(dissenting):
I am unable to concur in the opinion of Mr. Justice McLaughlin written in this case, or in the conclusion that the judgment of the •Court of General Sessions of the Peace should be reversed. Prominently appearing in the record is the fact that the rights of the •defendant as they are related to the merits, of the case were so carefully protected by the recorder who presided at the trial that not a single exception was taken to his charge. The defendant’s counsel were so thoroughly satisfied with it, that they-declared the court had so- fully, covered everything they had requested in the way of instructions that they withdrew all of their proposed requests to .charge. That disposes of much of the argument that the defend-. ant was not accorded a. fair trial. He and his counsel were at least .«content with the manner in which the case ultimately went to the jury, and we are, therefore, only to inquire whether his legal rights were denied by the violation of substantial provisions of law, or by *135material errors committed during the progress of the trial relating to matters of evidence, or whether such misconduct of those engaged in the prosecution occurred as to satisfy an appellate court that the verdict of the jury finding the defendant guilty must have been influenced by such misconduct.
In the first place, the authority of the district attorney to put the defendant on trial at all is challenged. The facts connected with that challenge are very simple. The indictment upon which the defendant was tried and convicted was found to be a true bill by the grand jury on the 26th day of June, 1901. It was found under sections 48 and 72 of the Penal Code. The grand jury previously and at the same June term, to wit, on the 17th of June, 1901, had found another indictment against the same defendant under section 72 of the Penal Code. On the same day, according to the indorsement on the first indictment, the defendant pleaded not guilty, but on the twentieth of June, that plea was withdrawn and a demurrer to the indictment was filed. Argument was had thereupon on the 21st of June, 1901. On the 26th of June, 1901, the first was declared superseded by the second indictment; On the first indictment was indorsed the fact that it was superseded,. and on the second an indorsement was also made that it superseded the one filed June 17, 1901. The defendant also demurred to the second indictment and the demurrer was overruled and the defendant put upon trial. Ho decision was ever made upon the demurrer to the first indictment and upon the trial under the second, the defense is advanced that the pendency of an issue of law raised upon the first indictment precludes the attachment of jurisdiction under the second indictment, and that the first indictment could not be superseded under the provisions of the Code of Criminal Procedure, and that the defendant could not be reindicted until the first demurrer had been disposed of and then only (if the demurrer were sustained) in the event of the court permitting a resubmission to the grand jury to be made.
That the Code of Criminal Procedure applies to all proceedings in criminal actions from the time it took effect is manifest; that it furnishes exclusive rules of procedure for all cases and in all stages of criminal actions and proceedings falling within its provisions needs no argument, but that such provisions cover conditions and *136situations not expressly or impliedly within it is not a tenable proposition, Nowhere in that Code is reference made to the supersession of one indictment by another found by the same grand jury at the same term or otherwise, and yet a statute has been in existence for more than seventy years, and is still in existence, which provides that, “if there be at any time pending against the same defendant two indictments for the- same offence or two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment and shall be quashed.” When, in 1886, the Legislature, undertook the task of searching the great body of the statutory law of the State, to winnow it and declare what enactments were no longer in force, it specifically excepted from the repealing act, passed June 5, 1886 (Laws of 1886, chap. 593), the provision of section 42 of article 2 of title 4 of chapter 2 of the 4th part of the Revised Statutes, (2 R. S. 726). being that above quoted, concerning the superseding of one indictment by another. Obviously this section of the Revised Statutes was retained as part of the body of the law because no provision had been made in the Code Of Criminal Procedure for such a ease. Its retention necessarily recognized that one indictment may be superseded by another, and it was enacted simply to regulate a .rule of the common law. We are not without information that such was. the object of that statute. In People v. Monroe Oyer and Terminer (20 Wend. 110) Judge Cowen refers to it as being a singular statute and states that why. it should have been passed in regard to a matter which stood upon a much better footing at the common law- it is difficult to conceive. What the footing of the rule at the common law was is referred to in the proceedings against Stratton and others for deposing Lord Pigot (21 How. St. Tr., 1048), where. the Solicitor-General moved to quash an information because the crown might go on to trial and judgment on a new information, notwithstanding the pendency of a former one, stating that on all indictments or informations for crimes the pendency of another prosecution for the same offence cannot be pleaded as it may be upon inf or-' mation for penalties. In Hawkins’ Pleas of the Crown (Book 2, chap. 34, § 1) it is said that another prosecution depending- is not a good plea to an indictment. In Matter of Stratton the court refused to quash because the Attorney-General had it in.his power *137by entering a nol. pros, to dispose of the information, and that was the condition at the common law referred to by Judge Cowen in the case above cited.
The amendment of the common law by the section of the Revised Statutes above quoted consists in the provision that the first indictment must be quashed. That section declares a positive rule of' law which permits of the supersession of one indictment by another by direction of the court, for under .the case of People v. Monroe Oyer and Terminer the action of the court is required before the first indictment may be suppressed. The indorsements upon the indictments in this case are part of the record before us, and, in the absence of anything to show to the contrary, we must presume that the first indictment was, in substance, quashed by being superseded by order of the court and not by the act of unauthorized officials or other persons. Here, then, is a positive rule of law which is sought to be limited by some construction which it is supposed will harmonize it with the provisions of the Code of Criminal Procedure. There is nothing in that Code to limit the operation of the rule as one of the common law modified by the Revised Statutes. It should be given the same effect now as heretofore. If, instead of maintaining section 42, in force as part of the Revised Statutes, that section had been inserted literally in the Code of Criminal Procedure, would the result in any way have been different? Ho provision of that Code is pointed out which would qualify the rule. It would still be an independent provision for getting rid of an indictment, defective or insufficient, or not meeting thé requirements of a particular offense. The construction could not be reasonably given that by the simple interposition of a demurrer all authority to supersede an indictment should at once end and the power to reindict depend entirely upon the discretion of the judge if he sustained the indictment. The provisions of the Code of Criminal Procedure relating to demurrers govern and control in cases of indictments remaining uncanceled and of record — not té those quashed and superseded by an independent provision of law. Ho question is involved here of the defendant being twice put in jeopardy. A demurrer is not a plea (Code Crim. Proc. § 321), and the defendant was never put upon trial, nor did he incur the peril of a verdict on the first indictment.
*138Second: We are further asked to reverse the judgment and set. aside the verdict on the ground of the abuse of counsel for the prosecution in statements made in opening the case and in summing up to the jury, and for the reason that such statements related to matters outside and irrelevant to the issues and “ were calculated to intimidate and coerce the jury through threats and by appeals to their fears and public opinion; were not rebuked by the judge nor their continuance stopped when objected to by the defendant, and they constitute an invasion of the defendant’s right to a fair and proper trial.” It is not necessary to repeat the remarks. They are set forth in the opinion of Mr. Justice McLaughlin. The recorder is now put on trial, but I am unable to perceive that he failed in his duty to the defendant.
Concerning the speeches or remarks of counsel, our attention is called again, as is becoming quite the fashion, to People v. Mull (167 N. Y. 247); People v. Fielding (158 id. 542); People v. Watkins (23 App. Div. 253). Whatever may be drawn from these cases by way of instruction upon the subject of the duty of counsel in addressing juries, neither they nor any other cases warrant the deduction that a verdict solemnly rendered on competent and convincing evidence must be set aside, because under pressure of great excitement counsel make statements which by their very extravagance are rendered harmless. What right have we to assume that a special jury drawn from a selected number of the most intelligent members of a metropolitan community, and who have answered the requirements of sections 7 and 8 of the act, chapter 378, Laws of 1896, would be recreant to their duty and coerced or induced to violate their oaths by the tumid style and overshot declamation of conn'sel in argument, even if in unguarded moments these blemishes should be introduced in an address by so very able and accomplished a lawyer as the prosecutor in this case. What was said by counsel and is objected to here was calculated rather to repel the jurors and prejudice them against the speaker than otherwise. I have no criticism to make of' the action of learned courts in setting aside-verdicts because of the intemperate language used, and prejudicial statements deliberately made ' by prosecuting counsel, manifestly injurious to a defendant and which may have been influential "with the jury. The underlying inducement to such action has always *139been the conviction of the court that, under the circumstances of each case, the nature of the charge, the character of the evidence and the atmosphere of the trial, so far as that could be reproduced, the remarks of counsel were such that average men must or may have been affected by them and thus influenced to render a verdict. In reaching their conclusion courts so dealing with verdicts act altogether upon their own impressions. I have not been able to discover a single case in which the deliberate finding of a jury has been repudiated and nullified where the remarks of counsel have been of such an exaggerated and excessive character that they ought not to influence a jury of weaklings. This defendant was not tried before such a jury, but one impaneled from the special jury list of the county. I cannot believe otherwise than that the remarks of counsel objected to in this case could have had no more effect upon such a jury than the idle wind.
Third, The contention is further made by the appellant that prejudicial error was committed by the trial court in its refusal to strike out the testimony of the witness Nettie Drexler. This woman testified that she overheard a conversation which took place between the defendant and Lena Schmitt relating to the defendant’s conduct in making raids upon the house kept by the latter, turning the inmates out and otherwise molesting and maltreating them after he had been paid, as the prosecution claims, to protect them. This witness swears that she heard Mrs. Schmitt say to the defendant, “ Why did you do this to me? Ton took money and now you are chasing, out the girls.” The witness Drexler was then asked, “ What did Bissert say, if anything ? A. I didn’t hear what answer he gave.” Thereupon the defendant’s counsel moved to strike out the testimony of this witness. The object of introducing this testimony undoubtedly was to show that the defendant acquiesced in the statement made by Mrs. Schmitt in the conversation testified to. The defendant claims that the fair construction of the answer of the witness is that something was said' by the defendant in reply to Mrs. Schmitt, while the prosecution claims that her answer is susceptible of the construction that the defendant made no reply. I think this testimony should have been stricken out, but the question remains whether it really could have had any effect upon the jury, or whether it was of such importance that a verdict found upon other. *140and independent evidence sufficient to establish the charge should be set aside. That it was not regarded as of any consequence by the defense, the prosecution or the court seems to be a fair conclusion from reading the record of the subsequent stages of the trial. We have in the record in full the addresses to the jury of the defendant’s counsel, the counsel for the prosecution and also the judge’s charge. Ho reference whatever, even the slightest, is made to the testimony of the woman Drexler in these addresses or in the charge. It was entirely ignored. The verdict was evidently found upon the testimony of Lena Schmitt and of another witness who is not referred to in the opinion of Mr. Justice McLaughlin, but who furnished corroboration of the witness Schmitt, which the court instructed the jury was required to authorize a conviction. The witness Rosie Greenberg, called by the prosecution, testified that she saw the money given as a bribe actually handed by Lena Schmitt to the defendant. She swears to the conversation had between the defendant and Schmitt in the front room of Schmitt’s house and that the defendant said he had seen the police captain and that everything was all right; that Schmitt asked him how many girls he would allow her to keep, to which he replied five or six, and that she saw Schmitt hand the defendant Bissert a roll of money. That was independent corroboration, the testimony coming, it is true, from a contaminated source, for this witness was one of the inmates of the Schmitt den. But her credibility was for the jury. We are referred to what was said by the Court of Appeals in Moller v. Moller (115 N. Y. 466) as to the evidence of a prostitute or one of admittedly low and depraved character requiring corroboration, but in Winston v. Winston (165 N. Y. 556), commenting upon the Moller case, the court said that in that casé it did not intend to ll old that corroboration of a prostitute’s testimony was a rule'of evidence, but one for the guidance of judges. In his charge to the jury in the case -now before us, the recorder accepted that guidance and very carefully instructed the jury, quite to the satisfaction of the defendant’s Counsel (for no exception to the charge and no request was made for further instructions) in the following words i “ The testimony of prostitutes, as a general thing, should be very closely scrutinized and weighed by a jury, and a conviction should never be had upon the testimony of prostitutes, unless such testi*141mony conforms to the circumstances happening at or about the time, and impresses the jury with the inherent truth of the story.” In the same connection, the court quoted the language of the presiding justice of this court in Matter of Cross (85 Hun, 357) as follows : “ It is undoubtedly true that much of the evidence upon which we must rely, if crime is to be punished, comes from polluted sources. Crime is not committed, ordinarily, with respectable and reputable witnesses looking on, who can testify to the facts, but it has its birth largely in secret and amongst the disreputable; and the proof of its commission must be established, if at all, by proof taken from this class of the community. These facts should be no reason for allowing crime to go unpunished. It necessitates, however, a closer examination of the evidence, and some corroboration of the witnesses, either from the nature of their testimony given, or by the testimony of other witnesses. If the story of such a witness is of such a character, and so consistent in its details, and harmonizes so well with surrounding circumstances as to cany conviction, even where there is no corroborating testimony, it may afford satisfactory proof of guilt. But where such evidence is not consistent, abounds in contradictions and shows a disregard of the truth, clearly it cannot form the basis of a judgment establishing crime.”
Other grounds for reversing this judgment are urged upon ns very strenuously by the learned counsel for the appellant. They are not referred to in the opinion of Mr. Justiee McLaughlin, but one or two of them should receive some notice.
Fourth. It is claimed by the appellant that there was a fatal variance between the indictment and the proof. It is charged in the indictment that the offense with which the defendant was charged was committed on October 15, 1900, while the proof shows that the alleged crime was actually committed on the 29th of September, 1900. Upon this appearing on the trial, the defendant sought to take advantage of it in a perfectly legitimate way ; but the variance was not material in this case, for the allegation of time in an indictment, unless such time is of the essence of the offense, need not be proved as laid in the indictment. Such was the rule at common law, even in cases of high treason. (Sir Henry Vane's Case, 6 How. St. Tr. 131.) That rule has been followed in People v. Formosa (131 N. Y. 478); People v. Willis (158 id. 392); *142People v. Emerson (53 Hun, 437); People v. Jackson (111 N. Y. 363), and other cases; and section 280 of the Code of Criminal Procedure provides that the precise, time at which the crime was committed need not be stated in the indictment, but it may allege it to have been committed at any time before the finding thereof, “ except where the time is a material ingredient in the crime:”
Fifth. It is also urged by the appellant that the second indictment was improperly found, because witnesses were not re-examined by the grand jury. If a second indictment might be found at all, it was not necessary to re-examine the witnesses. “ The grand jury at any time during its term of organization and service, even though it be at a subsequent term of the court, may find' a second indictment as a substitute for the first, without hearing the evidence anew.” (1 Bish. Crim. Proc. [3d ed.] § 870.) Where a bill has been withdrawn or quashed, a new bill may be found as a substitute by the same grand jury without examining witnesses. (Whart. Crim. Pl. & Pr. [8t.h ed.] § 365.) I find nothing in the Code of Criminal Procedure which, if I am right in the conclusion that a second indictment may be found to supersede the first, requires the grand jury to examine anew the witnesses upon whose testimony or statements the first indictment was found.
Sixth. The principal witness for the prosecution to prove the crime laid in the indictment was one Lena Schmitt. She testified that on a certain day she paid a certain sum of money to the defendant for what is called “ police protection ” in conducting and maintaining a house of prostitution. The prosecution was- allowed to prove that on a date a few days preceding that upon which the alleged payment to the defendant was made this witness drew from a savings bank a sum of money. This was testified to by an officer of the bank in which Lena Schmitt kept her account. That proof was undoubtedly considered material as showing that the witness Schmitt was possessed of money and the source from which she obtained it. 1 do not think it was material evidence, but at the same time it was not of such a character as would affect the merits of the case. It was entirely immaterial where she got the money, if it was actually paid to the defendant. The point in issue was, whether money was paid. That was to be proven to the satisfaction of the jury beyond a reasonable doubt. If the proof *143were sufficient to establish that fact beyond a reasonable doubt, then the evidence as to the source from which the money was obtained could not have any influence upon the verdict. And the same considerations are applicable to proof allowed of Lena Schmitt buying furniture for the house she kept and maintained for unlawful purposes. The admission of these matters in evidence may constitute technical errors, but to my apprehension are not sufficient to reverse the judgment, because they were not prejudicial. (Code Grim. Proc. § 542.)
Various circumstances and details scattered through the record, to which it is not necessary now to refer, come in aid of the truth of the testimony of the chief witnesses for the prosecution. It is not required that special reference should be made to any other of the arguments advanced by the appellant for the reversal of this judgment.
I think the defendant was properly convicted on the evidence, and that the judgment should be affirmed.
O’Brien, J., concurred.
Judgment reversed and new trial ordered.