We think the evidence in this case was not sufficient to support a verdict of guilty. '
The defendant was indicted for the crime of “ embracery,” for having influenced or attempted to influence the action of one Weed, who at the time had been drawn, but had not been summoned, as a grand juror, in respect to a charge against one Chamberlain, which it was supposed would be investigated by a grand jury of which Weed was to be a member.
The evidence interpreted most unfavorably to the defendant is to the effect that on the 5th day of February, 1898, a few days before the grand jury was to convene, the defendant, who had been looking for him, met Weed upon one of the streets of the village of Clyde; that the defendant said : “ Hello, Weed; I understand you are a grand juror; I want to have a little talk with you; you have probably heard of the cemetery case.” The defendant then spoke of its being cold, and in fact it was an unpleasant day, and Weed then said, “ Let us go into Mr. Sand’s store.” They went to a room in the back part of the store, the door of which remained open, and *176defendant' again spoke of the cemetery case; said there was a sort of spite against Dr. Chamberlain; said that it was a case .that would probably come before the next grand jury, but that there was nothing in ib; said that such a case, it seemed to him, should not come before the grand jury, for it simply made expense for the county. He also spoke of a woman who was supposed‘to be connected with the case, and said she was a prostitute. '
This is substantially all the conversation that was had'in-regard to the case, or in respect to the grand jury. Nothing was said as to what Weed should dó or what he should not do, or what the defendant desired in the premises. Weed, who was the only witness called by the People who testified as to what occurred, said he never suspected that the' defendant was attempting to influence his action as a grand juror in any manner whatever, and that the conversation did not have any influence upon him; that it did not last to exceed five minutes, and possibly not to exceed two, and that after that they talked about other things. He said he never thought of the conversation until he was asked in the grand jury room by the district attorney if any one. had talked to him about the case. Weed testified: “ He (the defendant) didn’t dwell at all upon this Chamberlain case, or go into the facts of it; he did not undertake to tell me how the thing had happened; * * * he did not say anything to me directly as-to whether he wished I would do this one of the other thing with the case, and at the time of the conversation I was not impressed in any way that he was trying to influence my action by what he said. * * * Q. Did y.ou regard it as a talk calculated to draw your attention' to the case and have you look at it carefully ? A. That was just my opinion exactly. Q. That you thought he wanted to call your attention to it? A. Tes; the little I did think of it. * * * Q. At that time you didn’t get the impression that he wanted you to act apart from your own conscientious convictions on hearing the testi mony in the case? * * * A. No. * A * Q. But whether he said it was a case that shouldn’t go .before the grand jury, do you recollect about that ? A. No; I don’t. * A * Whether he said directly that he didn’t think it was a case that properly should go before the grand jury 1'won’t say; this assertion that he made that it was a matter of spite is the single sentence that 1 recollect distinctly. * * * Q. Did'he say anything: in that. conversation *177to you as to whether you should vote for or against Dr. Chamberlain in the grand jury ? A. No.”
It cannot be pretended that the defendant in fact influenced the action of Weed as a grand juror in the slightest degree. Weed testified that he did not, and there is no fact or circumstance disclosed by the evidence which in any manner contradicts his statement. It does not even appear that Weed did not vote for the indictment against Dr. Chamberlain, which was in fact found by that grand jury. The petit jury then must have found that the defendant “ attempted ” to influence Weed. Does the evidence support such a finding ?
It appears that at the time Weed was a man sixty-seven years of age, and had resided in the county of Wayne, three miles from the village of Clyde, during that entire time; he was a farmer, a man of good character, of prominence in the county, and had known the defendant personally for about thirty-five years. Whenever they met, which was very frequently, it was their habit to stop and talk. Mr. Weed had learned from the newspapers precisely what the defendant informed him, to wit, that Dr. Chamberlain’s case was coming before the grand jury. He had read about the cemetery case and Dr. Chamberlain’s connection with it. He was a man of education, a man accustomed to read a great deal; had frequently acted as a grand and petit juror; had been assessor of his town for two or three terms, a road commissioner and a candidate for member of assembly. It clearly appears that Mr. Weed was a substantial citizen, a man with views of his own, and a man who would not be likely to be influenced by casual remarks of the character made to him by the defendant.
It also appears that the defendant at the time was sixty-one years of age. He had lived in the county over forty years; was a man of large acquaintance; had been sheriff of the county, and, as appears by the evidence of a large number of witnesses, his reputation and standing in the community was good. Weed testified, as we have seen, that it never entered his mind that the defendant was attempting to influence his action as a grand juror or in respect to Dr. Chamberlain’s case; that he had no thought of such a thing; *178that the conversation which occurred between them, whatever the precise words used may have been, did not convey to him such an idea, or impression, and the defendant testified that he did not attempt to influence Weed and had no thought of so doing.
The jury by their verdict have found, notwithstanding the testimony of the two pai'ticipants in that conversation, that such was the purpose of the defendant,, and that he did make such an attempt.
■ We think the language used, construed most unfavorably to the defendant, when considered in connection with all the circumstances, was not sufficient to overcome the positive testimony of the defendant that he did not attempt to influence the action of Weed, especially when taken in connection with the fact that Weed himself swears that it was not of such a character as led him to mistrust that the defendant intended or was seeking to exercise any influence over him.
The fair interpretation of the language used by the defendant is: Weed, the cemetery case is coming before the grand jury; there is a good deal of spite against Dr. Chamberlain; investigate the case carefully, for the county ought not to be put to the expense of investigating cases brought simply for spite. That is the interpretation put upon the language by Weed,- as testified to by him; that was the meaning intended by the defendant, as testified to by him in effect. The People urge, notwithstanding, that the language shows the defendant was attempting to influence the action of Weed, although they must admit that the attempt: was so feeble, if made, that Weed did not know it or. mistrust it.
If such casual conversation had with a “ juror,” “ arbitrator ” or “ referee,” under the circumstances' disclosed by the evidence in this case, may be made the basis of a criminal prosecution, the courts of this State from now on need never lack for business,, and a very large number of citizens heretofore supposed to be law-abiding, have been or are liable to criminal prosecution.
What constitutes the crime of “ embracery,” which is defined by section 75 of the Penal Code, has seldom been considered by the courts of this country. So far as I have been able to discover, in only two cases has ia person been put upon trial for that offense in the United States. (State v. Sales, 2 Nev. 269; State v. Brown, 95 N. C. 685.)
This is probably due to the fact stated in McClain on Criminal Law *179(§ 899) as follows : “ But the statutes providing for the punishment of the attempt to corrupt a juror by offering him improper inducements to influence his decision, supersede the common law and the early English statutes relating to embracery, so that under that name the crime is practically unknown with us, the offénse which the statutes create being analogous to those of bribery and accepting bribes.”
The offense was described by Blackstone as “ an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments and the like.” (4 Black. Com. 140.)
In 1 Hawkins’ Pleas of Crown (Chap. 27, subd. 8, § 1) it is said: “ It seems clear that any attempt whatsoever to corrupt or influence or instruct a jury, or any way to incline them to be_ more favourable to the one side than to the other, by money, promises, letters, threats or persuasions, except only by the strength of the evidence and the arguments of the counsel in open court at the trial of the cause, is a proper act of embracery, whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false.”
Substantially the same definition was adopted in Gibbs v. Dewey (5 Cow. 503), although the case was an action for slander.
These definitions do not aid in determining the meaning óf section 75 of the Penal Code, or in defining what precise acts constitute the offense, so that we are brought back to the question: Within the language of the section is the evidence in this case sufficient to prove, beyond a reasonable doubt, that the defendant improperly attempted to influence the juror Weed in respect to his action as a juror ?
For the reasons above indicated we think it fails to establish beyond a reasonable doubt the defendant’s guilt:
In my opinion the justice presiding at the Trial Term of the Supreme Court, at which the indictment against the defendant was found, committed error when charging the grand jury by reading to them the affidavits referred to in the record before us; that the motion made on behalf of the defendant to dismiss the indictment upon that ground was properly made and should have been granted, and that its denial presents such error as to require a reversal of the judgment of conviction.
If reversible error was thus committed by the learned presiding *180justice, there can he no doubt /that .the question was properly raised by the defendant’s motion to dismiss the indictment, and that the order denying such motion is reviewable by this court, notwithstanding the error complained of is not one of those ¡specified in section 313 of the Code of Criminal Procedure. This has been distinctly held in a large number of cases. The question was fully considered by Mr. Justice Rumsey in People v. Brickner (8 N. Y. Crim. Rep. 217) in an opinion in which substantially all the authorities are cited and considered, and the rule above indicated was held to be correct.
By the affidavits in the record it appears, conclusively and without contradiction, that in charging the grand jury in respect to the crime charged in the indictment, having called them before him for that purpose, the learned trial justice, after calling attention to the nature of the charge which they were to investigate, and the law defining the offense and applicable thereto, read to them three affidavits, one made: by Abram Weed, a member of the grand jury,- and two others made by Harvey Watson and Charles Powers respectively, in which the affiants purported to state in detail the facts constituting the offense charged in the indictment to have been committed by the defendant, and substantially all the facts relied upon by the People to prove the offense.
Abram S. Weed, one of the affiants,- was sworn before the grand jury, but what he testified to there does not appear, and so. far as appears the affiants Watson and Powers were not sworn before the grand jury at all. The learned justice, at the close of his charge, and after reading the affidavits referred to, stated to the grand jury: 41 If what is charged in these affidavits shall be -proven before your body, then it will be your duty to find a bill of indictment for this misdemeanor against the persons who are guilty of it.”
The jury were thereupon directed to return to the jury room for deliberation, and thereafter the indictment in question was found. During such deliberation they must have, had in their minds the sworn statements of the three affiants who, so far as appears, were not sworn before'the grand jury, and were not subjected to cross-examination or other tests to ascertain whether the statements'made by them in the affidavits were true or false, and it cannot be said that those statements, which were given emphasis by being read by ■the court, did not materially influence the grand jury’s action.
*181It seems to me that such a proceeding ought not to receive the sanction of this court. If it does, then any justice is at liberty, if so inclined, while charging a grand jury called before him for the purpose of directing them to investigate to ascertain whether or not a specific crime has been committed by a- particular individual, to read to such grand jury any number of affidavits embodying the facts necessary to establish the commission of such crime by such individual, without reference to whether or not the respective affiants are to be called before the grand jury and sworn in respect to the facts stated by them. It will he readily seen that the action of a grand jury might be influenced much more by affidavits read to them by the court under such circumstances, than by any facts which might be sworn to by witnesses examined before them. The evidence of the witness or witnesses examined might not bring conviction; might be disregarded by the grand jurors; but if supplemented and fortified by affidavits of other persons, perhaps personally known to the grand jurors, the evidence presented would quite likely be deemed sufficient to justify the finding of a true bill.
So far as 1 have been able to discover, this precise question has not been passed upon and decided by the .courts of this State. It is said in Thompson and Merriam on Juries (§ 599): “ The grand jury have a right, at all reasonable times during the discharge of their duties, to apply either to the court or to the prosecuting attorney for advice. But this advice must be restricted to matters of law. Neither the court nor this officer can say to the jury that the facts as shown by the evidence are sufficient to authorize them to find a bill.”
This was precisely what was said by the trial justice in the case at bar. He said : “ If. what is charged in these affidavits shall be proven before your body, then it will be your duty to find a bill of indictment for this misdemeanor against the persons who are guilty of it.” (People v. Flack, 125 N. Y. 324; People v. Helmer, 154 id. 596, 601.)
In this case evidence, the precise facts which constituted the alleged offense, purported to be stated in affidavits obtained expa/rte, which were read to the jury, and in such manner as to lead them to give weight to the statements contained therein, without having *182opportunity to cross-examine the affiants, to observe the manner of • their giving testimony, or in any other manner to satisfy themselves • as to the truthfulness of the statements made.
If such rule shall receive the. sanction of the courts, it will be unnecessary in many cases for the prosecuting attorney to submit more than a scintilla of evidence to the grand jury in the regular way, because the convincing evidence, and that which will influence the finding of the bill of indictment, may be supplied by affidavits of prominent persons, or those perchance who. may be influential with members of the grand jury, and read by the presiding judge as a part of his charge, respecting a particular crime which he directs to be investigated.
We think such rule ought not to prevail. If it was error to read the affidavits in question, It is no answer to defendant’s motion to say that he did not show that it did harm.
In People v. Helmer (supra) the head note is as follows: “ Where the charge to the jury is erroneous, the verdict must be set aside, unless it is apparent that the error did net and could not have affected the verdict; and it is not for the defendant to show how he was injured by it, but it rests with the prosecution to show that no possible injury could have arisen from the error.”
We think the judgment should be reversed.
Judgment and conviction affirmed, and proceeding remitted to the clerk of Wayne county pursuant to section 547 of the Code of Criminal Procedure.