgar J. Levey and Joseph H. Choate, for resp’t.

       Reversing 66 St. Rep. 875.

   Finch, J.

An action was brought by two surviving trustees, - acting under the will of John B. Seaman, for a settlement of their accounts and for the appointment of new trustees to administer two trusts not yet terminated. A question of taxation under the revised act of 1892 (chap. 399) arose, and the comptroller of the city of New York was made a party defendant to effect its solution. Following the decision of the general term in the action, the surrogate made an order of appraisal and assessment which the general term affirmed and from which this appeal is taken. The controversy depends upon the following facts :

Seaman died in October of 1876, having made and executed his last will and testament in the January preceding. By its terms he devised and bequeathed a residue of his estate in these words: “ Sixth. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to my executors, hereinafter named, in trust to apply and pay over the income of one equal undivided half part thereof to my said adopted daughter and niece Elizabeth Seaman, during her natural life, and upon her decease I give, devise and bequeath said equal undivided one-half part of my estate so held in trust for my said adopted daughter and niece to the children of my nephew, George A. Seaman, living at the time of her death, share and share alike. Seventh. I direct and order my said executors hereinafter named to apply and pay over the income of the other equal undivided half part of my estate so held in trust by them to my said adopted son and nephew, George A. Seaman, during his natural life, and upon his decease I give, devise and bequeath the said equal undivided half of my estate, so held in trust for my said adopted son and nephew, to the children of my said nephew, George A. Seaman, living at the time of his death, share and share alike.’’ Both of these life tenants were living at the date of the testator’s death, and both died in January of 1893. When the will took effect there were living four children of George A. Seaman, who still survive and who took into their possession the remainders upon the termination of the trust. There was no inheritance tax law when the will took effect and the estates which it created devolved, but the act of 1892 was in force when the life tenants died and possession of the l’emainders passed to the four children, and the question involved is whether that vesting in possession which occurred after 1892 is a transfer or succession then for the first time passing, and, so, taxable under the act, or, if not then first occurring, is at -least made taxable by the explicit language of the statute. The special term held that the tax law did not operate retrospectively, and subject to taxation rights of succession which accrued before the tax law came into -existence, and that the remainders of the four children were not taxable. The general term reversed the judgment and subjected the remainders to the tax, apparently putting their conclusion upon two grounds, which are that no interest vested in the four children of George, until the death of the life tenants, or at least no snch beneficial interest in possession or expectancy as is made ■subject to taxation, and that the act of 1892 explicitly operates upon such a transfer as occurred.

I think the four children of George took vested interests in the residuary property, both real and personal, at the death of the testator, subject, on the one hand, to open and let in afterborn -children, and on the other to be defeated by death without issue during the running of the life estates. Campbell v. Stokes, 142 N. Y. 23; 58 St. Rep. 451. The case cited related to real estate, but except as to a suspension of absolute ownership, limitations of future or contingent interests in personal property are subject to the same rules as those which relate to future estates in land. 1 R. S. 773, § 2. The respondent, nevertheless, relies upon the rule applying to bequests of personalty that, where time is of the essence of the gift, and there is no present gift, nothing passes until the prescribed period arrives. Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 id. 92. A reference to those cases and others which have followed them shows that the rule formulated was for the construction of bequests where there was no gift at all, except that involved in the direction to divide at a future time. Here there are words of present gift, for the phrase “ upon her decease,” like the expression “from and after,” does not prevent the legacy from vesting.' Nelson v. Russell, 135 N. Y. 137; 48 St. Rep. 64. Explicitly the will says, “ I give, devise and bequeath” the estates in remainder, and we are not compelled to resort to a direction to divide for an inference of an intention to give at all. I think the rule referred to has no application to a case like the present, where there are explict words of gift beyond a direction to divide.

Upon that view of the will, it is obvious that a right of succession to the estates in remainder passed at once on the death of the testator to the four children and was a vested interest, although subject to be defeated or modified by subsequent contingencies. If the Inheritance Tax Law had been in existence at the date of the testator’s death, these interests would have been taxable at once in the sense that the incumbrance of the right of the state would immediately attach. We have held that the tax is not upon the property which is transferred, but upon the right of succession which passes to the successor. Matter of Swift, 137 N. Y. 88; 50 St. Rep. 81. A right of succession passed to the four living children of George at the death of the testator. It came from him; it was transferred by him; taking effect at his death; and passed then or never. But the right itself, although vesting in the successors at once, had its own peculiar character. It could not ripen into possession or enjoyment until the death of the life tenants, and before that event was contingent solely as to the persons who should eventually take and the proportions to be observed. The legatees as a class were certain ; the particular individuals were alone uncertain.

But in just such a case difficulties arose in respect to the application of the Inheritance Tax Law, and received their solution in the case of Curtis, 142 N. Y. 219; 58 St. Rep. 348. There, as here, a right of succession passed by the will, and at the date of the death of the testatrix, but was contingent as to the specific legatees; and it was seen that the immediate assessment and collection of a tax was impossible, because, as the law then stood, the succession of the children was exempt while the substituted successions of the nephews and nieces would be taxable; and we determined that the state must wait for the collection of its tax until the contingency was settled. I sought in that case to free the subject from the nice and difficult questions which attend the construction of wills, but, desirable as the result is, I am less confident than I was then of our ability to accomplish it. The case-did not decide what is now contended on behalf of the respondent. In the counsel’s brief it is described as holding that no beneficial interest passed, and that construction is reached by emphasizing half of a sentence with a neglect of the remaining half. The language used was “ the state cannot establish that any beneficial interest will pass to persons in whose hands it will be taxable, and until it can show that vital and necessary fact its right to the tax cannot arise.” To say that no beneficial interest passed into hands where it was taxable is very different from saying that no beneficial interest passed at all. The doctrine of the case and its-manifest trend was that where the particular persons who were to have the beneficial possession were uncertain, the appraisal and collection must be adjourned until the uncertainty ended, but no-new doctrine of the passing of the right of succession at a date later than that of the will was at all asserted.

It is said, however, that the right of succession passing in remainder by the will was at best merely technical and nominal, and that the beneficial interest did not pass until the termination of the life estates. In one sense that is true. The right of succesion to specific individuals might prove barren, and for that reason the claim of the state should be adjourned, and the new law of JL892 fully recognizes and provides for such an adjournment, but a necessary and admissible delay in appraisal and collection is a very different matter from an assertion that no beneficial right of succession passed at all until after the decease of the life tenants. Next, the language of the act is relied on to effect the result, and it presents the real and difficult question requiring solution. Section one of the act imposes a tax upon all transfers of property to persons or corporations not exempt from taxation in the cases thereafter specified. The first subdivision embraces transfers by will or by intestacy from residents of the state. The second covers similar transfers of property within the state where the decedent was a non-resident at the time of his death. So far the transfers take place necessarily at the moment of death, for the will on the one hand and the intestate laws on the other operate and speak from that date, and any special provision about that was needless. But then comes the third subdivision introducing a new case. It reads thus: “ When the transfer is of property made by a resident or a non-resident when such non-resident’s property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.” At this point are evidently referred to grants or gifts causa mortis; that is, those effecting the result of a will or of intestacy by a grant or gift made during life, and so by a different process. The subdivision then proceeds: “Such tax shall also be imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy to any property or the income thereof by any such transfer whether made before or after the passage of this act.” If we give this language a general and broad application, making it cover not only grants or gifts causa mortis, but also transfers by will or- intestacy, we give the act a retrospective operation, and subject to taxation rights of succession which accrued before the statute came, into existence. Of course we ought not to do that upon any doubtful or ambiguous expression. The words of the statute have their full and natural force when applied to the new case, immediately preceding, of grants-or gifts causa mortis. A grantor may have conveyed and delivered his deed before 1892, in contemplation of death, and to take effect upon the happening of that event, or reserving a power of revocation, as well as the possession or enjoyment, during his lifetime, and the legislature certainly intended to put such a transfer on the same footing as one by will. It is of no consequence that the will was executed before the statute if the death occurs after, and the same rule was intended to be explicitly applied to grants causa mortis. Though the deed precedes the tax law, as the execution of the will precedes that law in a possible case, yet the transfer in both instances is to date from the one event which makes it operative and effective. So much the legislature certainly intended, and so much can be admitted without making the statute operate retrospectively. Did the legislature mean more than that ? The argument for an affirmative answer rests somewhat upon the expression: “Shall be beneficially entitled in possession or expectancy." But these four children, at the death of the testator, were “ beneficially entitled ” to their remainders in “expectancy.” An estate “in expectancy” is one where the right to the possession is postponed to a future period, and it is “ beneficial ” where the devisee takes solely for his own use or benefit, and not as the mere holder of the title for the use of another. So that the four children, as I have said, were beneficially entitled in expectancy, at the date of testator’s death, to the estates which later came into their actual possession.

In addition, it should be observed that the statute draws the distinction between the passing of the right of succession and the subsequent enjoyment, or termination of a defeasible quality. The right of the state attaches when the right of succession accrues, but may not be enforced in advance of that future possession and enjoyment, or indefeasible ownership, which identifies the person who ought to pay. I think that is the meaning of the statute, although in some respects it is not free from ambiguity, and that we ought not to give it the retrospective effect for which the respondent contends.

The order of the general term and of the surrogate should be reversed, with costs, and the proceedings be dismissed.

All concur. Judgment accordingly.


author: Peckham, J.

text:
    The People, Resp’t, v. Bartholomew Shea, App’lt.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Appeal—Criminal action.
    Upon a review under subd. 8 of section 485, and sections 517 and 528 of the Code of Criminal Procedure, the court of appeals not only acts in the capacity of an ordinary appellate tribunal reviewing errors of law pointed by exceptions duly taken, but it is the duty of the court, if satisfied that the verdict is against the weight of evidence or against law or that justice requires a new trial, to grant it whether any exception shall have been taken or not, in the court below.

      % Court—Extraordinary term of oyer and terminer.
    The governor is not precluded from designating the same time and place for holding an extraordinary term of the court of oyer and terminer as were previously designated by the justices of the supreme court for holding a regular term of the court.

      3. Criminal Action—Indictment—Motion to dismiss.
    • A motion made to the trial court to dismiss an indictment for murder, on the ground, among others, that certain persons, not officers of the law, had issued and distributed to each person on the grand jury list a circular letter advising them as to their duties and on other questions alleged to be prejudicial to the defendant, is properly denied, where it appears that there was no proof that any man was on the panel who was not a legally constituted juror, or even an allegation that the evidence given before the jury was incompetent in its nature or insufficient^ if believed, to warrant the indictment.
    4. Same—Motion to postpone. '
    A motion to postpone the trial, based upon the affidavit of the defendant’s attorney, which does not assert that there is any absent witness, but only suggests that the counsel want time and that it is not customary to try an indictment for so grave an offense so soon after it is found, is properly denied.
    ■5. Appeal—Court op appeals—Criminal action.
    Upon a review under subd. 8 of section 485, and sections 517 and 538 of the Code of Criminal Procedure, the court of appeals will not reverse the finding of the jury where such finding is not clearly against the weight of evidence and does not appear to have been influenced by any improper considerations, in case there is at least a conflict in the evidence from which different inferences might be drawn.
    6. Evidence—Murder—Another oppense.
    Evidence, which is relevant to the issue by tending directly to explain or characterize the act which is in question on a criminal trial, is not incompetent or inadmissible because it also tends to, or does, prove the accused guilty of another crime.
    7. Criminal action—Indictment—Omission op name op witnesses.
    The defendant is not entitled, on a motion after conviction, to a new trial on the ground that the names of some of the witnesses, who were examined before the grand jury, were not indorsed upon the indictment as required by section 371 of the Code of Criminal Procedure, which omission was not ascertained by him till in the progress of the trial; especially not, where he has suffered no prejudice by the omission, or it does not appear that the omitted witnesses were of such a character that he was prejudiced by the reception of their evidence by reason of the fact that he had no time or means to show their true character, or that their particular testimony was false.
    Appeal from judgment of the court of oyer and terminer of the county of Renesselaer, entered upon a verdict convicting defendant of the crime of murder in the first degree in killing one Robert Ross.

      John T. Norton and Galen R. Hilt, for app’lt; Thomas S. Fagan and George Raines, for resp’ts.
   Peckham, J.

The defendant, having been convicted of the crime of murder in the first degree at an extraordinary term of a court of oyer and terminer held in the city of Troy, has by appeal brought the record of his trial before this court for review pursuant to subdivisions of section 485, and sections 517 and 528 of the Code of Criminal Procedure.

There has been imposed by the sections of the Criminal Code above mentioned a very arduous duty upon this court. We act not only in the capacity of an ordinary appellate tribunal reviewing errors of law pointed out by exceptions duly taken, but if satisfied that the verdict is against the weight of evidence or against law or that justice requires a new trial, it is the duty of the court to grant it whether any exception shall have been taken or not in' the court below. The duty imposed upon us is that oí reading the whole evidence in the case of every conviction of murder in the first degree. The Code provides, subdivision 8 o£ section 485, that the case and exceptions shall consist, among other things of a copy of the stenographer’s minutes of the trial, the result of which provision is that a large mass of evidence, frequently upon points not really disputed or disputable, is returned, all of which must yet be perused before this court can properly cometo acon-' elusion in the case. It seems to us that a practice might be provided by the legislature which, while retaining all that is now sought for in an appeal to this court, would yet restrain within some reasonable limits the printing of a vast mass of prolonged examinations and cross-examinations filled with repetitions and immaterial matter and set forth by question and answer. The: case now before us is an apt illustration of the vice of this kind of practice. Ten thousand folios, embracing some two thousand printed pages of evidence, compose the record, exclusive of some three hundred pages of examination of jurors, no question in regard to whom was raised or argued in this court. Taking all this mass of evidence and printing it by question and answer with its innumerable and everlasting repetitions of the same thing said in the same way, does no good to any one and at the same time makes the reading a burden which ought not to be imposed upon the court. The evidence should, as it seems to us, be placed in the record and the case settled by the trial judge as in other cases and not more than the material evidence should be in a narrative form.

Notwithstanding this great mass of evidence returned as the present law provides, the whole record has been examined and deliberated upon with that degree of care and attention which the interests at stake would naturally call for.

The counsel for the defendant have argued before us several propositions which will be now disposed of.

First. Objection was made in due time to the jurisdiction of the court to try the defendant on the ground that it was an extraordinary court of oyer and terminer, called under the proclamation of the governor and designated to be held on the same day for which a regular and ordinary court of oyer and terminer had theretofore been properly appointed by the justices of the supreme court, and it was asserted that there was no an-thority of law for organizing or holding more than one oyer and terminer in the same county at the same time. Some criticism was also made in regard to the form of the proclamation convening the extra term, in that it appointed “ an extraordinary court of oyer and terminer’’ instead of an extraordinary term of the court of oyer and terminer as provided for by section 234 of the Code of Civil Procedure. This latter criticism is so clearly without merit that we do not feel called upon to further discuss it The other objection is also untenable. The law provides for the designation by the justices of the supreme court of the times and places for holding the ordinary and usual special terms, circuit courts and courts of oyer and terminer in the several judicial departments of the state. Code of Civil Proc. § 232. It is then provided by section 234 that the governor may, when in his opinion the public interest so requires, appoint one or more extraordinary general or special terms of "the supreme court, or terms of a circuit court or'court of oyer and terminer. He is granted power by the same section “ to designate the time and place of holding the same.” There is no limitation in the grant of power to the governor by reason of which he cannot designate a time and place for the holding of the court, which is the same time and place already designated by the justices of the supreme court for the holding of a regular term of the court. The statute is full and ample, and under it the discretion is vested wholly with the governor as to the occasion for appointing and the proper time and place for holding the extra term of the court which he convenes.

Second. The defendant also moved to dismiss the indictment presented to the court on the ground, first, that improper and unlawful influence was exercised upon the board of supervisors in the selection of the grand jury ; second, that certain persons, not officers of the law, issued and distributed to each of the persons composing the grand jury list of 300 names a circular letter advising them as to their duties and on other matters prejudicial to defendant’s rights 'h. third, that unauthorized persons had interviews with the grand jurors composing the panel which brought in the indictment, and by such means unlawfully procured the bringing in of the indictment.

The motion was based upon affidavits of the defendant and his attorney, and the only fact proved was the distribution of a circular to grand jurors reminding them of the great importance of their duties ; stating some of their powers as evidenced by citations from the statute; offering to further advise them if they would call at the headquarters of the committee of the methods by which each grand jury could do effective work. It was added that the efforts of the committee were not for political or sectarian effect, as it was composed of Roman Catholic priests, several Protestant clergymen and a number of prominent Republicans and Democrats. The circular was signed by the chairman and secretary of the committee, which at the head of the circular was designated the “ Committee of Public Safety.”

The defendant in his affidavit characterized this circular in quite a variety of language, and he therein stated as a fact that it had rendered the members of the grand jury who found the indictment unfit and improper persons to perform judicial functions or to administer justice according to law, or to see that the rights and securities guaranteed by the constitution and the laws of a free country were secured to the defendant The defendant had been confined in jail ever since the death of Ross, and the question would, of course, suggest itself as to.where the defendant obtained his knowledge of the effect of the circular upon the grand jurors who listened to the evidence in the case, and, upon their oaths, alleged that he was guilty of murder in the first degree. His affidavit furnishes no light upon that subject, nor is there any given, by the affidavit of his attorney.

It is unnecessary to here discuss the question whether there was not some matter in the circular which as addressed to possible and prospective grand jurors it would have been better to have omitted. It is the duty of the court to charge the grand jury and to explain the duties of the grand jury in such manner and to such extent as in its discretion is deemed best. Whatever the contents of the circular may have been, some prejudice to the defendant must result, or such facts be proved that an interference of prejudice could justly be drawn therefrom before the court would be called upon to interfere in the way suggested by this motion, even if it had the power to dismiss on such ground. We here assume that the law gives to this court jurisdiction to review the determination of the court below on this point, which we are not at all sure of, but which it is not necessary here to decide because we are of the opinion that the court below decided the questions correctly. There was not a particle of proof that any man was on the panel who was not a legally constituted juror, fulfilling in every respect all the requirements of the law. There was not even an allegation that the evidence given before the jury was incompetent in its nature or insufficient if believed to warrant and call for the indictment which was found. There was absolutely no ground set forth which was sufficient in law to justify the court in dismissing the indictment, and the defendant has no .ground of complaint based upon the denial of his motion.

Third. The defendant then made a motion to postpone the trial based upon an affidavit of his attorney. The motion was denied, and, as we think, properly, although here also it is doubtful if we have any jurisdiction to review the decision of the court on this question. The counsel for the defendant did not assert that there was any absent witness, and, as the learned trial justice said,' the motion seemed to be based upon the suggestion that the counsel wanted time, and that it was not- customary to try an indictment for so grave an ofíense so soon after it was found.

The decision of the court was so plainly right as to require no discussion. .

Fourth. The counsel for the defendant appeals to us for a new trial upon the general merits of the case and on the ground that justice requires it. A plain statement of some of the more important facts appearing in the record will not be out of place in disposing of this ground for a new trial. Some of them are sworn to by the defendant himself upon cross-examination, and others are attested by a large number of witnesses who we have no doubt tell the case as it appeared to them and as in fact it was. There was a charter election in the city of Troy on the 6th day of March, 1894, at which a mayor and supervisors and aldermen were elected. Although the contest was quite animated in the thirteenth ward over the election of mayor, yet the greater interest and excitement were there raised in the election of alderman. Two Eepublican candidates were running for that office, each of whom claimed regularity of nomination, while the Democrats had made no nomination of their own, and the whole contest for aldermen was carried on between the two Republican nominees. Mr. Dunlop was one of such nominees and Mr. Hancox was the other. The defendant was a friend of Mr. Dunlop and sometimes tended bar for him when Dunlop desired to be absent from his saloon. There had been a Republican ward caucus in February preceding the election, at which there had been a contest for the nomination for alderman between Dunlop and another, and the defendant had been present at that caucus, and his friend McGrough was chairman of it. The latter was also a friend of Dunlop. At the caucus there was a disturbance between the friends of the different candidates, the Ross brothers and Boland and some others being on one side, and McGrough, the defendant Shea and others on the opposite side. Shea broke through a window to come into the place where the voting was going on and brandished a revolver which he had, and went to his friend McGrough, who gave to him the ballot box, and the defendant then marched out of the room with it and gave it back to- McGrough some distance from the polling place. The trouble then arose as to the regularity of the proceedings of the caucus, and the two men, Dunlop and Hancox, ran, each claiming to be the regular Republican candidate for alderman of the ward. It is evident from the record that there was great and continuous excitement upon this question of the election of alderman among those who took an interest in the politics of the ward from the time of the caucus up to the day of election. The evening prior to that day, the defendant provided himself with his pistol for the reason, as he said, that he always anticipated more or less of a row on election day. He is a young man and was then but about twenty-three years of age and a moulder by trade, but by no means a steady worker, traveling to the west and working “off and on.” He and his friend McGrough and one or two others with them were very greatly interested in the success of Dunlop, and so far did they carry their interest that during election day they carried on, as leaders and conductors of a number of ruffians, the most open, shameless and reckless system of fraudulent voting, by means of repeating and by false personation of legal voters, that has ever come to our notice. Fraud as a means or measure of concealment was not resorted to. The names and residences of reputable and well-known citizens were openly taken, called out to the inspectors of election ánd voted on by these miscreants while the citizens themselves, whose names were thus taken, were in the booths preparing their ballots, and in some instances the citizen would come out of the booth and protest against his name being used for such a purpose, but no weight was given to the protest, and, when challenged, these repeaters swore in their votes under the names thus taken. A line of legal voters, formed for the purpose of voting in their proper turn, would be broken and this “bunch" of rascals would get to the polls and each deposit a ballot and retiré only to repeat the performance at the same poll in a short time. This was particularly the case at the first election district of the ward, and the defendant and others, acted as the captains and directors of the men who were personally doing the repeating, conducting them to the polls from a saloon near by and gathering them again in time for another raid. This conduct of the defendant and his companions is almost beyond belief, and were it not for the fact that it has been testified to by numerous witnesses, who, so far as we can judge from the record, were reputable business men and entitled to credit, we should have great hesitation in accepting the narrative as true. The reckless audacity display in the commission of these offenses would, of itself, lead us to doubt whether any one would be willing to run such risks as to thus openly violate the law in the presence of so many reputable and decent men. The facts are, however, established by evidence which is simply overwhelming. In the light of such events it is a somewhat difficult task to preserve that judical temper which ought always to characterize the expression of the views of this court. Such acts as those above described are not alone a gross outrage upon the rights of the citizen, but they lead directly to riot, bloodshed and murder; and if they should become habitual, there would cease to be a government by the people, ' might would become right, and anarchy and despotism would be the result. In this case it was by reason and while in the actual perpetration of these lawless acts, that the deceased Eobert Eoss was killed. He was one of four brothers, living in the third district of the thirteenth ward, and all of whom were engaged in the business of manufacturing in the city of Troy. They were all interested in the election, and were bitterly opposed to Mr. Dunlop and his friends. They expected some trouble at the polls, and they had armed themselves with clubs, and some of their party had pistols also. This conduct on the part of the deceased and his friends in thus arming themselves in a peaceful community, is characterized by counsel for the defendant as evidence of lawlessness on the part of the former, and as being the direct cause of the trouble which arose subsequently. Perhaps it was evidence of lawlessness. It is stated that if, instead of arming and preparing themselves for an affray, the deceased and his friends had borne themselves as law-abiding citizens, no trouble would have arisen, and that it wras owing to their own violations of law that the deceased came to his death. Looking at the transaction in the light of the facts testified to, it would seem that, in order to completely act the role of peaceful and law-abiding citizens, it would have been necessary either to remain absent from the polls entirely, or to quietly and without even remonstrance submit to the open violation of the law by the defendant and his companions; to look on with the silence of resignation if not of approbation while they stuffed the ballot box and weighed down the votes of honest and reputable citizens by the votes of these repeaters. Under these circumstances we cannot say that those men who had armed themselves for the purpose of resisting an attack and for self-defense, were themselves thereby guilty of a violation of law because they refused to be driven from the polls and attempted to answer with force an armed attack upon themselves. The arming of citizens for the purpose of forwarding the interests of particular candidates at an election and to intimidate others from the exercise of their legal rights cannot be too severely or too summarily condemned and legally punished. This court cannot listen with complacency to an account of the arming of the citizens of any portion of the state for the purpose of going through the forms of holding an election and to be ready to protect themselves in case of attack. It is an appeal to the force of arms instead of to the protection of the law, and such an appeal is one which courts cannot be expected to look upon with the least patience or toleration. Still, when the whole case is surveyed, the criticism comes in bad form from the defendant, and we think that there is nothing in the evidence which justifies him or mitigates the character of his act.

Up to the time when the defendant and his companions appeared, it is not pretended that the least disorder had prevailed at the polling place, although it may be assumed there were men belonging to all parties there present. The trouble commenced upon the arrival of the defendant and friends, and the fighting were precipitated by them. While condemning in unmeasured terms the general practice of carrying weapons, we cannot, in this case, admit that the deceased or his companions ought to be denounced as violators of the public peace because of their conduct on this -occasion. Courts cannot and must not recognize the claim of right to take the law into their own hands by citizens under any circumstances, but at the same time they can see the difference and make the proper distinction between acts done in furtherance of an unlawful purpose and in violation of the criminal law, and those acts which are done by private citizens in order to obstruct the accomplishment of that purpose and to prevent such violation. The citizen must not himself be guilty of a violation by others, but the intent with which an act is performed is the important fact which characterizes and gives point and force to the act itself. We think the action of the deceased and his friends cannot properly be said to have led to this catastrophe. Early on election day the deceased and his brothers went to the polling place of the third district There is no proof of any dispute or difficulty arising there in the absence of the defendant and his companions, and it is entirely evident that the trouble that was anticipated was to come only from that quarter. The defendant and his friend Mc-Cfough and some others were present at the third district polling place on one or two occasions during the forenoon and before the time when the affray in question occurred. On one-of these occasions they commenced' a quarrel with some one of the Eoss party and struck one or two in the face, but nothing serious then took place, and the defendant and his party left the polls. Finally, a little after twelve o’clock, the defendant, McG-ough and others, to the number of seven or eight, were seen on their way to the third district polling place, and some of their number, in the presence of the defendant, were heard to utter threats to “do them,” that they were strong enough and they should “come on “to hell with them,” and such expressions. Upon their arrival at the polling place, which was held in a small house a little back from the street, they started at once for the room in which the ballot boxes were, the defendant only going as far as the hall leading into the room, and some of his men passing in and at once proceeding with their scheme of voting. It was at this time, and while the defendant was in the hallway, that one of his men assumed the name of William Armstrong, of 51 Glen avenue, and claimed his right to vote on such. The real William Armstrong was then in the booth preparing his ballot and hearing the claim stepped out and faced the man and asked him if his name was William Armstrong and if he lived at 51 Glen avenue, to which the man answered “Yes,” and Armstrong replied, “You don’t do it; I am the only man that lives there; I occupy the whole house; you don’t live there at alland turning to the inspectors, he said: “ This man has no right to vote here: he is a repeater.” The man voted, nevertheless, on that name, and the real Mr. Armstrong had to swear in his vote. One or two more efforts to repeat were made by others of the defendant’s men while he and his companions were in the hallway blocking up the same- to a great extent, and exercising a supervision over the whole of their subordinates. Before the completion of that work one of the opposition, named Hayner, came to the hallway and persisted in an attempt to get through it and into the voting room, claiming as much of a right to be there as any of -the others. His passage was blocked and obstructed by defendant and his companions, and the result was. the expulsion of Hayner, who was immediately followed by defendant and others, all going out into the open air. Here a slight, affray took place, the defendant and McGough striking some of the others, among them Hayner, and the latter replying by attempting to strike back, and pulling a sort of wrench, used by stovemounters, from his pocket, he attempted to use, and did use, it upon some of his opponents. The defendant and McGough had pistols in their hands. The crowd became quite thick, surging back and forth and up and down the open street, and during that time McGough and William Ross came together, and the latter was shot by the former and fell at once. Robert Ross, seeing the difficulty, started towards where his brother fell and ran in pursuit of McGough, who was running away, and whom he soon overtook, and just at that time, owing to some stumble or misstep on the part of one or both, McGough and Robert Ross fell, the former under and the latter half covering him. At that time the defendant came toward Robert, and while Robert was in a sitting or bending attitude the defendant walked up behind him, and placing his pistol within two or three feet of the hack of Robert’s head deliberately fired it into him; the defendant was then, as some of the witnesses testified, seen to walk around in front of Robert and again to fire his pistol at him, McGough, in the meantime, had twisted himself from under Ross, and getting up, proceeded to run away, in which action the defendant then joined. This description of the affray which resulted in the death of Robert Ross is very meagre as compared to that given with great detail by the numerous witnesses called by the prosecution, but enough is given to-show the main points. Some fifteen or twenty shots in all were-fired by different men. The first ball which was fired by the defendant at Robert Ross penetrated the back part of his head, entered the brain and caused instant death. The autopsy showed this fact.

As may be supposed, the account of this affair given by the defendant and his witnesses differs radically from that which has. been stated above. The facts claimed by the prosecution were proved by more than twenty different witnesses, and while no two saw the whole transaction in exactly the same light as to every detail, yet they all agreed as to the main facts in regard to the shooting of the deceased, and as to how and in what position relative to the deceased the man stood when the shot was fired. All the witnesses did not recognize the defendant as the man who did the shooting, being too far off to identify him, but about fifteen respectable men saw the occurrence and identified the defendant as the man who did the shooting, and under the circumstances detailed above. The defendant denied in toto the shooting; he denied that he was at the spot at the time the shooting was done, and insisted that at the time he had himself been shot, and was leaning up against a fence too weak to stand alone. In the course of the affray it is true that the defendant was shot and slightly wounded, but no serious effect was produced by it, and he was seen to run from the place as soon as he had done the shooting. The defendant is contradicted in his story not only in its main points by many witnesses, but he was himself guilty of several misstatements as to the occurrence when asked about it soon thereafter. He denied having had any pistol, and he denied having done any , shooting on the day in question, and it is plain that each denial was false, and in the course of his cross-examination he so conceded. The witnesses which were called for him were the men who were his companions during the day, and were present at the time of the affray. They appeared in a very unsatisfactory light on cross-examination as to their character and antecedents. One or two of them had served terms in the penitentiary and not one of them seems to have been a steady worker at anything, other than frequenting saloons and passing his time in such pursuits as-are usually followed there. While denying the shooting himself, the defendant and his witnesses endeavored to give the impression that the deceased was in reality killed by one Boland. It appears without contradiction or dispute that Boland was one of the Ross party, supporting the same candidates, a member of the same wing of the Republican party and a close friend of the deceased and of his brothers and that he was engaged in a respectable business in Troy. How there could be any possibility of Boland shooting Ross was something calling for an explanation as on its face the proposition was absurd. The explanation was attempted on the part of the defendant by showing one man fifteen or twenty feet ahead of Robert Ross and, just before the shooting, running away from Ross, while a few feet in the rear of Ross, who was himself running in pursuit of the fleeing man, was Boland who had a pistol in his hand and while running fired it and Ross immediately fell. This it was urged left room for the explanation that both Ross and Boland were in pursuit of the same man and all three in a line running towards the west, the unknown man ahead, Ross behind and within fifteen or twenty feet of him, and Boland very near Ross but behind him and that, while thus in pursuii, Boland, in attempting to shoot the foremost man, did through mistake shoot Ross. A great many well-attested facts are at variance with this theory. The course of the wound in the back of the head of Robert also demonstrates the falsity of the ■claim. One of the witnesses for the defendant took the position that there was no mistake about it; that he saw Boland aim his pistol directly at the head of Ross and but a short distance from it, and then deliberately fire at and kill bis companion and friend.

Such manifest and reckless perjury it is sickening to read. To sum up, here were presented the two different contentions on the part of the prosecution and the defendant. There was no claim or assertion made on the part of the defendant that the killing was done in self-defense or in the heat of passion or to aid a companion of the defendant. His version of the occurrence precluded' any defense of that nature, for he denied that he shot the deceased at all and asserted that the whole evidence of the People as to the affray, so far as he was concerned, was a deliberate falsehood or at any rate a mistake. The issue thus formed was presented to the jury in a fair charge by the learned trial judge, to which no exception was taken and the jury have found the defendant guilty as indicted. We are now asked to set that verdict aside upon the merits and to grant a new trial because justice requires it. We cannot do it. We are entirely satisfied that the jury have arrived at a just conclusion, although if we had a rational doubt on that subject, there being at the least a conflict in the evidence from which different inferences might he drawn, we should not feel at liberty to reverse the finding of the jury where such finding is not clearly against the weight of evidence and does not appear to have been influenced by any improper considerations. People v. Taylor 138 N. Y. 898; 52 St. Rep. 914.

Fifth. The counsel for the defendant challenge the correctness of the rulings of the trial court in admitting evidence of the repeating in the presence and under the supervision and direction of defendant at the different polls as stated in the point last discussed. Proper exceptions were taken to the decisions of the court in that regard and the question has been argued before us at great length. The objection taken is that the evidence was immaterial and had no proper or legitimate bearing upon the issues joined for trial, and that it simply tended to show the defendant guilty of some other, separate and different crime from that for which he was indicted and then on trial and'to greatly prejudice him in his defense. The impropriety of giving evidence showing that the accused had been guilty of other crimes merely for the purpose of thereby inferring his guilt of the crime for which he is on trial may be said to have been assumed and consistently maintained by the English courts ever since the common law has itself been in existence. Two .antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, bis practices, and in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such course is pur.sued than where it is omitted. The common law of England, however, has adopted another and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear, beyond a reasonable doubt, to a jury of twelve men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question. In People v. Sharp, 107 N. Y. 427; 12 St. Rep. 217, the doctrine is dwelt upon and the cases upon the subject collected.

Evidence, however, which is relevant to the issue by tending, for example, directly to explain or characterize the actwhich is in question on a criminal trial'has never been held incompetent or inadmissible because it also tended to, or did, prove the accused guilty of another crime. We think the evidence in question comes under this latter rule. It was received by the learned trial judge upon the question of the intention and deliberation of the defendant in firing the shot at the deceased. The evidence admitted, together with other evidence, shows the defendant highly interested in the election of his friend for alderman, and it also shows that for the purpose of furthering such election he arms himself with a pistol In order to overcome possible, if not expected, opposition, associates with himself several others, and they, acting together, secure the services of a number of men whom they conduct and direct to the various polling places for the purpose of depositing their ballots. It shows that these leaders were provided with pistols and were ready to overcome even armed opposition, which in the nature of things, thej'- must have foreseen might be the accompaniment of their work. It shows them at the third district polling place two or three times before they finally made the attempt to work in their fraudulent and illegal ballots, and they saw there was a crowd of citizens there with whom it might be dangerous to come in conflict for the purpose of accomplishing their object. With this knowledge the defendant and his companions nevertheless come to the third district polls for the last time and there make the attempt to have their repeaters vote. In the course and by reason of carrying out this “repeating” plan, which could only have been adopted to further accomplishment of the main design to secure by any means the election of Dunlop, an affray commences which the defendant had necessarily foreseen was probable and which he would seem to have been prepared for. The jury might judge his actions from that moment as those of a man. who had deliberated upon if not planned the disturbance which arose, and such actions the jury might say were not those of a man suddenly confronted with excitement and danger, but of one who having foreseen the commencement of the affray was prepared to act during its continuance with calmness and deliberation. '

Evidence which thus plainly tends to show that the affray must naturally have been regarded as probable and calculated upon by the defendant, tends also to show directly the deliberate character of the act of defendant in firing the shot which killed the deceased; it tended to show against the defendant that, the disturbance itself was not an ordinary election affray growing out of a sudden and unpremeditated dispute between men whose feelings had become wrought up to a high state of nervous excitement which was quickly followed by a resort to personal violence and which culiminated in the use of a deadly weapon in a moment of uncontrollable passion. On the contrary, the evidence in question fends to render clear, to strengthen and to free from doubt the q uestion as to the state of the defendant’s mind in regard to coolness and deliberation at the very time when he aimed the shot which killed the deceased; it tends to shows that the act-was deliberate and that in its perpetration the defendant was guilty of murder in the first degree. What took place at the caucus in February proceeding the election was drawn from the defendant, within the proper limits of a cross-examination and was competent as an examination of any witness for the purpose of bearing upon credibility and his interest. No crime was proven there, and none asserted as against Shea, the defendant. It showed the great, interest he took in the success of his friend Dunlop from the commencement of the contest down to the murder of Ross. Upon-the ground which has thus been stated and for the purpose mentioned we are clear the evidence objected to as to repeating was-admissible, and the defendant’s exception thereto is without, merit.

Sixth. The defendant’s counsel moved for a new trial after his-conviction, and among other grounds, specified the failure of the-prosecution to indorse on the indictment the names of all the witnesses called and examined before the grand jury. It appears-that the names of two witnesses who were called before the grand ‘jury were omitted from the indorsement of names on the indictment, all the other names being there. How the names happened to be omitted was not explained. Section 271 of the Code of Criminal Procedure directs that the names of the witnesses examined before the grand jury must be indorsed upon the indictment, before it is presented to the court. If not so indorsed, the court must, 'upon the application of the defendant at any time before trial, direct the names of such witnesses, as they appear upon the minutes of the grand jury, to be furnished to him forthwith. The-defendant’s counsel concede that if no names had been indorsed upon the indictment, the course pointed out by the above section would have been their only remedy, but they assert that inasmuch as some names appeared on the indictment, they had the right to. suppose that all of them had been indorsed, and when in the ■course of the trial it appeared that those two names had been omitted, they had the right to pursue this remedy and to demand that a new trial should for that reason be granted. We dissent from ■that view of the subject, and we fail to see any such distinction. While the counsel for a defendant might if so disposed, assume that the indictment had all the names ■ indorsed upon it, still the fact that it bore some names would not preclude the defendant from seeking information upon that subject and from appealing to the court under that section for the purpose of obtaining information, and if it should then appear that any names had been •omitted, the court could direct them to be then furnished.

In addition,to that answer in this case, it does not appear that defendant suffered the least prejudice on account of the omission, ■or that the witnesses were, in truth, of such a character that it prejudiced the defendant to have their evidence received, while he had not had the time or means at his disposal to show their true character or that their particular testimony was false.

Under such circumstances, it would be a most lame conclusion for this court to order a new trial and set aside a verdict which had been reached after so enormous an amount of labor and the expenditure of so large a sum of money as this trial has already cost the people of Rensselaer county. Where it is entirely clear the defendant has suffered no prejudice from this omission to comply with the statute, it is the duty of the court to deny the application, assuming that it might, under some possible circumstances, be ground for thé granting thereof, and that this court might review the determination of the trial court.

This completes the review of the questions which were prominently brought to our attention on the argument. We have looked at the other questions raised by the numerous exceptions of the counsel for the defendant upon the trial, and also the other grounds for reversing the convictions which are set forth in the proceedings subsequent to the verdict. We find nothing in 'them to warrant us in disturbing the judgment of the court below.

The record which we now close contains a melancholy instance •of the results of idleness and bad companions upon a young man. This defendant and many of his associates had no steady employment, and apparently had no desire for it. They themselves concocted and entered upon the plan of electing their candidate by fraudulent votes, and they pursued it as if it were a fair, decent and honest object. It does not appear, nor is it important, to know to what political party the defendant ostensibly belonged. Such men have no politics. As the soldiers of fortune of a bygone age fought, so these repeaters vote for the candidate who pays them. They are neither Democrats nor Republicans, but are the enemies of law and order at all times and under all circumstances. The crime is one against self-government, against republican institutions, against freedom itself.

Government by the people cannot long exist if practices suchas this record discloses are continued. We cannot, and we do not, for moment believe that their are prominent public or party men of either political party who countenance or who would sustain these modes of conducting an election, otherwise we should despair of the republic. The defendant and his companions seem to have been alone in their methods and to have proceeded in a manner evincing the most entire disregard of every principle of law. We feel, therefore, that unless our institutions are to become a farce,, and elections are to represent a combination of force and fraud, such practices as are now spoken of must be stamped out by the most vigorous and active legal measures and by the co-operation of all political parties. The repeater is the modern pirate, an enemy of organized and civilized society, and it is the duty of all men of all parties to assist the officers of the law in the prompt punishment of the guilty. The importance of this subject cannot be overestimated, but this is not the occasion to enlarge upon it. Viewing this case in ail its aspects we feel that there is nothing for this court to do other than to affirm the judgment, and it if affirmed according.

All concur. Judgment affirmed.


author: Haight, J.

text:
    The People, App’lt, v. The American Steam Boiler Insurance Company. Henry S. Ward, as Receiver, Resp’t.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Insurance—Casualty— Receiver—Interest.
    A receiver of a casualty insurance company, organized under chap. 468 of 1858 and which had not issued registered policies or annuity bonds, cannot, after judgment of dissolution hut before the rights of the policyholders have been settled, compel the superintendent of insurance of the state of New York to transfer to him interest collected by such superintendent upon securities deposited in the insurance department by the company for the benefit of its policyholders.
    3. Same—Section 76 of insurance law.
    Section 76 of the insurance law has no application to casualty insurance-companies.
    3. Same—Section 14.
    Section 14 of the act has reference solely to a solvent corporation stilt continuing active business.
    Appeal by the superintendent of insurance of the state of Hew York from order of the general term of the supreme court in the-first judicial department, which affirmed an order of special term, directing said superintendent to transfer and pay over to the receiver of the American Steam Boiler Insurance Company the interest collected by him upon the securities deposited by the company for the protection of policyholders.

      John W. Hogan, for app’lt; J. C. O'Conor, for resp’ts.
   Haight, J.

The American Steam Boiler Insurance Company-is a casualty company organized under the provisions of chapter 463 of the Laws of 1853. Pursuant to the provision of that act it had deposited with the superintendent of insurance the sum of $100,000 in trust for the benefit of its policyholders. In Hovember, 1893, a judgment was entered in this action dissolving the franchises of the company, forfeiting its corporate privileges and appointing Henry S. Ward as receiver. After the dissolution of the corporation the superintendent of insurance collected $3,000 interest that matured on the deposits made with him for the benefit of the policyholders. The receiver then demanded of the superintendent the transfer of such interest to him, which was refused, and thereupon an application was made to the court for an order compelling such transfer. This motion was denied at the special term, but the order was reversed in the general term with leave to renew the motion. People v. Am. S. B. Co., 81 Hun, 498; 63 St. Rep. 478. Upon such renewal the motion was. granted, and the same has been affirmed in the general term.

The right of the receiver to a transfer to him of the fund or security deposited with the superintendent of insurance depends upon the construction to be given to the provisions of chapter 690 of the Laws of 1892. Under the statute of 1853 it has been held that the superintendent holds the securities deposited by virtue of a statutory trust created for the benefit and protection of the policyholders, and that the receiver when appointed is not entitled to have the fund turned over to him until the rights of the policyholders have been settled. Ruggles v. Chapman, Supt. etc., 59 N. Y. 163; People ex rel. Ruggles, Receiver, etc., v. Chapman, 64 id. 557; In the Matter of the Atty.-Genl. v. The N. Am. L. Ins. Co., 92 id. 654; In the Matter of the Guardian Mid. L. Ins. Co., 13 Hun, 115; affd., 74 N. Y. 617. By chapter 902 of the laws of 1869 certain life insurance companies were authorized to make special deposits with the insurance department, in addition to the amount of deposits required by law, for the purpose of protecting the holders of registered policy and annuity bonds issued under the provisions of the act. In sections 7 and 8 of that act provisions were made for the conversion of the deposit into money by the superintendent and treasurer in case of insolvency, or in case it should be found that the issuing of additional policy and annuity bonds was injurious to the public interest, and pay the same over to the receiver to be distributed under the directions of the court, first, to the payment of the registered policy and annuity bondholders of the company, and then apply the surplus, if any, with the other assets to the payment of its just debts. Under this act it has been held that as to such companies the receiver was entitled to the deposit. In the Matter of the Application of the Atty.-Genl. v. The N. Am. L. Ins. Co., 80 N. Y. 152; Same v. Same, 82 id. 172; Same v. Same, 85 id. 485; Smyth v. Monroe, 84 id. 354-361. The American Steam Boiler Insurance Company is not incorporated under the provisions of the latter act, has made no special deposit for the benefit of the holders of registered policy and annuity bonds and has issued no such policies or bonds. It consequently is not subject to the provisions of that act. Such was the law as it existed up to the time of the revision of 1892. Have the rights of the superintendent been changed in this regard? By section 70 of the act power is given to thirteen or more persons to become a corporation for the purpose of making -various kinds of insurance, enumerating them, in which life and -casualty are each particularly specified. The next section pertains to the organization of such companies, and the next to the withdrawal of securities upon relinquishment of the business of the company. These sections are doubtless general, having reference to all of the various kinds of insurance authorized by the provisions of the act. Then- follows section 78, which provides for special deposits with the superintendent in addition to the amount required by law for the benefit of the holders of registered policies and annuity bonds. And then sections 74 and 75, both pertaining to registered policies and annuity bonds. ■These sections unquestionably have reference only to that class of insurance and do not apply to companies that do not issue registered policies or annuity bonds. We then come to section '76, which provides that “If at any time the affairs of any such ■depositing corporation shall, in the opinion of the superintendent ■of insurance, appear to be in such a condition as to render the issuing of additional policies and annuity bonds by the corporation injurious to public interest, such corporation shall be deemed insolvent and the superintendent shall report the fact to the attorney-general, who shall bring such action or institute such proceedings as may be authorized by law to be taken against an insolvent insurance corporation. If in any such action or proceeding it shall appear to the satisfaction of the court that the assets and funds of the corporation are not sufficient to justify its further continuance of the business of insuring lives, granting annuities and incurring new obligations as authorized by its charter, it shall enjoin and restrain the corporation from the further transaction of its business and appoint a receiver of its assets and credits, who, upon filing his bond to the people of the state in an amount and with sureties approved by the court conditioned for the faithful performance of his duties, shall take possession of all such assets and credits, including the securities deposited in the insurance department.” Here we have express statutory authority for the receiver to take possession of the deposits, but do the provisions of the section have reference to insurance companies generally, or are they limited to the companies issuing registered policies and annuity bonds ? This section and the one that follows it are a substantial reproduction of sections 7 and 8 of chapter 902 of the Laws of 1869, which, as we have seen, have reference only to companies issuing registered policies and annuity bonds. They immediately succeed sections 73, 74 and 75, which also pertain to the same class of insurance. Section 76 refers to them as “such depositing corporations,” and speaks of annuity bonds; thus, as we think, referring to that particular class of insurance, and not to insurance companies generally. If we are correct in this view, it follows that the provisions of section 76 have no, application to casualty insurance companies, and that consequently there has been no change in the statutes affecting the right of the superintendent to retain the funds or securities deposited with him until the rights and equities of the policyholders are fully determined and adjusted

We see no reason why the interest must not follow the principal. By section 14 of the act the corporation, so long as it shall continue solvent and comply with the laws of the state, shall be permitted by the superintendent to collect the interests or dividends upon its deposits. This, doubtless, has reference to a solvent corporation still continuing active business. It has no application to a corporation that has ceased to exist and has been dissolved by a judgment of the court. Thereafter the superintendent holds the deposits or securities under the trust created by the statute for •the benefit of the policyholders, and as such is entitled to collect the interest thereafter accruing and treat it as a part and parcel of the trust in his hands.

This motion does not conform to the provisions of section 72 of .this act, and consequently it need not be here considered.

The orders of the general and special terms should be reversed and the motion denied, but without cost to either party.

All concur.

Orders reversed.

       Reversing 67 St. Rep. 479.