I vote for a reversal of this judgment on the ground that the court erred in receiving the testimony of Doctor Douglass to the effect that Barnet stated to him in his *Page 340 last illness that he had received a box of Kutnow powder through the mail. The declarations of Barnet under the circumstances disclosed by the physician were not competent to show that Barnet received Kutnow powder through the mails. As the fact thus sought to be established was one of vast importance, the exception taken to the admission of the testimony requires a reversal of the judgment.
I dissent from that part of the prevailing opinion which, in effect, holds that had the fact been established by competent evidence that Barnet had taken a dose of Kutnow powder containing cyanide of mercury which he had received through the mails, nevertheless the evidence tending to show that the defendant mailed that Kutnow powder to him is inadmissible on the trial of the defendant for the killing of Mrs. Adams.
Of course it is not admissible unless it tends to prove that Molineux is responsible for the death of Mrs. Adams. If it does tend to prove such responsibility, then it is admissible, although the facts proved establish that the defendant committed another crime. It is often carelessly said that the People cannot upon trial under an indictment prove facts showing that the defendant committed another crime, a statement which is incorrect without the addition of the qualification: Unless the facts establishing the other crime also tend to establish the commission by defendant of the crime for which he is being tried.
There is no controversy in this court — nor out of it — so far as I know, touching the general rule that evidence of the commission by him of other crimes is not admissible upon the trial of a defendant charged with crime. It is only on rare occasions that proof of the commission of another crime by a defendant is either necessary or helpful toward establishing the crime with which he is charged. Hence the evidence is ordinarily irrelevant, while at the same time its admission would necessarily operate to so prejudice a jury against a defendant as that in a doubtful case it might control the verdict. Therefore the courts long ago decided that a defendant should not be prejudiced by the admission of evidence of other *Page 341 crimes committed by him which in no wise tends to establish that he committed the crime for whose commission he is on trial. But it has never been held by any court of responsible authority that the People cannot prove the facts constituting another crime, when those facts also tend to establish that the defendant committed the crime for which he is on trial. Such a holding would accomplish the absurd result of permitting a rule intended to prevent a defendant from being prejudiced in the eyes of the jury because of his life of crime to so operate in certain cases as to prevent the People from proving the facts necessary to convict him of the crime charged. The interests of justice, which require alike the conviction of the guilty and the acquittal of the innocent, make it the duty of courts to preserve this rule in its entirety, for by it a defendant will be protected from the prejudice resulting from the evidence of other unrelated crimes committed by him, while the People will not be prevented from proving the facts of another and related crime which tend to establish the commission by the defendant of the crime charged.
There are many cases both in England and in this country where the People were permitted to prove the commission of another crime by defendant, because it tended to prove him guilty of the one for which he was standing trial. Among them may be found the following: People v. Place (157 N.Y. 585); People v. VanTassel (156 N.Y. 561); People v. McLaughlin (150 N.Y. 365,386); People v. McClure (148 N.Y. 95); People v. Harris (136 N.Y. 443); People v. Murphy (135 N.Y. 451); People v.Dimick (107 N.Y. 13, 32); People v. Everhardt (104 N.Y. 591) ; Pontius v. People (82 N.Y. 339); Hope v. People (83 N.Y. 418); Mayer v. People (80 N.Y. 364); Pierson v.People (79 N.Y. 424); Coleman v. People (58 N.Y. 555);Copperman v. People (56 N.Y. 591); People v. Zucker (20 App. Div. 363; affd., 154 N.Y. 770); Stout v. People (4 Park. Crim. Rep. 132); Hawes v. State (88 Ala. 37); People v.Otto (4 N.Y. Crim. Rep. 149); People v. Wood (3 Park. Crim. Rep. 681); Commonwealth v. Jackson (132 Mass. 16);Commonwealth v. *Page 342 Bigelow (8 Metc. 235); Commonwealth v. Stone (4 Metc. 43);Helm's Case (1 City Hall Rec. 46); Smith's Case (1 City Hall Rec. 49); Coffey's Cases (4 City Hall Rec. 52); Dougherty'sCase (4 City Hall Rec. 166); Commonwealth v. Johnson (133 Pa. St. 293); Commonwealth v. Russell (156 Mass. 196); Reg. v. Colclough (15 Cox Crim. Cases, 92); Regina v. Garner andWife (3 Foster Finl. 681); Regina v. Cotton (12 Cox Crim. Cases, 400); Regina v. Geering (18 L.J. Mag. Cas. 215);Regina v. Heesom (14 Cox Crim. Cas. 40); Makin v.Atty.-Genl. (17 Cox Crim. Cas. 704); Regina v. Roden (12 Cox Crim. Cas. 630); Regina v. Flannagan (15 Cox Crim. Cas. 403); Goersen v. Commonwealth (99 Pa. St. 388); People v.Seaman (107 Mich. 348); Hester v. Commonwealth (85 Pa. St. 139); Kramer v. Commonwealth (87 Pa. St. 301); Brown v.Commonwealth (76 Pa. St. 319); People v. Foley (64 Mich. 148) ; People v. Rogers (71 Cal. 565); Commonwealth v.Choate (105 Mass. 451); Rex v. Clewes (4 Car. Payne, 221); Commonwealth v. McCarthy (119 Mass. 354);Commonwealth v. Miller (3 Cush. 244).
It is unnecessary to refer to these cases in detail, as it is sufficient for my present purpose to say that each one of them presents a case in which proof of the facts tending to show the commission of another crime by the defendant on trial was admitted for the purpose of aiding in establishing the fact that he committed the offense charged. Indeed, no one denies that this has often happened, nor questions that in the future it will and should happen again and again; but instead it is said in effect that this case is not within the rule as interpreted by those cases. In other words, that the facts of this case do not bring it within the exceptions — so called — created by those cases. The argument proceeds upon the assumption that the exceptions are not to be added to; but that as large a number had been created when this trial began as should be tolerated, instead of treating these decisions as establishing the principle that the facts of another crime may be proved by the People whenever their tendency is to prove the commission of the crime charged. *Page 343
Horton on Criminal Evidence (9th ed. § 48); Underhill on Evidence (§ 58); Abbott's Trial Brief — Criminal Causes — (§ 598), are cited in support of the statement that "Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial." This list of exceptions has been extended in terms in some of the opinions in the cases cited (supra), but it is of sufficient length for the purposes of this discussion. The argument then proceeds with an attempt to show that evidence authorizing a finding that Molineux killed Barnet is not within any of the exceptions, and, hence, it is assumed that it is not competent. I think the real test in such cases is: Does the evidence of the other crime fairly aid in establishing the commission by defendant of the crime for which he is being tried? And that test, and none other, is fairly established by the authorities.
It is conceded that cases have arisen where another crime was permitted to be proved for the purpose of establishing a motive for the crime for whose commission defendant is on trial — just that and nothing more. Motive is an important element, it is true, in certain cases, but it is only one element, and yet if it is necessary to establish that the defendant had a motive in committing the crime charged, proof of another crime may be permitted for that purpose. Intent is another essential element which must be made out before there can be a conviction for a crime, and, if the commission of another crime by a defendant tends to establish a guilty intent on his part in the case on trial, the other crime may be proved. So, if a defendant claims that the killing was due to mistake or accident, the facts of another crime may be proved by the People if those facts tend to show that there was neither mistaken nor accident on the part of the defendant. Other cases may be found where evidence of another crime has been *Page 344 received simply because it tended to identify the person on trial. Judge PECKHAM, in People v. Sharp (107 N.Y. 427, 468), refers to "a class of cases in which the facts show the commission of two crimes and that the individual who committed the other crime also committed the one for which the defendant is on trial. Evidence is then permitted to show that the defendant was the person who committed the other crime, because in so doing, under the circumstances and from the connection of the defendant with the other crime, the evidence of his guilt of such other crime is direct evidence of his guilt of the crime for which he is on trial." In People v. Murphy (135 N.Y. 451) the evidence of another offense was held admissible because it had been shown to be "a part of the same criminal scheme" as the main offense.
An examination of the cases cited (supra) discloses still other situations in which the proof of another offense has been sanctioned, and those cases show that almost every element essential to a conviction for crime either has been established or the evidence tending to prove it has been supported and strengthened by proof of the commission of another crime by the same party. In not one of those cases is it suggested that there is any element of a crime that may not be proved in that way, and this court long ago distinctly laid down the rule, as it seems to be established by the authorities generally, as follows: "Evidence tending to prove any fact constituting an element of a crime charged in an indictment is competent, although it may tend to prove the prisoner guilty of some other crime." (Weed v.People, 56 N.Y. 628.) And this conclusion has been followed in this court recently, in three cases by expression quite as comprehensive. In People v. Van Tassel (156 N.Y. 561, 565), where it is said: "Evidence of other transactions, otherwise material or relevant, is not inadmissible merely because it tends to prove another crime;" and in People v. Place (157 N.Y. 585,598), where the court carefully stated the rule in its entirety in two sentences, as follows: "It is an elementary principle of law that the commission of one crime is not admissible in evidence *Page 345 upon the trial for another, where its sole purpose is to show that the defendant has been guilty of other crimes, and would, consequently, be more liable to commit the offense charged. But if the evidence is material and relevant to the issue, it is not inadmissible because it tends to establish the defendant's guilt of a crime other than the one charged;" and People v.McLaughlin (150 N.Y. 365, 386) is to the same effect. Here we have a broad and comprehensive test — one that looks toward justice: Do the facts constituting the other crime actually tend to establish one or several elements of the crime charged? If so, they may be proved. Measured by this test it was competent for the People to show that Barnet came to his death through cyanide of mercury contained in a dose of Kutnow powder taken from a box received by him through the mails, in view of the facts and circumstances proved tending strongly to show that one mind conceived and one hand executed all of the details of both crimes.
But I shall not discuss the evidence from that point of view, for it is my purpose to attempt to show that even if we assume the contention to be sound that the People can prove facts constituting another crime only when they are within one of the exceptions enumerated, the Barnet evidence is clearly within the fifth enumerated exception in that it tends to establish "the identity of the person charged with the commission of the crime on trial." There are features of the evidence that bear upon two of the other exceptions, but for the sake of brevity only the one named will be considered.
In the prevailing opinion, after a preliminary discussion of the facts relating to the death of Mrs. Adams, it is said: "The next and final step in the case of the prosecution would have been to prove the defendant's connection with the handwriting of the address upon the poison package." This done, it is conceded that a prima facie case would have been established on the part of the People. Evidence to that effect was given by three lay witnesses and also by a number of handwriting experts. But the People were not obliged to stop there. If there were other evidence tending *Page 346 to show that the defendant sent the poison package to Cornish, it was the duty of the prosecuting officer to present it to the court and the jury. Of course no one saw the person who sent the package mail it and, aside from the proof of the handwriting, resort had necessarily to be had to circumstantial evidence to prove who was the sender.
The package sent to Cornish contained a bromo seltzer bottle filled with bromo seltzer in which had been put cyanide of mercury, and Mrs. Adams on taking a dose from that bottle for sick headache obtained such a quantity of cyanide of mercury as to lose her life. Cornish also took a small dose but it did not prove fatal. Cyanide of mercury is a rare and unusual poison, not kept on sale by druggists generally as strychnine and many other poisons are, and the books of the medical and chemical professions record only five cases, prior to these, of death by that poison. Dr. Phillips, a physician who was called to see Cornish, suspected that he had taken cyanide of mercury because of the similarity between the symptoms displayed by him and those exhibited by Barnet, whom he had treated a little over a month previous. The fact that an attempt had been made upon the lives of two persons within so brief a period by this rare and unusual poison naturally suggested to those whose duty to the state it was to find the murderer if possible that it would quite likely appear that one person sent both packages. The autopsies showed that both Barnet and Mrs. Adams died from that poison, and in the Kutnow powder of which Barnet told his physician he had partaken was found cyanide of mercury.
On May 27th, 1898, a letter box was hired from one Heckman in the name of H.C. Barnet. Barnet did not rent it, and Heckman positively identified the defendant Molineux as the man who did rent it and gave his name as H.C. Barnet. To that letter box was sent, among other things, patent medicines, to which other reference will be presently made. Some one in the name of Barnet wrote to the Marston Remedy Company a letter inclosing five dollars with a request that he be sent one month's treatment for impotency, and the address *Page 347 of the letter box which Molineux had rented in the name of Barnet was given. In reply the Marston Remedy Company sent a blank diagnosis sheet, addressed to H.C. Barnet at that private letter box as requested, with directions that the questions thereon be answered. The author of the answers to the questions in that diagnosis blank gave the following description of himself: (1) single man; (2) thirty-one years of age; (3) chest measurement thirty-seven inches; (4) waist measurement thirty-two inches; (5) there had been consumption in his family; (6) business sedentary; (7) contemplating matrimony; (8) eyes and complexion "yellowish;" (9) seeking treatment for impotency. This in no respect described the real H.C. Barnet, who was a large man weighing one hundred and eighty pounds, but according to the People's evidence it described Molineux with perfect accuracy. He was single; was thirty-one years of age in the very month the letter was written; his tailor had measured him less than two months before and testified his chest measurement was thirty-seven inches and his waist measurement thirty-two inches; the death certificate of his maternal grandmother showed that she died of consumption; his business was sedentary; he was contemplating matrimony; the jury had an opportunity to observe his eyes and complexion, which the People contend are "yellowish," and he was seeking a remedy for impotency, for on June 1st, 1898, Molineux wrote a letter to Dr. James Burns, signing his own name, inclosing twenty-five cents and directing that a remedy be sent to his Newark address. Both the letter and the envelepe were put in evidence, and it was shown that the remedy was for impotency. There was also evidence that the diagnosis blank was in the handwriting of the defendant, and it needs no argument to support an assertion that the jury had the right to find from all this evidence that Molineux was the man who used this letter box and used the name of Barnet for his own purposes. According to the claim of the People, then, Molineux positively identified himself as the renter of the letter box and the seeker after remedies *Page 348 for impotency in the Barnet case, and Heckman identified him as positively.
The identity of Molineux in the Barnet case being established, the People were at liberty to show that the facts and circumstances in the Barnet case and the Cornish case were of such a character that they must necessarily have resulted from the action of a single mind. To have shown that would necessarily have identified the defendant as the criminal actor in the attempt to poison Cornish. It turned out that before the attempt to poison Cornish was made some one hired a private letter box in his name, and, as in the Barnet case, it was not hired by Cornish, nor for him. Now, while Molineux personally hired the box in Barnet's name at Heckman's, he did not personally hire the box at Koch's, at 1620 Broadway, which was hired in Cornish's name. But it seems that Koch, in addition to renting private letter boxes to persons who had personal and confidential correspondence which they wished to keep out of the regular channels of their mail matter, sent out a publication called the "Studio," and on December 31st, 1897, about a year before the death of Mrs. Adams, Molineux wrote a letter to "Editor `Studio,'" in which he asked for a copy of the paper. About six months later Koch sent Molineux some circulars relating to his business and one of them described his private letter boxes. Between December 12th and 17th, 1898, Molineux called on Koch at his place of business and talked about the letter boxes, but said he was not prepared to make an arrangement for one as he only called for a friend. A few days later and on December 21st another man called and rented a box in the name of H. Cornish, but Koch testified when Cornish stood up in court that he — Cornish — was not the man who rented the box.
After the hiring of the box some one wrote for Kutnow powders in the name of H. Cornish and directed that they be sent to the letter box at 1620 Broadway which the stranger had hired, and the letter was written on the same kind of blue paper, with a tri-crescent emblem at the top, as Molineux used in his letter to Dr. James Burns on June 1st asking for a *Page 349 remedy for impotency. The Kutnow powders were sent to 1620 Broadway in pursuance of the request, but by mistake were placed in the wrong box. A letter was also written on the blue stationery with the tri-crescent emblem as in the other cases to Von Mohl Company, of Cincinnati, requesting a five days' trial of their remedy for impotency, the address given being 1620 Broadway. This letter was not written by Cornish. "Calthos" was the name of the remedy of Von Mohl Company and a box of it was sent to H. Cornish at 1620 Broadway. Some person other than Cornish, but in his name, sent a letter, also written on blue paper with the tri-crescent emblem as in the other instances referred to, to Frederick Stearns Company, of Detroit, Michigan, concerning one A.A. Harpster, in which the address of H. Cornish was given as 1620 Broadway. I shall not refer further to the Harpster incident, which is one of considerable importance as disclosed by the record, other than to say in passing that Harpster was a great friend of Cornish, and had taken sides with him in Cornish's controversy with Molineux, thus arousing the enmity of Molineux, who took other steps looking to his injury beside writing the letter referred to asking for confidential information in relation to Harpster from his former employers, if he did write it.
Cornish received through the mails a bottle of bromo seltzer containing cyanide of mercury, a dose of which resulted in the death of Mrs. Adams. Molineux was a chemist and a manufacturer of dry colors, and kept large quantities of prussian blue and other dry colors from which cyanide of mercury can be made. Three lay witnesses, who were familiar with the handwriting of Molineux, testified that the letters signed "H. Cornish," to which reference has been made, as well as the Barnet letters and the answers in the diagnosis blank, were in the handwriting of Molineux. And the testimony of a number of prominent experts in handwriting is to the same effect. But aside from that testimony there is to be gleaned from the letters themselves and the circumstances surrounding and attending their writing very strong evidence that one *Page 350 brain conceived and carried out both schemes. In each case the letter box was hired in the name of the intended victim; in each, remedies for impotency were written for in the name of the intended victim; both the Cornish and the Barnet letters were undated; both series of letters, as well as the address on the poison package, contained misspelled words; in each case a rare poison — cyanide of mercury — was employed; in both cases the mails were used to convey the poison to the intended victims; in both cases samples of Kutnow powder were written for, and were received at both boxes; Calthos, a remedy for impotency, was also received at both boxes; Barnet and Cornish were members of the same club, and the poison sent to each was contained in a simple headache remedy in ordinary use. These facts and circumstances standing wholly uncontradicted and unexplained, as they do in this record, force the mind almost irresistibly to the conclusion that the same man desired the death of both Barnet and Cornish and plotted and worked to accomplish it. Certainly a jury are at liberty to draw that inference, and if they do the conclusion will necessarily follow that Molineux was the criminal actor in the Cornish case, because he was positively identified as the actor in the Barnet case both by the testimony of Heckman and by Molineux's description of himself in the diagnosis blank.
The evidence in the Barnet case, therefore, tends to identify Molineux as the sender of the poison package in the Cornish case, thus supporting the evidence of the lay and expert witnesses who testified that the address on the poison package sent to Cornish was in the handwriting of Molineux. The Barnet evidence, therefore, is strictly within one of the exceptions referred to in the prevailing opinion. It is said in People v. Dimick (107 N.Y. 13, 32) that the People have the right, when it is material, to give proof of the facts constituting another crime and have it submitted to the jury under proper instructions, although such proof may be inconclusive, and if this view of a unanimous court in that case should be followed the Barnet evidence would be competent, although *Page 351 direct proof of the sending of the Kutnow powders through the mails should not be made out on the retrial.
This argument, however, has proceeded on the assumption that, in order to justify the retention of the evidence relating to the Barnet crime, it is necessary to establish every element relating thereto, which necessarily includes the receipt by Barnet of Kutnow powders through the mails. Hearsay evidence to that effect was admitted by the court and its admission was error, but we cannot assume that on the new trial which is about to be ordered the People will not be able to establish that fact by competent evidence, and great care should be taken not to close the door against such evidence, if it exists, for that justice which the safety of society requires and the law demands has not as yet been meted out to the murderer of Mrs. Adams.