At the outset of this opinion I shall assume, as I have a right to assume, that all that is to be or can be said in support of this judgment is to be found in the able and elaborate opinion of Judge GRAY. On carefully reading and considering that opinion, my first impression was to record my vote in silence against its conclusion. I confess that this resolve was based upon the desire to avoid the severe and sometimes useless labor that the other course would involve. But on further reflection I have concluded that there is so much to be said about this case that has not yet been said, and so many things to be revealed that are still obscure or not given that prominence that they deserve, that I ought to state a few of the objections, at least, upon which my views of the case are based. While I may run the risk *Page 180 of being charged with prolixity, I hope to be able to throw some additional light on the case, and prolixity ought not to be imputed to a reasonable and thorough discussion of a case in which a human life is involved.
The defendant, through his counsel, has presented to this court various legal objections to the judgment against him that, in my opinion, involve questions of the gravest character. They cannot and ought not to be silently ignored or met by general assertions, or answered by arguments that may be specious, but are far from conclusive. They should be met and answered, if they can be, by arguments so fair and solid as to convince any fair mind, whether that of a lawyer or layman, that they are untenable. If they cannot be answered in that way, the objections ought to prevail, whatever we may think about the guilt or innocence of the defendant.
The crime of which the defendant was convicted is that he advised or procured another to commit murder, and, therefore, under the law now existing, is a principal just the same as if he had committed the deed with his own hand. Formerly the charge stated in the indictment would constitute the defendant only an accessory before the fact, and he could not be tried or convicted until the principal was first convicted. Now the accessory may be tried as a principal, while the real principal may go free, as this case well illustrates. No review of this case will be adequate that does not give a prominent place to certain general features that must at once attract attention and serve to guard the mind against all superficial views or hasty conclusions.
The first thing that ought to be noticed and ought to receive the most careful attention is the character of the proof of thecorpus delicti.
It is a fundamental principle of the criminal law that before any one can be convicted of murder or manslaughter it must be clearly proved that the death of the subject of the alleged crime was caused by a felonious act. The primary question upon this appeal is whether the death of William M. Rice was the result of a crime, and evidence of motive, however *Page 181 strong, cannot establish that essential fact. Death by criminal agency is the body of the crime in all prosecutions for homicide, and at the threshold the burden is upon the People to prove beyond a reasonable doubt that one human being has been feloniously killed by another human being. The death of William M. Rice is admitted, but the allegation that his life was taken by criminal violence is strenuously denied. The fact, if it is a fact, that the defendant hoped he would die and was prepared to seize his vast estate by forgery and fraud if he should die, has no bearing upon the question which overreaches all others, whether he actually died a violent death. Let us look at the evidence, not in search of a victim, but to find the truth.
Mr. Rice was a feeble old man in the eighty-fifth year of his life. His general health had been pretty good for one so far advanced in life until a short time before his death when he ate so imprudently of bananas that he became dangerously sick and was relieved by a violent purgative. This weakened him and he never recovered his strength. Dr. Curry, his physician, was anxious about him and was in daily attendance upon him. While he thought he would recover, he declared that a little thing would carry him off and that the worst might be expected at any moment. The death occurred on Sunday afternoon and the day before Mr. Rice was delirious much of the time. He was delirious very early Sunday morning and in the afternoon showed signs of mental wandering. He was last seen alive by Charles F. Jones, his valet, who says he left him sleeping on the bed when he went out to a restaurant. It was not proved that any one saw him alive after that. Jones was gone about forty minutes and on his return Mr. Rice was lying in the same position as before. He had not moved a muscle so far as Jones observed. Jones believed he was alive, but he could not swear that he was alive. He saw no sign of life. He did not see him move or breathe and did not know but what he was then dead. Believing that he was alive he tried to kill him. With murder in his heart, he did all he could to compass his death, but he did *Page 182 not know and no one ever can know whether he acted upon a living man or upon a corpse. He saturated a sponge with two ounces of chloroform, put it in a cone made out of a towel, placed the cone over the mouth and nose of the body before him and left the room. When he came back thirty minutes later the cone was in the same position as he left it. The body had not moved. The effort of nature to shrink from the pungent odor, the rebellion of the lungs against the poisonous fumes and even the struggle of death had not caused a movement sufficient to disturb the cone. The unnatural gas with its strong odor had entered the lungs and done its work so quietly as not to awaken the sleeping victim. Is this to be believed? Can it be believed with safety upon the word of such a creature as Jones confessed himself to be? So far as we know and so far as Jones knows he might as well have placed the cone upon a face of marble.
In about twenty minutes Dr. Curry was there. He examined the body with care. He put his face over the heart to hear it beat and although his nose was within six inches of the full beard of Mr. Rice, which must have been saturated with the drug but a few moments before, no suggestion of chloroform came to him. He noticed no smell of chloroform in the room. Jones had raised the windows, as he says, and ventilated the room before Dr. Curry came and had thus, as he claims, removed the penetrating odor so completely that an experienced physician could detect no trace of it. Jones also claims that before Dr. Curry came he went to the range and burned the sponge and towel with a match and "they flashed up," as he says, although science says that they did not and could not under the circumstances stated by him. The undertaker and the embalmer came, but during their close contact with the body they observed no odor of chloroform. The use of that drug as the agency of death occurred to no one until Jones had made his fourth and last confession, after he had recanted three others as they were successively demonstrated to be false.
Dr. Curry certified to death from natural causes and the *Page 183 mental worry referred to by him in his certificate tallied well with the facts, for Mr. Rice had been subjected to great anxiety owing to litigation which involved a large part of his estate and a recent fire which resulted in the loss of a quarter of a million. The body was embalmed by injecting through powerful hydraulic pressure a fluid into the arteries which penetrated far and wide. About forty-three hours after the death an official autopsy was made, and the physicians who opened the body removed the vital organs and searched for the cause of death, found no odor of chloroform but they found embalming fluid almost everywhere. While their suspicions suggested poisoning and they turned portions of the body over to chemists for analysis, which when made disclosed no poison, the theory of death from chloroform did not occur to them. That theory was advanced by no one physician or layman, until a long time afterward when Jones made his last confession which involved the falsity of three others; then it was too late to tell with reasonable certainty whether it was the true theory or not, for the body had been cremated and further investigation was impossible.
The most careful examination of the lungs is required in order to tell whether death has been caused by chloroform poisoning or poisoning from any kind of irritating gas. The lungs of Mr. Rice were examined in the most casual, not to say careless, way. They were removed, a couple of transverse cuts made and were then cast aside, although every other vital organ received careful attention. The physicians were looking for evidence of death by criminal agency, but not expecting to find it in the lungs they gave them only a perfunctory examination. They could not swear to the proximate cause of death and did not. Where the most minute investigation was needed, none was made. They did not know whether the embalming fluid had reached the lungs, although they had theories upon the subject. Where certainty was required, there was serious doubt, with a man's life trembling in the balance.
After reading all the evidence upon the subject, I think it *Page 184 cannot be safely held that the autopsy was thorough enough, or that the lungs were examined with care enough to warrant the conclusion that the death was caused by chloroform. If an overwhelming motive had not been shown, no judge would have sent the case to a jury, yet motive does not even tend to establish the cause of death. The law requires that the inference of death from criminal agency must be the only reasonable deduction from the evidence. The People did not meet the burden of proof cast upon them of showing beyond a reasonable doubt that the death of Rice was caused by a crime. It is claimed that he was killed by the administration of chloroform, and no other criminal agency is now suggested, but that agency rests upon too frail a basis to permit the verdict to stand with safety to society. The man who says he committed the murder is suffered to go free, with no attempt to punish or even to prosecute him. The coroner's physicians who made the autopsy and were presented to the jury as disinterested officials, were shown upon the motion for a new trial to have been working hard by experiment and otherwise to help the district attorney make out a case, in the expectation of receiving extravagant compensation for their efforts to qualify themselves as experts. Disinterested experiments made to discover truth are useful, but experiments made and paid for to establish a theory are dangerous. The case was tried in an atmosphere charged with the necessity of making the defendant a victim in order to defeat his claim to an estate worth millions upon millions. The self-confessed murderer was released, the doctors had their money, but the jury did not know that each of these three most important witnesses was testifying against the defendant with a strong inducement to help make out a case against him.
This judgment rests upon the testimony of three witnesses. Without their testimony no court would feel justified in submitting the case to the jury. We must, therefore, take a little closer view of them and of the motives that may fairly be imputed to them. Jones was evidently testifying under a promise of immunity from the public prosecutor, and although *Page 185 he denied that as a witness upon the stand, no fair man can doubt, from the circumstances, that such a promise was made. Although he appeared before the grand jury as a confessed murderer, yet that body found no indictment against him, thus violating in the plainest way their statutory duty. No one can believe that that body would have omitted to indict him except upon the advice or suggestion of the public prosecutor. He was set at large and maintained at the public expense in the hospital, and subsequently in a comfortable, if not fashionable, boarding house, where he had the freedom of the city, attending theatres and places of public amusement until the trial of this case, when, having earned his reward, he was allowed to depart to his native state of Texas, where he now resides in safety. No fair mind can reach any conclusion from these facts except that this accomplice and author of the crime testified under a promise of immunity.
The two other witnesses were public officers, having been appointed physicians to the coroner. In that capacity they were receving a good round salary, to which they had the undoubted right. I have already shown that at the autopsy they found nothing in the appearance of the lungs or in any other part of the body that indicated death from chloroform, but when Jones, in the course of time, had prepared his fourth version of the facts bearing upon the cause of death, they set to work to find, either by the use of their memories as to what the autopsy had disclosed, or by experiments which will be alluded to hereafter, something to corroborate it. One of them tells us that he spent a year making these experiments, and they were wide enough to embrace one hundred and forty specimens of birds and animals. All this time he was working for pay, although he was a salaried official. He presented a bill to the city for seven thousand five hundred dollars which he claimed was the value of his services. He was actually paid five thousand two hundred dollars, as he says, for working up the case. The other physician, who was also under a salary, presented a bill not so large, which was paid. These facts were not known at the time of the *Page 186 trial, and these witnesses were presented to the jury as public officials with no motive to pervert the truth, but acting in the course of their duty in the maintenance of truth and in the cause of justice. The whole point and value of the testimony of these witnesses is that they attempted to prove, and it is said that they did prove, that the lungs of the dead man were found to be congested and that congestion was a sure indication that his death was produced by chloroform. There was absolutely no other point to the testimony given by them except to show that there was at least some congestion of the lungs at the autopsy and that from their professional experience and their experiments upon birds and animals that congestion was proof of chloroform poisoning.
So, we have a case where the three principal witnesses for the People, clearly the witnesses that produced the conviction, were testifying at the trial for great prizes and great rewards. The reward which Jones expected and received was nothing else than his life, and what will not a man give for that? The two physicians testified with the expectation of receiving large rewards in money and they were not disappointed. We may assume also that their minds were affected by that pride of opinion and that kind of mental fascination with which men are affected when engaged in the pursuit of what they call scientific inquiries. There is no proof whatever to corroborate Jones upon the most vital fact to which he testified and that was that he purchased chloroform and administered it to the deceased at the command and request of the defendant. The evidence of corroboration is directed entirely to other matters which seem to me to be largely collateral. He is corroborated as to the numerous forgeries with which he and the defendant were connected, and which, it is claimed, furnish the motive for killing the deceased. But corroboration of the informer as to things that furnish motive and as to collateral facts, does not meet the difficulty of the absence of all proof that he was advised or requested by the defendant to administer chloroform to the deceased. In all cases of death by poisoning it *Page 187 is of the utmost importance that traces of the poison be found, by chemical analysis, to exist in the body of the deceased. In the present case no trace of poison by irritant gas or otherwise was found by a chemical analysis or in any other way in the body of Rice, and the real foundation for the contention that chloroform was the cause of death, aside from the testimony of Jones, rests upon the alleged congestion of the lungs.
I intend to cast no reflections upon any one. All I mean to say is what every reasonable man has the right to say, and that is that a judgment of conviction in a capital case that rests upon such an uncertain and frail foundation and is affected with such dangerous and suspicious elements of doubt should be subjected to the most rigid scrutiny and not permitted to stand, unless every rule of law that could have been of any advantage to the accused was observed at the trial. My objection to the judgment in this case is that the accused has not had a fair and impartial trial. I am aware that I have no right to say that unless the assertion can be sustained by facts and arguments that must appeal, not only to the judgment and common sense of the bench and the bar, but to every fair mind, whether lawyer or layman, who has a proper respect for the orderly administration of justice, and intelligence enough to discern the significance of the facts and the force of the argument.
I hope to be able to meet all the burden in that regard that I have assumed and I will not deal much with generalities, but with specific questions, stating the law and the facts involved in the several questions as they appear to me and as they are found in the record. Nor do I propose to deal with any questions that have not been raised by exceptions. While exceptions are not necessary to raise any question in this court fairly disclosed by the record in a capital case, I prefer to confine myself to those questions plainly presented and deliberately decided. In my opinion, the rules of evidence in criminal cases were ignored or violated at the trial to the prejudice of the accused. Nothing can be of more importance to a party on trial for a criminal charge than the observance of *Page 188 these rules and this court, as will be shown hereafter, has steadily refused to relax them. The principles of the law of evidence that govern all criminal trials are, as Lord ERSKINE once observed, "founded in the charities of religion, in the philosophy of nature, in the truths of history and in the experience of common life." (24 Howell's St. Tr. 966.) And that remark has been fully approved and liberally quoted by modern authorities on that branch of the law.
1. Among the numerous conferences between Jones, the accomplice and informer, and the public prosecutor, at least one of them is very significant. Jones had then given at least three different and conflicting statements concerning the manner in which the death of Rice was produced, some, if not all of them, under oath. These statements purport to detail the circumstances of the homicide, the parties concerned and the cause of death. They were not satisfactory and he was told, in substance, that no statement would be accepted from him unless it could be corroborated. In these conferences there was doubtless a good deal said that savored of casuistry, and it is evident that on both sides words were used to conceal thoughts, but the learned district attorney laid down one principle, and that was, that the truth was always consistent and could always be corroborated. It would perhaps have been more correct to say that truth, as such, never needs corroboration. It is something that is either false in fact or in the eye of the law that needs corroboration. The sun needs no exterior aid in diffusing light and heat over the world. But whatever Jones understood by the remark he set to work to comply with the suggestion. He was aided by his private counsel, who was at all times persona grata at the office of the district attorney. It took a long time between them all to construct the statement, and it was not until several months after the homicide that it was ready to submit to the grand jury in the form that we now have it in the record. The corroboration of Jones seems to have been, as it certainly was, a vexatious question that was always uppermost in the mind of the public prosecutor, and hence many novel and ingenious *Page 189 methods were adopted for that purpose at the trial. One of the methods thus adopted was to prove by Jones himself that while in jail he had made an unsuccessful attempt to commit suicide.
The foundation for this evidence was a claim on the part of the People that the defendant and the accomplice, when in jail, had formed a conspiracy to commit suicide. It was, of course, a novel application of the law of conspiracy, but it was thought to be a sound proposition that a conspiracy between these two persons to commit suicide after the homicide proved in some way an antecedent conspiracy to kill Rice. The People proved by the accomplice, who was evidently ready to testify to anything, that there was some talk between himself and the defendant in regard to suicide, and then the scene was opened by the following question propounded by the People to the accomplice: "What did you do to yourself in furtherance of the common purpose?" The witness then proceeded to relate the details of his unsuccessful attempt, which consisted, as he said, of the attempt to cut his throat with a knife. The stabs and gashes that he made with the knife seemed to have been carefully noted, and he fixes the number at about a dozen. Even the knife was produced and handed by the district attorney to the jury with the remark, "Let them look at it while the blood is on it." It was more than a year from the date of this alleged attempt at self-destruction to the enactment of the scene in the court room. Where the knife had been in the meantime, or who had it in charge does not appear, but it must have been very carefully preserved if the jury could, without any evidence except their own senses, have seen the blood upon it.
Whether this attempt at suicide was real or feigned no one, of course, can tell except the informer himself. It is quite certain, however, that the immediate results were that he regained his liberty, since he was taken to the hospital and there carefully nursed, and subsequently to the boarding house I have mentioned, where he had the freedom of the city, so to speak, and after the trial departed for his old home. *Page 190
Of course the accomplice could not corroborate himself by any act, statement, admission or device of his own. We have seen already how the learned district attorney impressed upon his mind the importance of corroboration, and if the accomplice, situated as he was, could corroborate himself by any feigned or unsuccessful attempt at suicide, this would practically abolish the statute which enacts that no conviction is possible upon the uncorroborated testimony of the accomplice. The scene to which I have referred was throughout a spectacular performance more suitable to the stage than to the gravity of a court engaged in the judicial investigation of a charge upon the result of which a human life depended. If Jones had succeeded in the attempt, and the district attorney had brought his dead body into the court room and presented it to the jury, that, I think, would shock not only all our notions of law, but our sense of decency as well. And yet, what was actually done differed from that only in degree. The principle of law applicable to this question has been often stated in this court in a few weighty words, that, however familiar, I will venture to quote. "It is a well-established principle that illegal evidence which has a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of jurors in any degree, cannot be considered as harmless." (People v. Corey, 148 N.Y. 489.) That is the rule even in civil cases (Hutchings v. Hutchings,98 N.Y. 65; Anderson v. R., W. O.R.R. Co., 54 id. 334); then how much more the necessity for enforcing it in such a case as the one at bar.
An ancient orator once stirred up the populace to a flood of rage and mutiny in an oration over the dead body of a great man, whom he described as his friend and the people's friend. He stimulated them to the most desperate deeds of violence, which ended in a revolution that in a political sense changed the face of the world, and resulted, according to the irony of fate, in the undoing and death of the orator who started the conflagration. His was a real case of suicide. If the orator of antiquity could thus have moved men's minds, *Page 191 who can doubt that the modern orator who tried this case made a great impression upon the minds of the jury, since human nature is the same in all ages, as he pointed to the gaping self-inflicted wounds of his witness and flourished the bloody knife with which they were inflicted, as the surest pledge of his sincerity and the highest proof of his devotion to the cause of truth? When the jury retired to consider their verdict they must have reasoned among themselves and said one to the other something like this: "Surely a witness who has thus courted death and the grave must be telling the truth and ought to be believed."
It is said that the aphorism, suicide is confession, applies to this strange feature of the case, but this only reveals a very strange confusion of thought. Confession by whom and of what things? Certainly not by the defendant; but if at all, by the informer, it may be to procure sympathy as a victim or credit as a witness. It was certainly assumed that it would give him both in the mind of the jury; otherwise, the scene would not have been enacted.
2. The question whether Rice died a natural death or from the use of chloroform feloniously administered was one of the most important questions involved in the case. It has already been shown that the People attempted to meet that issue by the testimony of the two physicians who made the autopsy, and made so little of the appearance of the lungs that they cast them aside to be cremated with the body, while the other vital organs were delivered to a chemist for analysis. It is quite obvious, of course, that upon this issue the defendant had the right to call experts to prove the cause of death or the value in determining that question of such congestion of the lungs as the physicians were able to recall long after they had made the autopsy. This was such an important question to the defendant that he ought not to have been restricted or hampered in the production of his evidence. On this issue the defendant called Dr. Lee. He testified that he was a surgeon and physician of twenty years' practice; that he attended President McKinley in his last illness, and that *Page 192 he had administered chloroform thousands of times. The defendant's counsel then propounded to him a hypothetical question, which appears in the record, and which is too long to be quoted here. It assumed, however, all the facts in the case, or at least the facts that the defendant had a right to assume. Among other things it assumed the case of a man eighty-four years of age, and that prior to his death and for several months he had been suffering with dropsy of the lower limbs and that the post-mortem examination revealed a congestion of the lungs — slight congestion that was not exactly co-extensive, and some other things that are not material here, and then concluded the question with the words, "What, Doctor, would you say was the cause of death?" This question was excluded by the court upon the sole ground that, in framing it, the defendant's counsel had used the words "that the post-mortem examination revealed a congestion of the lungs — slight congestion that was not exactly co-extensive to use that word." It was contended that the coroner's physician who had testified to the appearances at the autopsy had not used any such expression; but in this the learned court was evidently mistaken, since the record shows just what Dr. Donlin, one of the coroner's physicians, testified to: "Q. Then as I understand it you mean to say that the congestion was co-extensive with the lung? A. No, not co-extensive exactly." It is very obvious that the defendant was prevented by the ruling of the court from presenting to the jury the opinion of an eminent expert on a vital question, which was, the cause of death as evidenced by the congested condition of the lungs. The hypothetical question to the expert witness is proper, although it may include only a portion of the facts in evidence, and it may assume any state of facts which there is some evidence to sustain and the opinion of the expert may be taken upon the facts so assumed. An error in the assumption does not make the interrogatory objectionable if it is within the possible or probable range of the evidence. A counsel may even assume the facts in accordance with his theory of them. It is not essential *Page 193 that he state the facts as they exist or as they were described by the witnesses of the opposing party. (Cole v. Fall BrookCoal Co., 159 N.Y. 59; Stearns v. Field, 90 N.Y. 640;Cowley v. People, 83 N.Y. 464; Dilleber v. Home L. Ins.Co., 87 N.Y. 79.) In framing the hypothetical question it is very clear that the defendant's counsel had a right to view the facts in the most favorable light for his client. If Dr. Donlin or any of the People's experts testified both ways or their statements were ambiguous the counsel had the right in framing the question to the most favorable view for his client. That this ruling was a plain error upon a vital issue in the case seems very clear to me. It is difficult to understand why any court in the trial of a capital case should exclude the testimony of an expert for the defense upon such a narrow criticism as was adopted in this case.
3. It cannot be too often repeated that aside from Jones the two most important witnesses for the People were the two coroner's physicians who made the autopsy. Neither in their official report nor in their certificate as to the cause of death or in any of the numerous proceedings before police magistrates or otherwise, which involved an inquiry as to that fact, did they pretend that they had discovered any proof of poison by chloroform as the cause of death until several months after the autopsy when Jones had completed his final story to the effect that he himself had killed the deceased with chloroform. The physicians then began to educate themselves by experiments and otherwise to sustain this theory as witnesses. When on the stand they not only supported that theory as experts, but claimed that they had discovered indications of chloroform poisoning at the autopsy in the congested condition of the lungs. It was, therefore, of the first importance to the defendant to impeach or contradict these two witnesses if he could by showing that at or just after the close of the autopsy they had publicly stated the result of their examination and that it was inconsistent with or contradictory of their statements as witnesses on the stand.
This was just what the defendant's counsel attempted to *Page 194 do, but was prevented by a ruling of the court. After the close of the People's case the defendant's counsel called a witness who had been an attendant at the morgue and was present at the autopsy and heard what was said. We know from an affidavit of this witness, which is in the record and was used upon the motion for a new trial on the ground of newly-discovered evidence, just what the defendant's counsel sought to prove by him. It was this, that just after the autopsy Dr. Donlin, who participated in it, stated to several persons present in the room, some of whom were newspaper reporters, that Rice died of old age and that the other physician who was present and heard the statement assented to it. This testimony, it is perceived, would go far to impeach or greatly discredit the two most important witnesses for the People in the case. There are authorities that hold in effect that inasmuch as the People had put into the case the written report of the autopsy, an official act, the statements at the time of the public officers who made it, were admissible as part of theres gestæ and as original evidence. The statement sought to be proved by the witness did not contradict, but tended to sustain the certificate. But whatever the law may be on that point, the evidence offered was clearly admissible to impeach the People's witnesses, and a proper foundation for that purpose was laid in the cross-examination of Dr. Donlin. He testified that after the autopsy there might have been "a number of reporters. I do not recall it. I might have stated to them what the result of the autopsy was. I am in the habit of doing it." The defendant's counsel then propounded the following question to the witness: "And did you not say that he died from old age?" The witness, after stating that he did not recall any such statement, that he could not have said it, finally answered, "I did not say that."
Now, we have the question put to the witness that pointed out to him the time and place and the occasion, but we are gravely told that it did not point out the person to whom the statement was made, although it appears that it was made in a room to a crowd, including reporters, and was not addressed to *Page 195 any one in particular. I had always supposed that a person who makes statements to an audience in a public speech and who afterwards, as a witness, denies that he made them, might be contradicted by any one who was present and heard the statements when they become material.
The defendant's witness, after testifying that he was present at the autopsy assisting the two physicians, detailed the many things that he did in the operation, and after stating that he heard Dr. Donlin make a statement as to the result of the autopsy, was asked the following question: "Did Dr. Donlin in that statement made there say that `the old man's time had come and he died from old age and that is all you can make of it,' or words to that effect?" The court sustained the People's objection to this question, on the ground that Dr. Donlin's attention was not called upon his cross-examination to the time or place of the alleged statement, or to the person to whom it was made. It was virtually held that unless the defendant's counsel could find the man upon whom Dr. Donlin's eye rested when he made the statement the question was improper. The defendant's counsel then modified the question and asked whether Dr. Donlin did, at the morgue on the occasion of the autopsy, "in your presence and hearing say that `the old man died of old age' or words to that effect?" The court promptly ruled out the question, and, defendant's counsel still persisting, requested the court to be allowed or permitted to recall Dr. Donlin to the end that he might propound to him a question that could comply with the views of the court with reference to the form of a question sufficient as a basis for impeachment. The court refused to allow the witness to be recalled, although he was a salaried public officer who had received large fees for assisting in working up the case for the People.
Thus the defendant was deprived of the benefit of very important testimony by a series of rulings that have not even the doubtful merit of being styled technical, since, in my judgment, they are absolutely and radically wrong. They are all based upon the notion that it was necessary to name *Page 196 the man to whom the statement was made, when it was a public statement made to no one in particular and when the doctor swore that he did not make it at all. If these rulings were made in a police court on a trial for sheep stealing I am not sure that any appellate court would ever think of sustaining them, but they were made on a trial for murder, upon the result of which the defendant's right to live depends.
4. The genuineness of a great number of documents, too numerous to mention, became an important question at the trial. They were all claimed by the People to be forgeries and spurious. They tended to prove no doubt that if spurious the defendant and the accomplice had been engaged in the preparation of spurious documents with the view of getting possession of the estate of the deceased. In and of themselves it was claimed that they furnished a motive for the commission of the crime of murder; but forgery and murder are two different offenses and the accused might have been guilty of the former without being guilty of the latter. The most important of these alleged spurious documents was an instrument which purported to be the last will of the deceased. It had been denied probate in the civil courts and was the subject of a mass of testimony at the trial of this case. The proof as to handwriting proceeded not only from a number of experts, but from other witnesses who claimed to be familiar with the handwriting of Rice and with his genuine signature.
Among the witnesses called and who gave testimony upon this issue was a young man named Cohn, who testified that he was about 30 years of age; that he had formerly been in the employ of the deceased for a few years as a clerk in Texas and was at the time of the trial in the employ of the Rice Institute, founded by the deceased, at a salary of $100 per month, and also in the employ of Captain Baker and the other executors of the Rice estate at an additional salary of $50 per month. All the persons mentioned were interested in the civil litigation to destroy the paper purporting to be the last will of the deceased, since that would result in an *Page 197 adjudication that the will bearing date sometime before was the genuine will of the deceased and which contained provisions in their favor. This witness testified that the various documents in question were forgeries. It appeared upon cross-examination that he was a brother-in-law of one of the trustees of the institute; that he had discussed the subject-matter of the two wills, one dated in 1896, and the other in 1900; that his present employers, that is, Captain Baker and his brother-in-law, were both engaged in contesting the disputed will, that before he came to New York to testify he had heard that Captain Baker had testified that in his opinion the signatures in question were not genuine. He also stated that he had examined these signatures a whole morning before he ventured an opinion to the district attorney; that he had heard Captain Baker testify before he had passed upon the signatures; that he was at the time stopping at the hotel where the people who were interested in the first will were also guests. He admitted that before he made his first examination of the disputed signatures he had read in the papers that some so-called handwriting experts had given it as their opinion that these signatures were not genuine signatures of the deceased. All this testimony was entirely legitimate. In other words, the cross-examination of this witness disclosed the fact that all the time he had been surrounded by influences hostile to the defendant and that would be likely to warp his judgment and stimulate his private interests. These things greatly affected the value of his opinion as a witness. The defendant had the right to have these facts submitted to the jury. The learned district attorney, perceiving that the testimony of this witness had been greatly weakened by the cross-examination, took him in hand again and thoroughly toned him up in the following fashion: By showing that the witness, while being educated or persuaded by the parties with whom he had conferred, as to the opinion he had expressed, had heard from other parties who were entirely disinterested precisely the same thing. This was accomplished by two comprehensive questions that deserve to be stated in *Page 198 the words of the record. The first question was: "Did you also know that about 25 paying tellers in no way connected with the case had expressed their opinion that all these instruments were forgeries?" He answered that he had. Not quite satisfied with this question, he propounded another to the witness, which is as follows: "Did you also know that every human being that you knew who knew Mr. Rice's handwriting had expressed the opinion that they were forgeries?" The witness answered the question in the affirmative, and the court ruled, after argument, that the questions and answers were proper. It will be seen from what has thus been stated that the learned district attorney in a very adroit way got before the jury the opinion of about 25 paying tellers in no way connected with the case, and also the opinion of every human being that the witness knew who had any knowledge of the handwriting of the deceased. The learned court, after argument, pronounced this testimony competent for the jury.
That these questions and answers were grossly improper and plainly incompetent no one can doubt. The errors that I have thus far called attention to are not only radical, material and prejudicial, but they have a much broader and deeper significance, since they cast a dark shadow over the whole trial, revealing the true spirit in which it was conducted. They serve to give color to the atmosphere that surrounded the defendant, and show with unerring certainty that a fair and impartial trial was scarcely possible, since these rulings could not have been made upon the trial if any effect had been given to the presumption of innocence, or that other and kindred rule that all questions where there is a reasonable doubt should be decided, not in favor of the People, but of the defendant.
5. Expert testimony fills a large place in the enormous record in this case. We have seen that that kind of testimony in these times costs money. In the marshalling and production of such testimony the People have an enormous advantage over the accused. The public prosecutor is not hampered *Page 199 or restricted by any considerations of economy. The state, with all its power, is behind him, and he is able to pay extravagant rewards to experts that may, by opinions or speculations, be able to sustain the charge, as witnesses on the stand. Not so with the accused. He is generally, if not always, without means to purchase this class of testimony. That must be true in this case, since the learned counsel who have argued the case at our bar find the primary motive for the defendant to engage in the series of crimes that have been imputed to him, the purpose or desire of escaping the pinches of poverty. In the face of such conditions, if the defendant was able to induce a few eminent men to become witnesses in his behalf and to spend a portion of their time in the court room, he ought not to have been hampered or restricted by any narrow rules in placing their opinions before the jury. They, at least, had no motive to pervert truth. Neither the public prosecutor by objections, nor the court by rulings, should have excluded anything that such witnesses could testify to that had any bearing on the vital issue involved. Without referring to experts on the question of handwriting, the only question within the scope of medical experts was a very narrow, and it would seem to the common mind a very simple one.
The sole question upon which medical experts could throw any light was the question as to the significance of the congested state of the lungs of the deceased as proof that his death was produced by chloroform. If that was as plain a question as the learned counsel for the People assume it to be, we might ask why it was that it cost the two salaried officials who made the autopsy a year's time and one hundred and forty experiments, besides much study and reflection, in order to find out whether that condition of the lungs proved with reasonable certainty that Rice died from the application of chloroform. Of course, these experiments could have nothing to do with the question of fact whether the lungs were congested, and if so, to what extent. The People's two principal experts took the lungs from the body, *Page 200 and it was their duty to know whether they were or were not congested, and, if so, to what extent. They either knew what the condition of the lungs was, as matter of fact, or they did not. In any event, their subsequent study and experiments could throw no light on the question as to what was the real condition of the lungs as they appeared at the autopsy, and the only occasion for the use of medical experts in this case was to show that the condition in which the lungs were found at the autopsy was, under the circumstances of the case, reasonably certain proof that death resulted from chloroform; so that the condition of the lungs, as described by the officials who made the autopsy, was either reasonably certain proof that Rice died from the effects of chloroform or that it presented a doubtful and disputed question; and clearly the defendant had the right to offer any proof that contradicted the opinion in that regard of the People's experts or that could throw any light upon the question.
For this purpose the defendant called Dr. Millican, who testified that he was the associate editor of the New YorkMedical Journal and a graduate from the Royal College of Surgeons of England and the Royal College of Physicians of Edinburgh; that he had been a surgeon in various hospitals in England and that he had made considerable study of death from chloroform; that in the course of his general studies he had studied three hundred and ten reports of autopsies found in various medical journals in Great Britain, France and Italy. He was then asked to state in how many of the autopsies that he had studied was there found a congestion of the lungs. This question was excluded. He was then asked in how many of the three hundred and ten reported cases that he had studied was there reported active congestion of the lungs. This question was also excluded. He then proceeded to state that he had searched through nineteen of the principal text books on therapeutics, but that testimony was also excluded. The defendant's counsel then propounded to him the following hypothetical question, which was excluded: "Now, Doctor, assuming that a cone or a towel is wrapped *Page 201 cone-shaped by wrapping the towel around the hand and then a sponge is placed in the small end of the cone and saturated with two ounces of chloroform, the cone thus saturated is placed over the face of the sleeping patient; state whether in your opinion the operation that I have described could be accomplished without waking the patient?" If it was proper to permit the People's experts to express an opinion as to the cause of death from the appearance of the lungs and from their experiments upon birds and animals, I am utterly unable to see why this witness could not be permitted to express a like opinion from the wide studies that he had made upon the same question. If he could say that in the reported autopsies where death resulted from chloroform, there was no congestion of the lungs in half or in any of them, certainly that would go far to weaken the People's theory that the congested condition of the lungs of Rice disclosed by the autopsy was reasonably certain proof that he died from the effects of chloroform. Knowledge derived from a wide study of medical books or journals devoted to the science of medicine must throw light on such a narrow question as this case presented. If that is not so, it is difficult to perceive what value there is at all in such opinions. Medical knowledge is acquired in very much the same way as legal knowledge, that is, from the study of books. It often becomes necessary in litigations to prove what the law of some other state or country is with respect to some particular question, and that is generally proved as a question of fact by calling as witnesses lawyers who have practiced in the courts and have read upon the subject. It seems quite plain to me that if the lawyer had testified that he had read and studied say one hundred reported cases on the question, that fact would be admissible as a basis for his opinion as to what the law was on the disputed point. What distinction there is in this respect between a lawyer and a physician, each attempting to testify to knowledge derived from professional studies, I am not able to perceive.
The ruling excluding the question as to the effect of the cone upon the sleeping patient was equally, if not more *Page 202 plainly, erroneous. The People claimed that they had supported by evidence the proposition that the operation described would not only produce death in the twinkling of an eye, but that it actually did produce the death of Rice. That theory would be shaken very much if it could be shown that the operation, instead of producing instantaneous death, would awaken the sleeper, and that was precisely what the defendant attempted to prove by the question which was excluded. If Rice was alive at the time that Jones placed the cone upon his face, then death must have been produced literally in the twinkling of an eye. The truth of that story all depends upon the testimony of the accomplice and certainly the evidence in that regard was not so conclusive, or even probable, as to warrant the exclusion of the testimony referred to.
The defendant's counsel having failed to get the proof that he offered before the jury called Dr. Girdner, who testified that he was a physician and surgeon of twenty-four years' experience and a graduate of the University of the City of New York. He stated that he had written on chloroform a great deal and had made a number of experiments with chloroform as to its effects upon the human system; that he had made experiments upon patients and attempted by the use of chloroform to transfer them from the natural sleep into a chloroform sleep; that he had performed thirty-two of these experiments upon sleeping patients. He was then asked to state whether in his opinion the odor of chloroform could be detected in a room three-quarters of an hour after it had been administered. This question was excluded. It is perfectly plain from the testimony of this witness that he was speaking of the facts in this case as disclosed by the testimony of Jones and that of the physicians at the autopsy. He was then asked to state about what are the chances of death from inhalation of chloroform and about how frequently death will follow the administration of that drug to a patient. These questions were excluded. He was then asked to state for how long a time, in his opinion, after an operation had been performed *Page 203 upon a patient in a room the odor of chloroform would remain therein. This question was also excluded. In view of the conceded fact in the case that no odor of chloroform was found in the room by the attending physician of the deceased, who arrived twenty minutes after the cone had been removed, and in view of the further fact that the claim of the People was that the condition of the lungs proved with reasonable certainty that the death of Rice was produced by the operation which Jones described and that was the real and sole cause of death, it is very difficult to see what legal or reasonable ground there was for refusing to permit the witness to answer these questions. It seems to me that the questions were in proper form and pertinent to the issue; but even if they were not and ought to have been framed in some different way the humane rules of the criminal law would dictate to the public prosecutor and the court the duty of suggesting in what respect the questions were defective. It seems to me, therefore, that the ruling of the court excluding the evidence referred to was clearly erroneous and prejudicial.
6. Another method of corroborating Jones and sustaining the charge in the indictment adopted by the People was to give proof of alleged confessions or admissions of the defendant claimed to have been made by him while in jail. Much of this testimony came from the accomplice, who had also been arrested and confined with the defendant on the same charge Many damaging things were embraced in these admissions or confessions, which, if made at all, were clearly under the seal of professional confidence, which, as I think, was violated utterly in the manner which must now be related.
The People called a lawyer named Potts and examined him at great length touching these admissions. His testimony occupies about one hundred pages of the record. He testified that he was a lawyer and that he and the defendant occupied a common office or suite of rooms and the names of the two were on the door. He testified that at the very time *Page 204 when he was on the stand he regarded himself as having professional relations with the defendant which had never been severed; that these relations commenced immediately after the death of Rice, but he could not fix the precise date with certainty. There can, however, be no doubt that such relations were created and existed. The court took the witness in hand and examined him on that subject and fixed the date of the retainer as early as the 28th of September, that is, four days after the death of Rice, although it is obvious that, considering the intimacy that existed between the witness and the accused, relations of confidence existed a long time before. He stated that he first knew the accused in Texas as early as 1870; that since the accused came to New York their relations were close, as the two lived at one time in the same house. There were at least two other young men who as stenographers or notaries occupied rooms in the suite in which the defendant's office was. Two of these young men were arrested after they had given testimony in favor of the defendant upon some preliminary examination. It is quite evident that Potts had been terrorized by what had taken place and feared that he might share the same fate. It is only necessary to read the one hundred pages of testimony that this witness gave in order to perceive the various devices that were used to drag from the witness admissions and confessions of the most dangerous character which it was claimed the defendant had made to him. These instances are too numerous to mention. The court, after examining the witness, ruled that the testimony was not admissible, but afterwards he changed this ruling and decided that the statements were admissible unless it affirmatively appeared that the admissions were made after the retainer. The district attorney then proceeded to prove by the witness statements and admissions that he said the defendant made to him of the utmost importance. As to many of these statements the witness stated that he could not tell whether they were made to him before or after the retainer, but they were all admitted upon the principle stated which put the burden upon the *Page 205 defendant to prove that they had been made after the retainer and not before. After the jury had heard the confessions, such proof by the defendant when the time for his defense arrived, it may be weeks after the objectionable testimony had done its work with the jury, would obviously be utterly worthless. Moreover, the nature of the testimony given indicated very clearly that the admissions were made under the seal of professional confidence. This testimony was all received under a theory of law manifestly unsound. The true rule is that when professional relations have been once shown, and there is doubt whether the admissions were made before or after the commencement of these relations, or when the witness cannot fix the date, as in this case, the testimony must be excluded. The principle adopted in this case would not afford the least protection to the client against the violation of professional confidence by his own counsel. All that would be necessary, upon the theory adopted in this case, would be for the counsel to forget or misrepresent the date of the retainer, and thus while pretending, as Potts did, to observe in a perfunctory way his professional duty, the spirit and substance of the rule could be violated with impunity. With respect to the testimony now under consideration, it is perfectly obvious that the witness was compelled or volunteered to state admissions to him after the date of the retainer, but the whole examination discloses, as I think, a total disregard of the rules of law that govern the relation of attorney and client. In a well-considered case, in which this question was discussed and decided, it was held that where the witness was unable to distinctly state whether the admissions were made to him as counsel or before that relation commenced, the evidence must be excluded. The court added that whatever may be the rule in civil actions in that regard, testimony of this character ought not to be admitted in criminal prosecutions. (People v. Atkinson, 40 Cal. 284.) The same principle was held in the case of Bacon v. Frisbie (80 N.Y. 394), where it is held that any statements or admissions which may be supposed to have been drawn out in consequence of the *Page 206 relations of the parties to each other are entitled to protection as privileged communications.
But there was another incident that occurred at the trial that was even worse than the one referred to. The defendant and the accomplice were both confined in the same room in the jail. They employed the same counsel to act for both of them. This counsel and his assistant, who was also a lawyer, visited and had conferences with both clients at their room in the jail. At one of these conferences the counsel and both clients were present. No one else was. When the accomplice was on the stand he told the jury what took place at the conference, and what was said by each and all of them, but after argument, in which court and counsel joined, the court concluded that the testimony was not admissible and struck it out after the jury had heard it. But the learned district attorney was not to be foiled by any such ruling, since he at once was enabled to prove by Jones that some of the most damaging admissions were made to him by the accused when they were both in the corner of the room and when the counsel was some distance from them in another part of the room, and he said that they talked in such a low tone that they could not be heard by the lawyer. Of course there was no attempt to corroborate either as to the admissions or the particular spot in the room where they were made. This testimony gave a new aspect to the question in the judgment of the court and the district attorney, and the examination proceeded on the notion that all that was said by the defendant could be proved providing Jones could swear that the lawyer did not hear it. Jones then was permitted to testify to the most damaging kind of statements which he claimed the defendant had made to him while in the corner of the room occupied by the three persons engaged in the conference, and that after making these admissions the three came together again. It is important to observe that these statements, claimed to have been made in the corner, were not stricken out at all. That what occurred at this interview and all that occurred there was privileged and could not be disclosed by Jones against the *Page 207 protest of the defendant it seems to me no one can doubt. The privilege did not depend upon any such shallow pretense that it was not heard by the lawyer. The privilege rests upon the nature of the conference, the occasion and the purpose and subject-matter of the interview, and whether any of the parties failed to hear what the others said was not a matter of any consequence. Indeed, according to Jones, the two clients while in the corner were consulting as to the answers to be made to some questions which their counsel had put to them, and after some conversation in the presence of the lawyer, who had turned aside, they all resumed the conference. It seems to me to be absurd to contend that where two clients have a common counsel or attorney and are together in his office for the purpose of advice and consultation between them all, and something is said between the two clients while the lawyer has stepped into the next room, that one of the clients could disclose the statement thus made without the consent of the other. In such a case the privilege would not apply in a subsequent litigation between the two clients, but it does apply where the subsequent litigation is between one of them and a stranger. (Hurlburt v. Hurlburt, 128 N.Y. 424; Root v. Wright, 84 id. 72.)
But even if the court had stricken out everything that had taken place at this conference and everything to which Potts testified, the error would not and could not have been cured under the recent decisions of this court. The jury heard the testimony and under the circumstances of this case they cannot be presumed to know what became of it, since nothing was said about it in the charge. The jury retired to consider their verdict two months after the perfunctory ruling of the court striking out some and leaving in the record the worst part of the testimony. The jury may not have understood at the end of the argument and in the heat of the trial just what significance the ruling of the judge had, and it cannot be presumed that they either understood or remembered what became of this evidence.
The case of Ives v. Ellis (169 N.Y. 85) is the latest *Page 208 authority on this question. In that case a letter was offered in evidence which, it was said, contained hearsay statements made by a third party. It never seemed to me that it was of any importance on the trial one way or the other. It appeared that the trial judge charged the jury in regard to this letter in the following words: "I desire particularly to caution you to disregard entirely in your deliberations the contents of the letter written by Mr. Ellis to Mr. Ives in response to the latter's inquiry. That letter was admitted solely for the purpose of proving its receipt by Mr. Ives and not to bring before you any of the matters therein contained." Notwithstanding that caution, this court reversed the judgment on the sole ground that the error had not been cured. In the opinion of the court we find the following words: "But before an appellate court will hold that such an error has been cured, it must feel sure that the effort of the trial court to correct the error was necessarily effective with the minds of the jury. Now, that cannot be said of the caution of the court in this instance, for it must be borne in mind that this letter was introduced in the early part of the trial, which was not only a long one, but in its progress there was an adjournment for a period of ten days, during which the jurors presumably had their minds occupied with affairs of their own." Judge LANDON, who wrote a concurring opinion, was quite as clear and specific, and his words ought to be quoted: "The letter being hearsay and incompetent upon the real question, but from its very terms being one which the jury would regard as pertinent to it, they would naturally treat the judge's attempt to exclude its contents from their consideration as a perfunctory instruction, given in pursuance of some technical rule, unless the instructions to disregard it should be so clear and explicit as not only to amount to a command but to a fair counterpoise to their natural convictions. * * * Notwithstanding what the trial judge said, the jury would find it hard to go counter to their own convictions."
The contrast between the two cases cannot fail to strike *Page 209 the mind. In the civil case referred to the jury retired to consider their verdict with the strong and clear words of the judge commanding them to disregard the letter ringing in their ears, and yet the judgment in that case was reversed upon the sole ground that the error had not been cured. In the capital case at bar the jury retired to consider their verdict two months after the perfunctory ruling of the judge, which purported to strike out a portion of the objectionable testimony in the midst and in the confusion of a trial, and not a word of caution was given to them in the charge with respect to this most objectionable evidence, and yet it is now contended that the errors in admitting the evidence have been cured. Is there anything about this case that requires us to put such a strain upon law and argument? If so, what is it? It is, I think, quite unnecessary to extend the discussion upon such a plain question. It may be added, however, that the trial of this case commenced January 22 and ended on April 7, 1902.
7. The People produced and put in evidence what purported to be a typewritten letter signed by Rice and addressed to the defendant, to the effect that after his death his desire was that his body should be cremated. In this paper he referred favorably to Col. Ingersoll and Col. Waring, whose bodies had also been cremated. The public prosecutor claimed and gave proof tending to show that the signature of the deceased to this paper was a forgery. It was not claimed that the signature was in the handwriting of the defendant. The purpose of introducing this paper was to show that it was concocted by the defendant as an excuse or authority for the prompt cremation of the body of the deceased in order that the alleged poisoning might not be discovered. Whether the signature of the deceased to this paper was genuine or forged became an important question in the case. Anything that the deceased had said in conformity with the sentiments expressed in that letter was admissible as bearing upon the probability of its genuineness, and the defense was not limited to the narrow question of the genuineness of the mere signature, *Page 210 but should have been permitted to show that the sentiments contained in the letter were those expressed by the deceased and those which he would have been likely to have written.
The defendant's counsel called a witness who testified that he was a lawyer in the employ of the Manhattan Railway Company for ten years; that he was acquainted with the deceased for over thirty years; that the deceased was an old friend of the witness' father; that they were together in Texas when they were boys, and that the deceased and the witness' father were associated in business; that he was intimately acquainted with the deceased and had visited his house on an average during the last few years once every two weeks; that he was not acquainted with any of the defendant's counsel who were named, that he had drawn a few years before a codicil to the will of the deceased; that he had a conversation with him in the summer of 1900, but could not fix the particular date. The witness was then asked the following question: "Mr. Adams, in that conversation that you say you had with Mr. Rice in the summer of 1900, did he tell you that he had made arrangements for cremating his body?" The court refused to permit the witness to answer the question. If the deceased actually entertained, up to the time of his death, the sentiments in regard to the disposition of his body after death that were expressed in the letter, it seems to me that the question was competent. We must assume that the answer of the witness would be most favorable to the defendant, and the question is whether, there being a dispute in regard to the genuineness of the signature, the defendant did not have the right to show that the paper expressed the sentiments of the deceased on the question of cremation entertained by him in his lifetime. This evidence, of course, would not be conclusive, and it may be that it was not evidence of the highest character, but it had some bearing on the probabilities of the case. It is reasonable to suppose that a person who all his lifetime expressed a desire to have his body cremated, would express that desire in some formal way before *Page 211 his death, to the end that his wishes might be carried out. Let us suppose the case of the will of a deceased person, which is attacked after his death on the ground that he never signed it, but that his signature attached thereto is a forgery. There is no question about the intention of the testator in regard to the disposition of his property as expressed in the will, but the sole question is whether his signature is genuine or forged. Now, it seems to me, that the contestants in such a case would be permitted to prove that the testator on various occasions down to the time of his death had declared that he intended not to make a will and would never make one. It seems to me that such testimony would throw light on the disputed question whether the signature was genuine or spurious. In Chase's Stephen's Digest of the Law of Evidence (at page 99) it is stated that the declarations of the testator are admissible as evidence when his will has been lost, and when there is a question as to what were its contents, and when the question is whether an existing will is genuine or was improperly obtained, and when the question is whether any and which of more existing documents than one constituted his will, and in all these cases it is said that it is immaterial whether the declarations were made before or after the making or loss of the will. These propositions, it seems to me, are well sustained by judicial authority. (Matter of Hesdra, 119 N.Y. 615; TaylorWill Case, 10 Abb. Pr. [N.S.] 300.)
If this rule of evidence is applicable to a will, where the genuineness of the signature is in dispute, I am unable to perceive why it is not equally applicable to an informal paper which purports to give directions regarding, or makes disposition of one's remains after death. So, it seems to me, that the defendant had the right to have this testimony submitted to the jury for what it was worth, and even if the question was doubtful the ruling should have been in favor of the defendant and not the People.
8. The defendant called a young man as a witness in his behalf named Short, who testified that on the 30th day of June preceding *Page 212 the death of Rice he, with another young man named Meyers, was present with Rice in his apartments. The testimony of this witness disclosed the fact that he with Meyers had been frequently at the apartments of the deceased and there executed papers that he said Rice had signed in his presence on various occasions. He identified two papers in particular which purported to have been executed on the 30th day of June preceding the death of Rice. One of these papers was the disputed will and the witness testified that he and Meyers with the deceased were present in a room in the apartment and that Rice there in their presence signed these instruments and requested both of them to become subscribing witnesses, and they signed their names as such. There does not seem to have been any dispute about the fact that the signatures of these two young men to the disputed papers were their genuine handwriting, nor was there much dispute about the fact that both of them had been present on various occasions in the apartments of Rice and there participated in the execution of papers as witnesses or as acknowledging officers. The witness was subjected to a long cross-examination, in the course of which various rulings were made by the court, and I will refer to only one of them. In the course of this examination the district attorney said to the witness, "You have been under arrest in this case for perjury, haven't you?" This question being objected to the court ruled that the district attorney might show the interest of the witness in the case, since that had a bearing on his credibility. I am unable to find in the record any specific answer to the question, but it is quite evident that the fact of the arrest was assumed from the form of the question and from what the court said in reply to the objection. How the arrest could show any interest of the witness in the case on trial it is difficult to perceive. It has been held by this court that such a question is incompetent and improper, and ground for reversal. (People v. Brown, 72 N.Y. 571; People v. Crapo, 76 N.Y. 288. ) The form of the question amounted virtually to a statement to the jury by the district *Page 213 attorney, with the approval of the court, that the witness had been arrested for perjury. On the redirect examination the witness stated to the defendant's counsel that upon giving testimony in the preliminary examination before Judge Jerome he was arrested before the hearing was completed. He was then asked how soon after he had been called as a witness for the People on that hearing was the arrest made. The answer to this question was excluded. He was then asked how soon after he had finished his testimony in that hearing that he was arrested. Now, since the court had permitted the district attorney, under objection, to show that the witness had been arrested it was competent for the defendant to show the time and circumstances of the arrest. It was competent to show, if it could be shown, that the arrest was made without cause and in bad faith for the very purpose of destroying him as a witness to the will and as a witness for the defendant generally, and that process had to begin at some point. It seems that he was not arrested until after he had given testimony which was supposed to be adverse to the parties that were interested in destroying the will and adverse to the People on the preliminary examination. When the attempt had been made to affect his credibility by showing merely an arrest, the time, place and circumstances of the arrest would tend to explain the purpose for which it was made. It appeared that the witness was a friend and associate of the witness Potts, referred to in a previous part of this opinion, and it is evident enough that Potts had taken warning from the fate of Short and Meyers and made his peace with the prosecution. The refusal of the court to permit this witness to explain when, where and all the circumstances attending the arrest was error. While this error, if it stood alone, might be overlooked, it only shows the tendency of the court to confine the defendant's proof within the narrowest limits, while the district attorney was permitted to question the witness about a great variety of things that had no possible bearing on the case.
The material for further discussion of the rulings made at *Page 214 the trial has not been exhausted by any means. There are numerous other questions raised by exceptions to be found buried in this record of twelve thousand folios that are quite as serious and harmful as those that have been pointed out, but to pursue the discussion would be simply extending an opinion already too long. The questions that have been discussed may differ from each other in importance as one star differs from another, but the trail of error is over them all. If what has been said cannot affect the judgment in this case it is useless to go on piling Pelion upon Ossa. It is admitted on all sides that this record presents legal errors, and the only answer made is that they are not serious enough to affect the judgment and that they may be overlooked under the provisions of section 542 of the Code; but these errors cannot find shelter under this statute, since this court has spoken upon that question with no uncertain sound. Here are the words of the court in discussing the scope and application of that statute (People v. Corey, 148 N.Y. 494):
"This statute in no way impairs or affects the previously well-established principle that the rejection of competent and material evidence, or the reception of incompetent and improper evidence, which is harmful to a defendant and excepted to, presents an error requiring reversal. Such a ruling affects a substantial right of a defendant even though the appellate court would, with the rejected evidence before it, or with the improper evidence excluded, still come to the same conclusion reached by the jury. The defendant has the right to insist that material and legal evidence offered by him shall be received and submitted to the jury, and to have illegal and improper evidence, which may be harmful, excluded, and to have the opinion of the jury taken upon proper evidence admitted in the case and upon such evidence only. (People v. Wood, 126 N.Y. 249; People v. Greenwall,108 N.Y. 296.) As was said by EARL, J., in the latter case: `A person on trial for his life is entitled to all the advantages which the laws give him, and among them is the right to have his case submitted to an impartial jury upon *Page 215 competent evidence'" This rule as to the application of § 542 was repeated and unanimously approved by this court in People v.Strait (154 N.Y. 165) and still later in the case of People v. Montgomery (176 N.Y. 219).
I have not been moved by the assertion, which was given much emphasis upon the argument, that this defendant is guilty. All we know or can know in a legal or judicial sense is that the jury have found him guilty, and this court can add nothing to the legal force or effect of that verdict by expressing any opinion about it. The question is whether the verdict is affected by legal error, and if it is, it is our solemn duty to set it aside. The duty of this court in such a case is to "hew to the line, let the chips fall where they may." Lord MANSFIELD said on a memorable occasion that wherever he had the honor to sit as judge, neither royal favor nor popular applause would protect the guilty. Pursuing the same line of thought, I may be permitted to say that, as a member of this court, neither popular opinion as to this case, if such there be, nor any amount of specious or sophistical argument will induce me to assent to a conviction in any capital case, however guilty the accused may be thought to be, unless he has had a fair and impartial trial according to the law of the land. Such a trial does not consist in the mere observance of form and ceremony, but in the recognition and practical application of the rules of law which this court has so often announced. We are deciding cases at almost every term and reversing convictions for errors of law that do not compare in importance with those that I have attempted to point out. Indeed, it can be safely asserted that in all the records of this court no case can be found where a conviction for a capital offense has been sustained in the face of such objections as this case presents. I am aware that that is a broad statement but I have no fear that it can be questioned.
I can see no reason for making this case an exception. Murder is murder and a very wicked crime in every case and under all circumstances; but I can see no distinction between this case, where the defendant has been found guilty of *Page 216 advising another to administer chloroform to a rich old man living on a fashionable avenue in New York, and any other defendant who shoots or poisons his wife, or with his own hand slays the poorest beggar in the land. A legal error in this case must be treated in the same way as a legal error in any other criminal case. The law is no respecter of persons whether living or dead. The position of the victim of crime, whether rich or poor, has not the weight of a feather in the administration of the criminal law.
This court has always in such cases as this dealt with questions of law and when errors have been disclosed by the record has reversed judgments of conviction without much regard to the question of guilt or innocence. It has always recognized the rule that there cannot be a fair and impartial trial, within the true meaning of those terms, unless the accused has had the benefit and advantage of every principle of law that could aid him in sustaining his defense, and it has held, whenever the claim was made that errors were not harmful, that the burden of showing that they were not, by any possibility, does not rest upon the accused, but the People must show that such evidence was harmless and could not have prejudiced him. (People v. Smith,172 N.Y. 210.) In People v. Taylor (177 N.Y. 237) a married woman was convicted of the murder of her husband by shooting him with a pistol. She chopped off his head and some of his limbs and burnt them in a stove. She also burnt the rest of the body. The burnt flesh and bones were found in a heap of manure at the barn and identified. The case presented a frightful example of human depravity, and yet this court reversed the conviction, Judge GRAY writing the opinion, on the ground that evidence of previous threats and assaults made by the deceased had been excluded. It was held that such evidence was admissible upon the question whether the homicide was justifiable as having been committed in self-defense. In People v. Mull (167 N.Y. 247) we reversed a conviction in a capital case, Judge LANDON writing the opinion, on the ground that the district attorney in summing up the case appealed to the jury *Page 217 on the ground that an acquittal in such a plain case would expose them to the hostile criticism of the community. In People v.Bonier (179 N.Y. 315) we reversed a conviction on the ground that it was error in law to refuse to charge that the presumption which arises as to defendant's good character both from the failure to attack it as well as the testimony given, may of itself be sufficient to raise a reasonable doubt as to the defendant's guilt. In People v. Smith (172 N.Y. 210) this court reversed the judgment of conviction in a case where the defendant was convicted of murdering his wife, and the reversal was upon the grounds stated in the opinion.
These precedents in this court might be multiplied indefinitely, and be it remembered that in none of them was there a shadow of doubt as to the corpus delicti, or as to the author of the crime, and the errors assigned for the reversal were, in my opinion, insignificant in comparison with the catalogue of errors that the record in the case at bar discloses. It is not necessary to extend the discussion. I will only remark that, guided by the light of the decisions of this court, I have fairly met and discharged, in my view, the burden which I assumed at the outset of the discussion.
The judgment should be reversed and a new trial granted.