Section 1250 of the Penal Law of this State provides, in so far as we are concerned here, as follows: “ A person who willfully * * * seizes * * * or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, * * * against his will * * * is guilty of kidnapping.” And again (Penal Law, § 2): “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a ‘ principal.’ ”
The defendant was indicted by the grand jury for the crime of kidnapping John J. O’Connell, Jr., on July 7, 1933, in the county of Albany. That this man was kidnapped by a band of confederates, and that the crime was committed in the city of Albany, no one has assumed to deny. It was not necessary to convey him to New York, or to any other place, to consummate the felonious act. The statute says, “ seizes * * * with intent to cause him * * * to be secretly confined.” When he was seized with that felonious intent, the crime was complete. These observations, of course, are academic; but I fear their significance is not being given full force in this decision; and the contention that the crime was a “ continuing ” one until release was effected, so as to admit evidence otherwise clearly inadmissible, is wholly without foundation.
There are other facts in the case which are relevant, to prove intent and motive, which no one disputes; although they form no part of the act constituting the crime. These are that ransom for the release of the victim was demanded by the kidnappers, and was paid; that, to extort the ransom, letters were written by the criminals to relatives of the captive, and were received and acted upon by them. Thus there is left for inquiry only the single question, viz., the identity of the defendant as one of the confederates that seized Mr. O’Connell with the felonious intent mentioned.
There is no direct proof in the record that the defendant did or did not take part in the actual seizure, or that he was or was not present when the crime was committed. The defendant himself *419did not take the stand. Therefore, it is necessary that there be proof in this record from which it may be inferred beyond a reasonable doubt that the defendant did participate in the seizure, or there must be proof, that he aided or abetted therein, or counseled, induced or procured another to seize Mr. O’Connell.
There is direct evidence in the case that the defendant presented to his confederates the scheme to kidnap John J. O’Connell, Jr., and that he promised to formulate and execute the plan to accomplish that purpose. Of course, such a plan and purpose were carried out. There is also direct evidence in the record that the defendant, in the company of these confederates, came to the victim while he was imprisoned, and while he was to some extent blindfolded and was handcuffed to a bed, and required him to give the names of persons to act as intermediaries between the kidnappers and his relatives, and thus aid in forcing the payment of the ransom; and that the victim was dragooned by some of these confederates to sign blank sheets of writing paper upon which ransom notes, so called, were to be written above his signature; that such writings were received by relatives through the mail, as well as from the defendant personally; and that ransom was delivered to the defendant and his attorney for payment to the kidnappers; and that as a result of the extorted payment Mr. O’Connell was released.
The identity of the defendant as one of the kidnappers was further made evident, if not satisfactorily established, by circumstantial evidence. Handwriting experts of good repute, long and widely known as such, gave evidence that at least some of the letters demanding ransom for the release of the captive were written by the defendant. Even defendant’s own expert on handwriting gave support to this conclusion.
It is my judgment that in this state of the record, despite the contention of the defendant that the direct evidence of his identity, was weakened on cross-examination or by the testimony of Ms attorney, the court cannot hold, as a matter of law, that the defendant’s guilt has not been shown beyond a reasonable doubt. On the contrary, the defendant himself, in the first point of his brief, concedes there is a question of fact here. And, of course, if there is a question of fact here, it is almost academic that it is not the province of tMs court to resolve it; the law assigns that duty and that power to the jury.
It is urged in reversmg the judgment that several errors were committed that prevented a fair trial, and justify a reversal. I shall briefly refer to a few of these contentions for which no authority is given, and somewhat more at length to those where cases are cited. It is said that it was error for the jury to have used a mag*420nifying glass in the jury room. There was no proof nor claim that it was anything else. If it were used by the jurors, it but made the truth more evident to those who had need of it., I regard the objection as mere quiddity. (Gaffney v. People, 50 N. Y. 416, 423, 424.)
It is urged that the county judge was disqualified to try the defendant on the charge of a former conviction, because he had been United States Attorney for the Northern District of New York at a time when a Federal grand jury returned an indictment against the defendant for burglary. The judge did not prosecute the indictment, and had withdrawn from that office before the defendant was tried thereon. He was later convicted. The “ cause or matter ” before the county judge involved the sentence herein, not burglary, nor a companion nor a kindred cause or matter. (Judiciary Law, § 15.) On the trial of the information here there was no inquiry then into the acts or conduct of the defendant, as to whether he was or was not guilty of burglary, or other crime, but whether he was the person who had been convicted of a certain felony. The matter under investigation was one of identity; and the issue to be decided by the jury was whether the defendant was the same person mentioned in the record set forth in the information. (Penal Law, § 1943.) The case of People ex rel. Kennedy v. Gill (147 App. Div. 924), cited in the prevailing opinion, appears not to be in point in any degree. There a surrogate assumed to sit in a matter involving the amount and value of the assets belonging to an estate. He had previously acted as attorney in a proceeding in the same estate where the amount and value of the same assets were involved, and the court held that at least one issue in the two proceedings was identical, and that in effect “ the two proceedings may reasonably be regarded as one.” The courts are not called upon by the statute to resort to fine-spun theories and prophylactic construction to slacken the punishment to be imposed on one whom, upon a fair trial and sufficient evidence, a jury has found to be a felon for the second time.
The prevailing opinion quotes a substantial article from a newspaper, which purports to be a direct statement by the victim, in the first person, after Ms release. The trial judge on cross-examination permitted a question wMch incorporated this newspaper article to be put to the witness orally, before the jury, as a contradictory statement out of court. No foundation of any character had been laid for such a question. While the trial judge has a large discretion in the matter of cross-examination, I regard the ruling in this instance as generous to the defendant much beyond what is called for by any rule of law. The witness denied that he made *421the statement, or was the author or source of the article, and even characterized parts of it as false; and no attempt was made otherwise by the defendant to prove its truth, or to prove that the witness made or authorized it. But despite these facts, this newspaper article is now quoted on this review as a basis to discredit the testimony of a witness whose respectability is not in question. This amounts to a sweeping aside of the law of evidence. To this I cannot consent.
Subsequently when a similar question, in like circumstances, was about to be put to another witness, incorporating a like newspaper article, the trial judge refused to permit the reading of the article before the jury as a part of the question; but he suggested that it be marked for identification, and the witness be allowed to read it silently. The majority opinion holds this ruling to be error, and then adds, “ the statements were made or this reputable newspaper was guilty of an intentional misstatement.” I cannot agree with either the law of the criticism, or the logic of the assertion. (Gaffney v. People, supra, 416, 423, 424; Romertze v. East River National Bank, 49 N. Y. 577; Novogrucky v. Brooklyn Heights R. R. Co., 125 App. Div. 715; Conrad v. Griffey, 16 How. [U. S.] 38, 44; Richardson Ev. [4th ed.] p. 444.) The contents of the document in question detailed facts in issue, and relevant thereto. It was the clear duty of the trial judge to prevent the reading before the jury of this document which was not in evidence, and the truth of which not only had not been proved, but had been disproved.
The main ground, however, advanced by the majority for a reversal of the judgment is the ruling of the trial court which excluded statements made by the defendant to his attorney, Snyder, in his own favor, while in New York and on his way there with the ransom, three weeks after the kidnapping. To justify this view, it is said that the crime was “ still continuing,” and that these statements were “ verbal acts ” (an aspect of res gestse), and were admissible to show intent. The question here is not one of local jurisdiction, or of determining the place of trial, but of evidence. And the charge of the trial judge that the crime was a continuing one does not make the law of the case in a criminal action so as to enlarge the defendant’s rights under the Penal Law, or so as to permit or to require the introduction of evidence that would be inadmissible otherwise. As before indicated, the defendant was on trial for kidnapping in Albany, not for any act done in New York or elsewhere in releasing the prisoner. The intent with which the defendant spoke or acted in his own favor at this late time was not in issue, nor relevant thereto. Evidence of any relevant act or statement done or spoken in New York by the defendant long *422after the crime, of necessity, would tend to inculpate him, or would be in his own favor. The former would be admissible against him, the latter clearly inadmissible for any purpose. It was the identity of the defendant as one of the men responsible for seizing Mr. O’Connell that was in issue. But to support the theory mentioned five cases are cited. Four of these were actions for libel, and one for an injunction and damages. In the first, Bishop v. New York Times Co. (233 N. Y. 446), the corut held merely that certain statements and acts of third persons and acts of the plaintiff were not admissible on the question of damages; although the dissenting opinion (p. 461) cited the four other cases referred to as illustrations of res gestse, or verbal acts, and their bearing on the question of damages. In these other libel cases of Hubbard v. Allyn (200 Mass. 166, 174; 86 N. E. 356); Weston v. Barnicoat (175 Mass. 454, 456; 56 N. E. 619) and Cyrowski v. Polish-American Pub. Co. (196 Mich. 648; 163 N. W. 58) statements by other persons were admitted in evidence in connection with their refusal to deal or associate with "the plaintiff on account of the libel, to show the damages sustained. In the injunction case (Hine v. N. Y. Elevated R. R. Co., 149 N. Y. 154, 162) it was held that statements by tenants when refusing to retain their apartments at the same rent because of the presence of the elevated structures, were admissible to prove loss of rental value. It is quite clear that these cases are not authorities for the admission of statements of the accused, made three weeks after the crime to be proved, on the question of identity. And the fact that it is now contended that the defendant was the “ agent ” of a relative of the victim in delivering the ransom and securing the release, in no way altered the situation. This action is not one between the O’Connells and the defendant. It is the rights of the State that are being prosecuted. None of those persons were agents of or represented the plaintiffs, the People of the State of New York.
On the same general question the prevailing opinion cites People v. De Simone (225 N. Y. 261). That case held admissible a statement tending to the identification of the defendant when made by one of a crowd, within a space of seconds after the shooting, as one of the “ circumstances ” surrounding the shooting. The inapplicability of this case is evident. In the same connection four decisions of foreign jurisdictions are cited: Grimes v. State (68 Ind. 193, 195); Brown v. State (74 Tex. Cr. 356; 169 S. W. 437); Garber v. State (4 Coldw. [Tenn.] 161, 165, 169); Crenshaw v. State (205 Ala. 256; 87 So. 328, 330). But none of these cases has the remotest application to the one under review. In each one of them the hearsay evidence was admitted to prove unpremeditated acts and *423declarations made before the crime was committed, and which tended to show the absence of felonious intent or evil purpose.
No one would question that the ruling last mentioned excluded only statements that were clear hearsay, and that those statements were made by the defendant long after the crime under investigation; but their admissibility is urged on the ground that the statements were part of the res gestae, “ verbal acts.” It would be idle to assert that the facts, of which proof was offered, followed so closely upon the act of “ seizure ” as to form part of it. The limitations upon this class of proof have become now so well established by innumerable decisions in this State as to be beyond serious contention. Such statements or acts following the actual commission of the crime, to be evidence in a criminal trial, as a part of the res gestae, must be so closely connected with it as to constitute a single transaction; must be natural and instinctive; must be so connected with the act charged in the indictment as to be calculated to elucidate and explain its character and quality, and derive credit from and be a reflection of the act charged; must be spontaneous to such a degree as to exclude reflection, or the inference of fabrication, or an opportunity therefor, a “ verbal act ” not dependent entirely on the veracity of the witness, not a mere answer to an inquiry, nor a narration of a past event. A few of the cases in this State that place these principles upon a firm foundation are noted (People v. Sprague, 217 N. Y. 373; People v. Curtis, 225 id. 519; People v. Del Vermo, 192 id. 470; People v. Chapman, 191 App. Div. 660; Wharton Cr. Ev. [8th ed.] §§ 691, 692). To these may be added other cases in tort (Greener v. General Electric Co., 209 N. Y. 135; Waldele v. N. Y. C. & H. R. R. R. Co., 95 id. 274; Luby v. Hudson River R. R. Co., 17 id. 131; Eastman v. Boston & Maine Railroad, 165 Mass. 342; 43 N. E. 115; Barker v. St. Louis, I. M. & S. R. Co., 126 Mo. 143; 28 S. W. 866).
The record contains ample evidence to warrant the verdict, if believed by the jury. After all the evidence was in, the defendant through his experienced, learned and unusually able counsel, expressed his satisfaction with the charge of the court and with the jury. He admits that there is a question of fact in the case. As pointed out, there was no error committed on the trial which affected a substantial right of the defendant. (Code Crim. Proc. § 542.) The judgment should be affirmed.
Bliss, J., concurs.