This is an appeal taken-by the defendant from the judgment of the Monroe County Court, entered June 9, 1915, convicting him of the crime of grand larceny in the -first degree.
The indictment charged the defendant with stealing from the Fidelity Trust Company of Rochester, on or about October 15, 1913, five first refunding’ mortgage sinking fund five per cent gold bonds of Consolidated Coal Company of Maryland, conditioned for the payment of $1,000 each December 1, 1952, and interest semi-annually, of the value of $5,000, numbered respectively 5939, 12123, 12124, 12125 and 12126.
There are three counts in the indictment. The first charges the crime under subdivision 2 of section 1290 of the Penal Law, the second, under subdivision 1 of that section, and the third, in the common-law form for grand larceny.
The judgment is attacked on various grounds, but only four of these grounds seem to merit our attention, to wit, (1) that there is a variance in the proof from the indictment; (2) that evidence was improperly received of crimes other than that charged in the indictment; (3) that the testimony of the defendant in a proceeding in the Surrogate’s Court for the discovery of assets was improperly introduced in evidence by the district attorney, and (4) that the complaint and the defendant’s answer in a civil action brought by the trust company against the defendant to recover the bonds described *838in the indictment and other property were improperly received in evidence.
To the end that there may be a proper consideration of the questions raised by the appellant, a brief account of the facts and circumstances claimed by the respondents to establish the commission of the crime charged is necessary.
’ In about the year 1902 Harriet F. Newcomb, a widow of advanced years, was residing at No. 292 Oxford street, in the city of Eochester, N. Y. She had no children and no near relatives. Prior to that time she had made the acquaintance of Benjamin Hill Smith, the defendant, in Buffalo. He came to Eochester in about the year 1902, and soon thereafter began to assist Mrs. Newcomb in the settlement of her husband’s estate. In about the year 1905 Smith became a member of her household and remained such until the time of her death. They were very friendly and he assisted her and acted as her agent in the matter of her investments and the management of her estate.
Mrs. Newcomb transacted business with the Fidelity Trust Company of Eochester, and its attorneys, Duffy & McLean, did the principal part of her law business and drew her will and the codicils thereto.
On the 30th day of May, 1913, Mrs. Newcomb conveyed to the defendant a house on Washington street in Eochester and some lots in the State of Michigan. The conveyances were acknowledged before one Myron W. Greene, who will be referred to hereinafter. Mr. McLean, of the firm of Duffy & McLean, testified that the defendant came into his office one day and said that Mrs. Newcomb wanted him to prepare a deed from her to the defendant for this house and lot on North Washington street and that he (McLean) told defendant that he would not do any such thing; that he told defendant that any time that Mrs. Newcomb wanted him to do any business for her she came to him and told him about it and talked to him about it; that he told defendant that she was a sick woman and an old woman and “if she wants me to draw a deed to any property she has a telephone in her house and she can call me on the telephone and I will go to her house if she is too sick to come to my office, and I don’t propose to draw *839any deeds to you from her without orders from her direct.” McLean testified that he never did receive any orders from her with reference to the property.
On the 24th day of September, 1913, Mrs. Newcomb died at her home, leaving a last will and testament. The original will was dated July 3, 1911. There were two codicils thereto, the first dated October 11, 1912, and the second was dated August 11, 1913. The Fidelity Trust Company of Rochester was named as executor of the will. The petition for the probate-of the will was dated October 1, 1913, and the will was admitted to probate October 10, 1913, and letters testamentary thereon issued to such trust company. In the original will Mrs. New-comb gave general money legacies amounting to $112,000. Among them was a legacy to the defendant of $3,000. She gave her homestead, 292 Oxford street, Rochester,, to her niece, Florence T. Brown, wife of Thomas Fox Brown of Rochester, “together with all the furniture and the personal property kept and used in the house, except moneys, stocks, securities, and valuable papers,” and also excepting certain furniture and articles.
By what may be regarded as the disposition of the residuum of the estate she directed the sale of her real estate (except her homestead) and the remainder of her property and the distribution of the proceeds among the general legatees in .proportion to the amounts of their legacies respectively, and in case her estate should not be sufficient to pay all the legacies in full she directed a proportionate reduction of each legacy whose amount exceeded $2,000.
By the first codicil she makes a change in the disposition of her furniture, and disposes of her jewelry, plate, pictures, china and bric-a-brac, but otherwise ratifies her will. By the second codicil she revokes a legacy of $3,000 to Mrs. Farrington, and again ratifies her will in other respects. In neither of the codicils is the defendant mentioned.
Through an exchange with W. W. Kneath & Co. (dealing in Spencer Trask securities) of Kaw Valley bonds belonging to Mrs. Newcomb, she acquired and became the owner of the bonds described in the indictment on the 22d day of January, 1912. There is no dispute that she remained the owner of these *840bonds until as late at least as May 30j 1913. The claim of the People is that she owned them to the time of her death. The claim of the defendant is that she gave them to him about May 30,1913. It is undisputed that the defendant sold them through Myron W. Greene, a Rochester broker, after the death of Mrs. Newcomb, and on the 15th day of October, 1913. The jury sustained the People’s contention, and so found the defendant guilty of the crime of grand larceny.
■Certain bonds and notes, referred to on the trial as “ Spencer Trask securities,” including the bonds set forth in the indictment, were purchased and owned by Mrs. Newcomb in her lifetime, and are described with other securities and obligations in Schedule A annexed to the complaint in the action brought by the executor of Mrs. Newcomb’s will against the defendant, appearing in the appeal book. These Spencer Trask securities and the other obligations described in that schedule were, with one or two exceptions, indisputably purchased and owned by Mrs. Newcomb in her lifetime, and those so excepted, while claimed by the defendant to be his and to have been purchased by him, are claimed by the People to have been in fact purchased either by Mrs. Newcomb, or with her money converted by the defendant to his own use, with criminal intent.
To be more specific, the evidence shows conclusively that Mrs. Newcomb bought and paid for the bonds and obligations mentioned, at the prices and the times, respectively, in the following, and that the same are known in the case as the Spencer Trask securities:
Date of Purchase Price
Five first refunding five per cent bonds of the Consolidated Coal Company of Maryland conditioned for the
payment of $1,000 each____ January 22, 1912, $4,350 00
Ten first mortgage five per cent bonds of Stephenville North and South Railway Company of Texas, conditioned for the
payment of $1,000 each .... March 15, 1913, 9,600 00
*841Date of Purchase Price
Five ten-year five per cent gold notes of Central States Electric Corporation for the payment of $1,000 each........ November 18,1912, $4,625 00
One five per cent equipment bond of Virginia and Southwestern Railway Company conditioned for the payment
of $1,000 .................. August 18, 1913, 990 70
Five one-year five per cent notes of New York, New Haven and Hartford Railroad Company, due December 1, 1913, for the payment of $1,000
each....................... December 7, 1912, 5,000 00
Ten first six per cent bonds of the Locomobile Company of America conditioned for the
payment of $1,000-each..... October 29,1912, 9,750 00
Three first mortgage five per " cent bonds of Burlington Railway and Light Company conditioned for the payment
of $1,000 each.............. September 24, 1912, 2,835 00
Fifteen first and refunding five per cent bonds of Indiana Railway and Light Company conditioned for the payment of $1,000 each (paid for March 15, 1913), temporary receipts then taken for which bonds
were delivered June 14,1913. March 15, 1913, 14,100 00
These so-called securities were transferable by delivery.
It also appears that Mrs. Newcomb purchased of Myron W. Greene on the 16th day of August, 1909, ten bonds of the city of Seattle, State of Washington, conditioned for the payment of $1,000 each, for the sum of $10,000. The explana*842tion of the purchase and disposition of these bonds appears in the testimony of Mr. Greene and presents by itself an interesting chapter in the history of the alleged crime. In view of the other evidence in the case it would have justified the jury in believing that substantially all that G-reene said that was favorable to the People was worthy of belief and that substantially all that was said by him that was favorable to the defendant was unworthy of belief. Although called as a witness by the People, his relation to the transaction was of such a nature as to justify the jury in the belief that much of his testimony was given in an effort to protect himself from suspicion of complicity with the defendant in the commission of the crime.
Referring again to the schedule annexed to the complaint in the action heretofore mentioned, the supposed property men tioned in such schedule described in the following seems not to have been sufficiently referred to in the evidence to require further comment other than to call attention to the fact: ■
One five per cent consolidated gold bond of the Rochester Railway and Light Company conditioned for the payment of $1,000.
Two three and a half per cent convertible bonds of Pennsylvania Railway Company conditioned for the payment of $1,000 each.
Five debenture bonds and twenty-five shares of stock of Dean Alvord Securities Company conditioned for the payment of $1,000 each.
The record discloses that Mrs. Newcomb purchased from Harris, Forbes & Co. five bonds of the Pacific Cas and Electric Company conditioned for the payment of $1,000 each, mentioned in the schedule referred to.
Defendant also claims to be the owner of a certificate of deposit, No. 641, issued by Rochester Trust and Safe Deposit Company to Mrs. Newcomb September 2, 1909, for the payment of $10,000, also described in the schedule.
It appears that the defendant, through Mr. Creene, the broker, after the death of Mrs. Newcomb, sold and disposed of certain bonds and obligations referred to in the foregoing, described in the following, at the times and for the prices respectively stated in the following:
*843Date of Sale
Price
Ten Stephenville North and South Railway Company bonds......
October 16, 1913, $8,484 72
Five Central States Electric Corporation gold notes...........
October 9, 1913, 4,543 83
One $1,000 Virginia and Southern Rahway Company bond.......
October 23, 1913, 986 38
Five Consolidated Coal Company of Maryland bonds (described in indictment)..................
October 15, 1913, 4,343 75
Five bonds of Pacific Gas and Electric Company.............
October 10, 1913, 5,000 00
As already appears, Mrs. Newcomb died September 24,1913, and on that same day the defendant saw Mr. McLean, the attorney who drew her will, and notified him of her death.
By appointment Mr. Vollertson, assistant secretary of the Fidelity Trust Company, named as executor of Mrs. New-comb’s will, met the defendant at the late residence of Mrs. Newcomb on the 30th day of September, 1913, where he obtained from the defendant her silverware and jewelry. Vollertson testified that he asked the defendant if there were any other effects belonging to her which he thought ought to be in the possession of the executor, and that, receiving an answer in the affirmative, the defendant took Vollertson into the library and from a drawer or drawers in a desk took and handed to Vollertson stocks and mortgages amounting in value to more than $100,000, a list of which appears in the printed record. Vollertson further testified that after he had expressed surprise that there should be this amount of valuable papers and securities lying around loose in the desk, he asked the defendant if there was anything else and that the defendant replied that there was not. Vollertson further testified that he asked the defendant for Mrs. Newcomb’s books of account and that he replied that she had none; that when Vollertson asked defendant for her bank books he produced one or two; that he asked defendant for her canceled checks and defendant said they had been destroyed; that Thomas Brown was present on this occasion. Vollertson further testi*844fied that later in the day he went again to Mrs. Newcomb’s house and there met by appointment Thomas Brown, the husband of the niece to whom the house had been devised, and, in the absence of the defendant, discovered in the desk from which the defendant had taken the mortgages and stocks, several books of account,' Mrs. Newcomb’s canceled vouchers, other pass books and other miscellaneous memoranda, which were produced on the trial. It appears that the books of account are in the defendant’s handwriting and the vouchers were canceled checks bearing Mrs. Newcomb’s signature. It appears that Vollertson found all of Mrs. Newcomb’s canceled checks from January 1, 1909, and some previous to that date. It also appears that the bodies of the checks were in the handwriting of the defendant almost without exception.
It will be remembered that the will was filed with the petition for probate, October 1, 1913, and was probated October 10, 1913. Quincy Van Voorhis testified that the defendant was at his house about the time the will was probated and stated in a conversation that Mrs. Newcomb did not give him as much as people supposed; that she had given him the Washington street house and some lots in Michigan; $3,000 in her will; a claim of doubtful value in litigation against somebody by the name of Welch; a claim in the Dean Álvord Company, also of doubtful value; and that was all she had given him; that defendant on this occasion showed Mr. Van Voorhis a paper which purported to be an assignment of stocks of $5,000 or $6,000 and stated that there was a verbal understanding between him and Mrs. Newcomb that she would give him the dividends on these stocks as long as she lived, but that Thomas Brown had made a strong demand on him for these stocks and he had given them to Brown.
Mr. Keyes, vice-president of the Fidelity Trust Company, the executor of the will, testified that on October 18, 1913, he had a talk with the defendant in which Keyes asked for Mrs. Newcomb’s books of account and the defendant stated she had none; that Keyes told him he knew that was not so because he had opened one book for her and showed her how to keep track of the accounts. At that time it will be remembered the executor had the canceled checks. Keyes *845testified that on that occasion the defendant stated that all the vouchers had been destroyed. Keyes further testified that on that occasion he asked the defendant to furnish him with a list of all bonds purchased from January 1, 1911, down to the time of Mrs. Newcomb’s death and that defendant agreed to furnish the list and bring it to Keyes’ office on Monday, October 20, 1913; that defendant did not bring the list at the time agreed on and that on October twenty-first Keyes called him by telephone and asked for the list and the defendant responded that he was too busy to bring it to Keyes; that thereupon Keyes said he would come after it and then defendant said that he had changed his mind and would not give Keyes the list.
The proceedings for the discovery of assets of the estate of Mrs. Newcomb,- under section 2707 of the Code of Civil Procedure (1913), were begun October 23, 1913, and a subpoena in those proceedings was served upon the defendant that day. The hearing began about October 30 and ended about November 28, 1913.
Certain self-serving declarations of the defendant appeared in the record, presenting his claim to the property in question. Edward P. Vollertson, assistant secretary of the executor, testified that on November 25, 1913, in a conversation with the defendant, the defendant said that on the 23d day of January, 1913, Mrs. Newcomb was very sick and did not expect to get well, and that Sister Ellen was in the house with her and the latter telephoned defendant at the E. P. Beed Shoe Factory and that he went to the house and got a doctor for Mrs. New-comb. Vollertson further testified that defendant stated that Mrs. Newcomb told him that she wanted him to have the Spencer Trask securities and gave him the key to her safe deposit box at the Bochester Trust and Safe Deposit Company and asked him to get some deeds which were there and have Mr. McLean draw some deeds conveying the western property from Mrs. Newcomb to the defendant and that Mr. McLean refused to draw the deeds and that defendant did not want to open the safe deposit box alone and did not do so; that on the same day the doctor told defendant that Mrs. Newcomb had at least three more years to live which defendant reported to her and that after that she got better very rapidly; that on *846May 30, 1913, Decoration Day, various deeds to real estate were executed at 292 Oxford street and that defendant called in Myron W. G-reene who'took the acknowledgments; that later in Mrs. Newcomb’s room, at a time when neither Esther Marks nor Myron Greene was in the house and no one was present but Mrs. Newcomb and defendant, she gave him the so-called Spencer Trask securities and the $5,000 Pacific G-as bonds purchased from Harris, Forbes & Oo., and that the understanding was that the defendant was to turn over all the interest to Mrs. Newcomb, and that he was to pay all the future household expenses; that the defendant stated positively as the result of specific inquiry from the witness, that no one was present or witnessed this transaction and that there was no writing of any hind and no list of securities made.
Mr. Keyes, called as a witness on the part of the People, testified on cross-examination that the defendant told him that Mrs. Newcomb had transferred and delivered to him some time before her death a large number of securities. For some reason Mr. Keyes was not permittted to give the whole talk. He testified that the talk took place November 25, 1913.
Myron W. Greene, of whom we have already made mention, called as a witness on behalf of the People, testified on cross-examination that on May 30, 1913, when he took the acknowledgments to the deeds, Mrs. Newcomb said to him that she wished to transfer to the defendant “certain valuable securities among which she handed me some, I had some deeds; now I don’t remember who handed me the deeds but I had them in my possession, but I handed them to her I guess, and she looked them over, and she said she wished to transfer these pieces of real estate of which these deeds were to the property, to Mr. Smith; that it was a transaction between she (sic) and Mr. Smith, that was perfectly proper and she wished to have me understand that it was of her own perfectly free will, and as I understand it she told me that her will had been made and she couldn’t transfer this property to Mr. Smith in any other way, and she wished me to take her acknowledgment, witness her signature to these deeds which she was transferring to Mr. Smith.” Asked if Mr. Smith was present at the time, G-reene said he was not. Pressed by direct questions this wit*847ness responded to such questions first, that he could not recall that the old lady said she had given defendant certain securities, but later he yielded to the pressure and testified that she stated that she had given him securities.
The defendant by the cross-examination of Mr. McLean drew from him certain of the testimony given by the defendant in the discovery proceedings and, among other things, that the defendant testified that he had in his safe at his office on the 1st day of April, 1913, the bonds described in the indictment and that they had been in his office from the day of their purchase, to wit, January 22,1912, down to the time of Mrs. New-comb’s death, and that the defendant testified that Mrs. New-comb had given him quite an amount of securities .prior to her death. By this means the defendant not only secured for himself the benefit of self-serving declarations, but such declarations under his own oath.
William L. Parish, called as a witness by the People, testified that he had known the defendant for about six years and had been associated with him in business at 54 Mill street in Eochester, the business being repairing and refitting shoe machinery and sewing material; that this business was conducted under the name of Eegal Shoe Machinery Company; that he (Parish) worked upon a commission and began working for the defendant in November, 1912, and continued to February, 1913; that he went back again and assumed management of the business practically on Saturday, following Labor Day, in 1914; that he saw the defendant last on Labor Day, 1914, and did not see him again until the month of February, 1915, when the defendant came back from Europe; that he received letters from the defendant in his absence. These letters were received in evidence.
The defendant called two witnesses to sustain his defense on the merits, to wit, Esther Marks and Lewis P. Warner.
Esther Marks had been called as a witness by the People and on cross-examination had testified that the defendant was very kind to the old lady and she and he were very friendly. It appeared that Esther had been a member of the old lady’s household for sixteen years prior to her death. She was asked if she ever heard the old lady call the defendant “son” and *848replied in the negative. She was asked if she ever saw any manifestations of affection between the old lady and the defendant, such as embracing and caressing, and said she had not. By a direct question she was led to answer that the old lady and defendant were like mother and son together. When called as a witness by the defendant Esther testified that she had heard the old lady say that she. did not know how she would live without the defendant and that he was the salt of the earth, and that he used to do a lot of little things around the house to help the old lady and that sometimes they ate together in her room.
Lewis P. Warner testified that he was a manufacturer of belting in Rochester and had known the defendant about fifteen years; that the old lady knew that the defendant was a former partner of his; that the old lady used to address the defendant as “ son; ” that in 1913 the old lady said that she had given the defendant some stock, and continued “and of course, I didn’t want to pry in much and she kept leading and telling one thing and another, and she said she had given him some Spencer Transit (sic) securities, practically all of it, and that he was to give, as I recall it, he was to give her the dividends on those securities as long as she lived, and then I suppose, after her death he would get them.”
Warner testified that he became a partner of the defendant in 1904 and continued in such partnership two years, at the end of which time defendant went into the sewing machine business and bought some patents. On re-direct examination Warner remembered that he had seen the bonds described in the indictment at the office of the defendant on Mill street in June, 1913.
The People argued with much force that Warner was unworthy of belief.
Six witnesses, Parish and Warner among them, were called to testify to the defendant’s good character.
It will be remembered that the action brought by the executor of Mrs. Newcomb’s will against the defendant to recover for the conversion of the securities and property claimed by the plaintiff to have been converted by the defendant to his own use, was commenced by the service of the summons November 28, 1913. This action was at issue and noticed for trial for the *849September Equity Term, 1914, when the defendant, on or about September eighth, disappeared. He first went to Canada, where he remained until about October 22, 1914, and then he sailed from Montreal by the way of Halifax for England. He reached London about October 31, 1914. He was indicted in Eochester December 14, 1914, arrested in London about January 25,1915, and brought back to Eochester for trial. The trial began May 24, 1915, and the jury found him guilty of the crime charged in the indictment May 2-7, 1915.
Several letters written by the defendant during his absence from Eochester were put in evidence and showed clearly his persistent effort to conceal his whereabouts.
The estate of Mrs. Newcomb, as shown by the inventory, amounted to $230,000 or $240,000. Whether this includes the securities and property in dispute does not appear. It appears that the estate was charged a transfer tax on $276,000. The general legacies have been paid.
Thus we have a case where the jury was justified in finding the defendant guilty of the crime charged. The defendant had a fair trial and the charge of the learned trial judge was impartial and quite as favorable to the defendant as he could have reasonably expected it to be.
It is entirely true that flight creates no presumption of guilt, but it is equally true that flight with other evidence of guilt, depending upon the peculiar circumstances of a case, may be a potent circumstance in the chain of circumstances upon which guilt may be predicated. In this case the jury had a right to consider the element of flight as an important circumstance pointing to the guilt of the defendant.
Then we .have the defendant’s flight when about to be called upon to face the charge that he had unlawfully taken the property of this old lady; the fact that the defendant had been her trusted agent and as such had handled and had possession from time to time of her securities; the fact that there was not the slightest evidence of the delivery of any of the securities in question from her or from the defendant as her agent to himself as an independent individual; the fact that there was no written evidence of any transfer of these securities to him *850and not even a list of them made when it is claimed that she gave them to him; the fact that although the claim is made that these securities were given to him about May 30, 1913, the second codicil to her will was made after that date and on August 11, 1913; the fact that Mrs. Newcomb concededly received the coupons and interest upon these securities up to the time of her death; the fact that the defendant received the reasonable legacy of $3,000 by her will and claims by the gift to have received over $50,000; the fact that the excuse for not having the provision for the gift in the will was that the will was drawn, although she had made the last codicil to her will six weeks after the alleged gift; the fact that the defendant stated soon after the death of Mrs. Newcomb that she had given him no such property; the fact that he had disposed of more than $20,000 in value of these securities in so short a time after her death, without any disclosed need of the money, securities that were good investments; the fact that he made false statements to the effect that Mrs. Newcomb’s canceled checks had been destroyed and that she kept no books of account; and the fact that the excuse that the gift of the securities to the defendant was attended with the condition that the old lady should have the income therefrom during her lifetime, might well be considered as unworthy of credence and offered in bad faith to account for the receipt by the old lady of such income down to the time of her death, a fact which, without explanation, would have been extremely persuasive that no gift had been made; these circumstances, and others that might be mentioned, tell the tale of a crime which merited the verdict rendered by the jury.
I shall now consider the four grounds of attack upon the judgment mentioned at the outset.
(1) There is no variance in the proof from the crime charged in the indictment. The property claimed to be the subject of the larceny was definitely described in the indictment and the proof clearly established the material allegations of the indictment.
(2) The ruling of the trial court in receiving the evidence of all the property taken by the defendant, of which that described in the indictment was a part, was right, and did not constitute an infraction of the general rule forbidding proof of crimes *851other than that charged in the' indictment. This evidence simply involved the proof of an inseparable part of the whole transaction, and we may call it proof of “ inseparable elements of the deed,” or “concomitant parts of the criminal act,” without offending Professor Wigmore (1 Wigm. Ev. § 218).
(3) That portion of the testimony of the defendant given in the discovery proceedings in the Surrogate’s Court, introduced in evidence by the district attorney, was not objected to, upon the trial, upon the ground that its reception would violate section 2443 of the Penal Law, or any other provision of law. But assuming, without deciding, that the testimony was incompetent, it did the defendant no harm. Substantially every thing that was shown by the People, by means of this testimony, was shown by letters, checks, receipts and other evidence, beyond controversy. In this connection it may well be observed that the counsel for the defendant made the first use of the discovery examination of the defendant of any consequence when he cross-examined Joseph McLean.
At this time attention is called to the fact that the record upon which this appeal is prosecuted was made up carelessly, and in many instances what appears at the head of a page to be a “direct examination” is in fact “cross-examination,” as witness these examples: In the People’s case, from folio 144 to folio 157, Mr. Vollertson’s cross-examination is headed “direct;” from folio 167 to folio 171 the cross-examination of George J. Keyes is headed “ direct; ” from folio 183 to folio 195 the cross-examination of Myron W. Greene is headed “ direct; ” from folio 219 to folio 225 the cross-examination of Esther Marks is headed “ direct; ” from folio 251 to folio 273 the cross-examination of Joseph McLean is headed “ direct; ” and from folio 369 to folio 375 the cross-examination of Nellie- M. Smith is headed “direct.”
(4) The defendant complains because the district attorney introduced in evidence the complaint and answer in the action brought by the executor against the defendant and others to recover for the alleged conversion of the securities in question. The district attorney stated that the pleadings were not offered to -show the truth or falsity of any allegations set forth in the complaint nor as evidence of conversion on the part *852of the defendant, hut to show the claim that was made in the action that was about to be tried when the defendant took his flight, and to show, further, by the allegations in the complaint and the admissions in the answer the fact that the defendant was the agent of Mrs. Newcomb. I think the evidence was clearly competent to show that the claim was pending and about to be pressed against the defendant when he left the country. The admissions would seem to have been technically incompetent by reason of the last sentence of section 523 of the Code of Civil Procedure which reads as follows: “A pleading cannot be used, in a criminal prosecution against the party,- as proof of a fact admitted or alleged therein.” That . objection was not raised upon the trial and is urged upon this appeal for the first time. Assuming, without deciding, that the competency of the evidence may be questioned here and that it should not have been received, the ruling of the trial judge was harmless because other evidence in the case proved the agency beyond the shadow of a doubt.
Juries, in our system of jurisprudence, are credited with a reasonable amount of intelligence and in these days we cannot assume that they lack judgment and common sense. In this case the jurors were advised that a grand jury, a body of sworn officers of the law, had charged this defendant with the crime of which he stands convicted. The indictment was before the court and what it charged was stated to the jury, not as evidence of the truth of the charge, hut as the justification for the presentation of the defendant for trial. The jury were instructed that the indictment was no evidence of .the defendant’s guilt. When these pleadings were offered in evidence they were offered with the distinct statement by the district attorney that the complaint was not offered as any evidence of the truth of the charge. The jury knew what the charge was. How then could the defendant have been prejudiced by the introduction of the pleadings in evidence ?
It may be said generally in the case that' the testimony of the defendant in the discovery proceedings and his answer in the action were clearly more beneficial than harmful to him in any view of the case. He was not sworn upon the trial, but in both of these pieces of evidence he had the benefit of his *853sworn denial of the crime with the commission of which he was charged in the indictment.
I think the judgment of conviction should be affirmed.