I am unable to agree to an affirmance of this judgment. The real, and substantially the only issue litigated at the trial was the age of the complaining witness. If, at the time of the commission of the offense charged in the indictment, she were over eighteen years of age then the defendant is not guilty of the crime of which she has been convicted. A person charged with the commission of a crime' is entitled to a fair trial, which is but another way of saying one conducted according to law. The trial which resulted in the defendant’s conviction was not, as I read the record, conducted in this way. The learned assistant district attorney, not only in his opening remarks to the jury but also in his closing address, did not confine himself to commenting upon the evidence, but went outside of it and used language which had a tendency to, and in all probability did, tend to excite their passions and prejudices against the defendant. This court and the Court of Appeals have heretofore disapproved of such practice and reversed judgments of conviction upon this ground alone. (People v. Bissert, 71 App. Div. 118; People v. Fielding, 158 N. Y. 542.)
But if this alleged error could be overlooked, which I do not think it should be, a much more serious one is presented in the admission of evidence. Prior to the finding of the indictment a complaint was made in the form of affidavits to a police magistrate, accusing the defendant and others of the commission of . a. crime *456similar to the one for which she was convicted. At the trial which resulted in the defendant’s conviction the learned assistant district attorney offered in evidence the record of the proceedings (including the affidavits) had before the magistrate. Objection was duly made and-overruled, and an exception takén. There is no rule of which I am aware which makes such record competent evidence upon a'trial under, an indictment subsequently found. The witnesses wlio were sworn before the magistrate, and whose affidavits were introduced in evidence, were produced upon the trial and an opportunity for'examining them was afforded. The affidavits were not offered for the purpose of contradicting the witnesses ; on the contrary, the only purpose was to corroborate, if possible, .the statement of such witnesses as to the age of the- complainant. A witness cannot be corroborated in this way. (Connolly v. Brooklyn-Heights R. R. Co., 179 N. Y. 7; Austin v. Bartlett, 178 id. 310 ; Second Ward Savings Bank v. Shakman, 30 Wis. 333.)
But- it is suggested in the prevailing opinion, that this alleged error was corrected, because the court, in overruling the objection and receiving such record, remarked : “ It is a part of the record and it is the same as if they were offering the indictment in the case,” and also subsequently said : “ I shall instruct the jury,, and I do instruct them now, that the complaint in the police court, is the same as an indictment.” Neither statement was correct. The record of the proceedings before the police magistrate was not a part of the, record of the trial and had nothing to do with it, nor was it in effect the same as an indictment. The proceeding before the police magistrate was for the purpose of ascertaining whether a crime had been committed, and if so, whether there was sufficient evidence to justify holding the defendant until a grand jury had made further investigation. The indictment was the written declaration by a grand jury, not only that a crime had been committed, but accusing the defendant of committing it. The grand jury could receive only-legal evidence. (Code Crina. Proc. § 256.) The age of the complaining witness could not be established by evidence'used before a.,, committing magistrate, nor could the testimony of the witnesses at the trial be corroborated by affidavits previously made by them. '
The acts of the defendant were of such, a character, as naturally and almost irresistibly to lead one to overlook or disregard settled *457rules of law to the end that she may be punished.. But whatever may be her moral guilt, she was entitled to' a fail” trial — to be confronted with the witnesses against her — and to have the jury say, upon legal evidence, whether she was guilty of the crime for which she was placed upon trial. Unless the People could satisfy the jury beyond a reasonable doubt, after a trial conducted in this way, that she was guilty, then she was entitled to be discharged.
Upon both of the grounds suggested, therefore, I think the judgment of conviction should be reversed and a new trial ordered.
Ingraham, J., concurred.
Judgment affirmed.