The prisoner was indicted for wrongfully attempting to obtain public moneys from the county of Albany by presenting an account to the board of supervisors of said county purporting to be for the burial and taking charge of the bodies of persons who were dead, which account was verified by an affidavit stating that the items of the account were correct and that no part thereof had been paid or satisfied. Among other items was a charge for the burial or taking care of the body of one Edward Kilburn, which was claimed to be fraudulent, upon the ground that the prisoner had agreed with one Edmond J. Creidge, who had been a fellow workman with the deceased, that the entire cost of the coffin and other expenses of the burial should be twenty-four dollars, which sum had been paid by Creidge from moneys which were raised by subscription to pay such expenses; Creidge testified that prior to the arrangement with the accused he had made a bargain with one Arnold *Page 588 to perform the same service, but being informed that it was the wish of the widow of the deceased that he should employ Bragle, he did so in the place of Arnold.
The accused claimed and swore that he had made no such bargain with Creidge as he Creidge testified to; that he took charge of the body at the request of the widow of the deceased, and that the sum paid to him by Creidge was for the coffin only, and that extra care was required, for which the charge was made and presented. Upon the trial Arnold was called and sworn as a witness for the people, and upon being recalled by the accused the following question was put to him by the counsel for Bragle: "Do you remember the price of the coffin you were to furnish"? This was objected to by the prosecution as irrelevant and immaterial, the objection sustained, and an exception taken by the prisoner's counsel. It is claimed by the counsel for the accused that it was proper to prove by Arnold that Creidge had agreed with Arnold to pay him thirty-four dollars for a coffin only, and that such coffin was of less value than the one which the accused had furnished. No such distinct offer was made, although there was proof tending to show that Arnold had charged thirty-four dollars for the coffin alone, and it is perhaps fairly to be inferred that the object of the evidence was to show that the price paid the accused was very moderate, and hence the evidence offered bore upon the question whether the agreement had actually been made, and the credibility of the evidence introduced by the prosecution to establish such agreement. We are of the opinion that the testimony was too remote and related to a separate and distinct transaction which had no connection with the arrangement made with the accused, and was properly excluded. The question as to the value of the coffin which Arnold was to furnish was not in issue. Whether it was more or less could not affect the real question on trial, which was whether the accused had unlawfully and in violation of the statute charged and attempted to obtain from the county an item in his account which had been provided for by agreement and which he could not lawfully charge against the county. *Page 589
If the charge for the burial and taking care of the body of the deceased was within the contract made with the accused, the price agreed to be paid to Arnold could have no bearing whatever upon the case. One of the grounds of dismissing Arnold and employing Bragle was that the coffin Arnold furnished was a miserable one, and that the price charged for the same was enormous and extravagant. It was not shown that the coffins were of the same kind, and proof showing that the one furnished by Arnold was of more value than that furnished by Bragle would have been irrelevant.
A comparison of the two would be of no consequence, as the facts were different in reference to each one. The question litigated was not as to the value of the two or the value of the services rendered, but as to the right to make any claim against the county. No light would be thrown upon this question by the evidence offered, nor would it aid the accused upon the question as to his knowledge whether the claim was unjust.
As bearing upon the question as to the admissibility of such evidence which has been considered, see Green v. Disbrow (56 N.Y. 334); Canaday v. Krum (83 id. 67, and authorities cited at pages 73 and 74).
The claim made that there was error by reason of the absence of the accused during a portion of the trial is not sustained. The accused wished to communicate by telephone with a witness and started to leave the room. The district attorney objected, but he left the room and was absent for a period of five minutes, and his counsel continued the cross-examination of a witness in the meantime. The telephone was in an ante-room fifteen or twenty feet from the judge's bench, which was connected with the court-room by swinging doors, which are not shown to have been closed at the time. The accused was close by within call and could have been notified at once. No new witness was called, and no evidence taken that it was important for him to hear. His absence was a voluntary one at his own request, for his own benefit, and we may assume essential for the protection of his rights. The place was really a part of the court-room, and connected with it as a *Page 590 matter of convenience if not necessity. Under such circumstances it would require a very rigid construction to hold that the rights of the accused had been invaded or the law violated.
The statute (3 R.S., § 18 [6th ed.], 1029), which declares that no person shall be tried for a felony unless personally present during the trial, was evidently meant for the protection of the prisoner, and a substantial performance was all which was required. To say that it was violated when the prisoner was actually at hand in a part of or immediately near the room where the trial was in progress is scarcely warranted by the facts, and would be going far beyond any reported case in this State. None of the cases relied upon go to any such extent, and a real absence was an important feature of the trial in each of them. (People v. Perkins, 1 Wend. 91; Maurer v. The People,43 N.Y. 1.) In the last case cited a very broad rule is laid down, but the facts were of a character which fully justified the rule stated and the decision of the court. The indictment was for murder, and sometime after the jury had retired, and about midnight they returned into court and asked for additional instructions from the court, which were given accordingly. The prisoner was not in the court-room and it does not appear that he was near by, or where he was, or for what period of time the court were engaged in again instructing the jury. It was a very material part of the trial and it is easy to see how the rights of the prisoner might be affected by such a proceeding. The statute would be of no force if it could not be held applicable to such a case, and the case must be regarded in view of the strong facts and evidence presented. Far different, however, is the case where he merely enters a room which is an appendage of the court-room for purposes relating to the trial and directly within the precincts and under the control of the court.
It is further contended that the judge erred in his charge where he stated the offense to be a misdemeanor. No exception was taken to this part of the charge, and it was not mentioned until after the jury had rendered their verdict, and then a motion was made to set aside the verdict upon this ground, *Page 591 which was denied. The case shows that after this an exception was taken to this portion of the charge where the word "misdemeanor" is used. Had the exception been made before the jury had retired the judge would have had an opportunity to correct the charge, and after this it would seem to have been too late to raise this question. It is not claimed that the exception thus made was in due season, but although it was late it is insisted that the same strict rule will not be enforced in criminal cases, and the court will look at the substance of the point urged, having in view the promotion of justice. Assuming this to be true, still we are unable to perceive that any injury was inflicted upon the accused by the supposed error. Both counsel had stated to the jury the punishment which might result from a conviction, and it is not a legitimate conclusion that the jury would give any less consideration to the case under these circumstances than if they had been advised that the accused was on trial for a felony.
There was no error on the trial, and the conviction and judgment should be affirmed.
All concur, except TRACY, J., dissenting, and RAPALLO, J., not voting.
Judgment affirmed.