It is well at the outset to examine the jurisdiction of our court on this appeal. It is purely statutory and has been discussed many times by the appellate courts of this State. It is found under sections 527 and 542 of the Code of Criminal Procedure. Section 542 provides: “After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” Section 527 provides that the appellate court may order a new trial if it is satisfied that “ the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether any exception shall have been taken or not, in the court below.” To summarize, we are to do substantial justice. We must neither magnify inconsequential mistakes into reversible errors nor ignore those which have substance.
The jury are the judges of the facts and an appellate court should not substitute its judgment of such facts for that • of the jury. “ Extensive as is the power of review vested in this court on an appeal from a judgment of death, the law does not intend to substitute the conclusions of fact which may be drawn from the evidence by seven judges for the conclusions of fact which have been drawn from the evidence by twelve jurors, unless we are clear that the view of the facts taken by the jury is wrong. It is our duty to affirm, if the trial was fair and without legal error and the verdict was not against the weight of evidence. We are to see to it that the trial was fair and that there was sufficient evidence, within recognized rules of law, to support the verdict; this done, the responsibility for the result rests with the jurors.” (People v. Becker, 215 N. Y. 126, 136.) “ But the rule is now firmly established by repeated decisions of this court, that in exercising the jurisdiction conferred by section 528 of the Criminal Code in capital cases, we shall be governed by the practice regulating the review of questions of fact upon appeal to the Supreme Court, and that in such cases, if there is a fair conflict in the evidence or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.” (People v. Taylor, 138 N. Y. 398, 405.) “ The weighing and consideration of the evidence is the jury’s peculiar province, and it is almost elementary that an appellate court cannot disturb its finding where the issues were properly submitted to it as in this case, and particularly in a charge of the court to which no exception was taken.” (People v. Raizen, 211 App. Div. 446, 452.)
*425The trial below stands unchallenged by the appellant as to its fairness. The jury was carefully selected and it is not urged that it was moved by passion, prejudice or any other improper motive. The charge proper was clear and without exception. The appellant was represented by experienced and able trial counsel. Upon this appeal experienced counsel represent the appellant who concede in the first point in their brief that a question of fact was presented for the jury’s determination. The issues of fact have been resolved by the jury against the appellant, and it is not urged that the verdict was against the weight of the evidence.
The appellant makes three points upon this appeal, first, that the evidence presented an exceptionally close question of fact; second, that the court below erred in charging with relation to cumulative evidence; and third, the misconduct-of the jury in using a magnifying glass during its deliberations.
The prosecution based its case in chief upon the evidence of the witness Gross, who identified the defendant as one of the participants when the crime was planned as the instigator of it, the evidence of the victim himself, who identified Strewl as having been present in the room where he was confined and the evidence of the handwriting experts who identified Strewl as the author of the ransom notes. Two of these portions of the testimony were direct and the third was circumstantial. Gross testified that Strewl was present in the Century Hotel in the city of New York and there planned the kidnapping. There were four other men besides Gross in the room at the time. This evidence is direct and positive and stands uncontradicted in the record. None of the others present on this occasion were called. Had they been available the People could not have compelled them to testify against themselves and the appellant neither called them nor showed any effort to produce them. It is likewise undisputed that in August, 1933, immediately after he learned of the kidnapping, Gross voluntarily went to the American Consul at Windsor, Canada, and revealed this transaction to the American Consul. He later reported it to persons in the employ of the United States Department of Justice. The prosecution could not have shown this fact by the Consul or by any of such persons to whom Gross delivered the information. Their names were given upon the trial by Gross but none of them were called by the appellant to contradict Gross and no effort was made to produce them, although the trial lasted for over two weeks. While the past record of the witness Gross left much to be desired, nevertheless, as was said by the Court of Appeals in People v. Arata (255 N. Y. 374): “ Contradictions and polluted sources do not avail without more to vitiate the judgment or to induce a belief *426that the defendant should go free, for the polluted sources were as obvious to the jury as they are to an appellate court.” (p. 376.) “ There can be no reversal of the judgment without breaking down the barriers that separate the functions of a jury from those of an appellate court.” (p. 375.) And in People v. Cohen (223 N. Y. 406) the same court said: “ For it is also to be remembered that in fixing the blame for such a crime as we are here considering the State is not likely to discover witnesses of high character.”
Gross also testified that at the meeting in New York, where the crime was planned, John Oley was with Strewl. O’Connell, the victim, testified that three men who took part in the actual kidnapping and in seizing him were John Oley, Francis Oley and a man named Geary. Daniel P. O’Connell testified that John Oley was with Strewl when they met in the Ten Eyck Hotel and that John Oley stated that he came as a friend of Strewl because he was afraid that he, John Oley, and his brother, Francis Oley, might get into trouble because they were marked by the police as the kidnappers. Snyder testified that John Oley loaned him and Strewl the car with which to make the trip to New York with the ransom money and to get the victim. Snyder used the Oley speakeasy as a place to meet Strewl and on one occasion Francis Oley instead of Strewl, with whom Snyder had an engagement, met him there. Snyder, Strewl and the Oleys were associates of long standing and in constant contact with each other while young O’Connell was being held captive. O’Connell’s identification of the two Oleys and Geary as participants in the actual kidnapping is uncontradicted, as is also the identification of John Oley by the witness Gross.
The victim himself positively identified Strewl as having come into the room where he was held under guard late in the afternoon of the day following the seizure. The captive testified that he was lying on his back on a bed with bis left arm attached to the bed with handcuffs and with a bandage over his eyes and that he could see distinctly from under the bandage. This bandage came down to apparently the middle of his nose and he could see outside of each corner of it. He said Strewl came into the room and asked him to name some go-betweens; that Strewl walked right into the room and sat down on the bed and that he could see him from under the bandage. Strewl then went out of the room and came back again and asked O’Connell for some more names and when he told him he could name no more, 'Strewl told him that he better get in touch with his uncles. Strewl again left the room and then one of the guards came in the room and the victim saw him. He said that it was one of the guards that was with him all of the time he *427was there. He testified that the next morning these guards changed the bandage and put cotton up under it alongside of his nose and put more adhesive tape on it, telling him that he must have been able to see because they could see him looking. On a later occasion O’Connell heard Strewl present in the room and recognized him by his voice. It is urged that it was impossible for the victim to have seen Strewl there in the place of confinement. The reply is made that O’Connell not only identified Strewl as having been in the room but he also described in great detail the other two men as well as the room itself, its bed, the dressers, window shades, curtains, mg, the grimy walls and the clean place where a crucifix had previously hung. It is likewise urged that O’Connell, on cross-examination, stated that he could not have any way of telling time as he had no watch, could not see anyway, or could not see the watch if he did have one. The witness said that he did not mean this answer in the sense that counsel for the defendant took it, that he meant he did not have a watch to see the time and that he could see when he was lying down on the bed.
Coming now to the authorship of the ransom letters, three nationally known handwriting experts were called by the People and each testified that the defendant Strewl was the author of these letters. The handwriting expert called by the defense was completely discredited. Shortly after the crime the ransom letters together with the standard specimens of writing and printing of the defendant had been submitted to him and he had given the district attorney a written statement to the effect that the defendant was the author of these ransom letters. Thus all four of the experts, three called by the People and one called by the defendant, had named Strewl as the writer of the ransom letters.
In his defense appellant offered three witnesses, the assistant district attorney, Casey, who was really recalled for further cross-examination; the handwriting expert, Hamilton, and the lawyer, Snyder. The evidence of the handwriting expert, Hamilton, has already been referred to. Snyder’s testimony dealt only with Strewl’s activities as the go-between, and the release of the victim.
The identification of Strewl as the one who planned the crime, was present in the kidnapping chamber and wrote the ransom letters is positive. In addition there is also the proof of Strewl’s activities in conducting the negotiations between the members of the victim’s family and the kidnappers and obtaining the release of the victim. It is conceded by Strewl’s counsel that Strewl knew then and knows now who the actual kidnappers were, and that he made no effort whatsoever to inform the authorities as to their identity.
*428From this brief résumé of the proof it is quite apparent that the evidence amply sustains the verdict and that the appellant’s first point is without merit.
The witness Snyder, who was Strewl’s lawyer and claimed to be protecting Strewl’s interests in the negotiations and release, was not permitted to state what his client said to him on various occasions during these negotiations when no one else was present. These statements were objected to and excluded as self-serving. Such statements were clearly self-serving. “ The unsworn statements of a party offered as proof of the fact asserted in the statement are admissible against him as admissions under an exception to the hearsay rule, but such statements are not admissible in his favor, as there is no exception in such case. Statements of a party offered in his own favor are termed self-serving declarations.” (2 Ford Ev. 914, § 175.) The majority hold that they should have been admitted as a part of the res gestee and that failure to receive them was reversible error. At the time these statements were made the crime of kidnapping was then complete although the victim had not yet been released. There was every inducement for Strewl to conceal his true relations with the other kidnappers. It is not reasonable to suppose that he would tell Snyder the true facts ■unless Snyder was also a participant in the crime. With this motive for concealment and ample opportunity to make his own statements fit his own purposes they lacked that spontaneity which is the truth-giving factor to such unsworn statements and which makes them an exception to the usual rule of exclusion. An analogous situation existed in People v. Sprague (217 N. Y. 373). There the defendant had been convicted of murder in the first degree. The People were permitted upon the trial to show that the deceased after having been shot, declared to the first person seen by him after the shooting that the defendant had shot him. The Court of Appeals wrote (at p. 379): “ In the case we are now considering the declaration was not so spontaneous or natural as to exclude the idea that it was the outgrowth of the threat made to the deceased by the appellant that he would get a gun and shoot him, or the idea that the deceased fabricated it. The space of time between the shooting and the declaration was considerable. The distance traveled by the deceased in going to the doorway, where the declaration was made, from where he was when shot, was substantial. The declaration was called forth by the inquiry: 1 What is the matter,’ and was distinctly narrative. The declaration made under such conditions was wholly untrustworthy and should not have been received.” (See, also, People v. Chapman, 191 App. Div. 660.)
*429If we assume without conceding that these unsworn statements by the defendant were a part of the res gestae and, therefore, admissible, the ruling of the court below did not affect the substantial merits of the case. These statements had no bearing upon the real questions of fact here, viz., the identification of the defendant by Gross; the identification of the defendant by O’Connell, the victim; and the identification of the defendant as the author of the ransom letters. Giving the defendant the benefit of anything that he might have said to his lawyer, Snyder, on these occasions, such statements could have had no bearing upon any of these three features of the case against the defendant or upon his actual guilt or innocence of the crime charged.
The majority opinion quotes at length from a news item published in the Albany Times Union shortly after the victim was released by the kidnappers. This article was not received in evidence. It was read in full by counsel for the defendant to John J. O’Connell, Jr., upon cross-examination and this witness said that he did not make the statement; that some parts of such statement were true, and that parts of it were not true at all. He was not asked to point out the various portions which were true and those which were false. When the witness Daniel P. O’Connell was being cross-examined, counsel for the defendant first started to read the newspaper statement to the witness and ask him if he made such statement to a reporter. The court, upon objection by the district attorney, ruled that the defense counsel should show the article to the witness instead of reading it before the jury. Counsel then proceeded to read to the witness portions of the article and ask him if he made such statements. The witness denied having done so. He said that he did not give out such a statement, that he did not give out a prepared statement and did not authorize anybody to give out a prepared statement. After having thus partially laid the foundation for impeachment the defendant failed to call as a witness the newspaper reporter to whom such statement purported to have been made and failed to show why he did not call such reporter. As to the possible effect of this ruling upon the jury, counsel for the defendant actually read the entire article before the jury to the witness John J. O’Connell, Jr., when cross-examining him so that its full effect was before the jury even though the article itself was not in evidence. The defendant was not prejudiced by this. That the statements to the reporter might have been privileged is urged as an explanation of the failure of the defense to call the reporter. No such privilege exists or ever did exist in our law. (People ex rel. Mooney v. Sheriff of N. Y. County, 269 N. Y. 291.)
*430Another error alleged by the appellant is that a reading glass was taken into the jury room by one of the officers with the exhibits and apparently there used by some of the jury in examining the exhibits. In any event it in no way affected the substantial rights of the defendant. The first mention of the reading glass is found in the evidence of the defendant’s handwriting expert, Hamilton. While he was being cross-examined he was shown an exhibit and asked whether he had seen it before or not. He then, without objection, took a magnifying glass from his pocket and examined the exhibit. Immediately thereafter he was shown another exhibit and asked to identify it and he then examined this exhibit with the glass. The glass itself is an ordinary, small-sized reading glass such as is in common use as an aid to reading fine print or for slightly enlarging objects. There could be no more harm in the jury using it than for the witness to use it while testifying. Only the true facts could be revealed by the glass. The jury by using it could see only what was actually there to be seen. Under these circumstances the use of this glass by the jury was not misconduct.
The defense took no exceptions to the charge in chief. At its conclusion and at the request of the defendant the court charged that if the People had not accounted satisfactorily for their failure to call any material witness whatever, the jury might presume that if that witness were called he would testify unfavorably to the People. The court charged this in a manner that was satisfactory to the defendant. Then at the request of the People the court charged that this rule did not apply to any testimony or to any evidence of a person whose testimony might be cumulative. The appellant claims that this was error. It is argued that the prosecution did not call all of the detectives who were present at the time the defendant was apprehended and he gave the specimens of his handwriting. One of these detectives was sworn, the- others were not. The one who was sworn gave a complete detailed account of all that transpired on these occasions. Of necessity, had the others been sworn, they would have been compelled to repeat the same transactions. This would have but added to the length of the trial and served no useful purpose. The appellant says that this failure to call such additional detectives was prejudicial to him in that he was not afforded an opportunity to cross-examine them. There is no duty upon a party to call a witness simply to give his adversary an opportunity to cross-examine such witness. The charge in the form originally requested by the defendant and as made, was too broad and should have been refused. There was no error in the modification. (Van Wicklen v. Van Wicklen, 142 App. Div. 507.) The appellant makes no other objection to the charge.
*431The majority opinion states that the comparison of the ransom notes with the standards does not convince one beyond a reasonable doubt that the defendant wrote the ransom notes. This argument might well have been addressed to the jury, as indeed it was, but that is not the rule to be followed by this court in the consideration of this appeal. “ This court has no power to interfere with the judgment merely because it may entertain a reasonable doubt upon the evidence. The determination of that question is within the province of the jury.” (People v. Long, 150 App. Div. 500; affd. without opinion, 206 N. Y. 693.)
This trial lasted many days. A clear issue of fact was presented. The jury’s verdict is supported by the great weight of the evidence, much of which in its most salient features is uncontradicted. No substantial error which authorizes us to disturb the jury’s verdict has been pointed out. Under these circumstances we have no power to reverse. The judgment of conviction should be affirmed.
As the majority of our court is reversing the judgment of conviction below and ordering a new trial it is unnecessary to discuss the proceedings relating to sentence.
McNamee, J., concurs.
Judgment of conviction reversed upon the law and facts, and in the interests of justice, and a new trial ordered.
Hill, P. J., Rhodes and Crapser, JJ., concur; McNamee and Bliss, JJ., dissent.