(dissenting). One Fielding, who was deputy commissioner of a city department of Brooklyn, was indicted and tried for having knowingly approved a false claim against the city. On the trial the defendant was a witness for the people, and is charged with having then falsely testified that he did not remember having had any conversations with Fielding in reference to matters material to the *617issue then being tried. The indictment sets out the alleged false testimony in detail, and negatives the truth of such testimony in every particular. I do not deem it necessary to here point out the charges of the indictment more specifically, because, in my judgment, there were errors committed at the trial which compel a reversal of the conviction, and therefore the question whether the evidence establishes the guilt of the defendant need not be gone into. Every person charged with crime is entitled to a fair trial, and,, however guilty he may be, his guilt must be established by proper and competent evidence. Every improper statement of a prosecuting officer, made during the trial, which is calculated to influence or prejudice the minds of the jury against the accused, and each item of incompetent evidence having a tendency to lead them to conclude that he is guilty of the crime charged, because he has committed other offenses, constitute imperative reasons for reversing a conviction, whether upon the whole case the accused appears to be guilty or not. People v. Fielding, 158 N. Y. 553, 53 N. E. 500, 46 L. R. A. 641, 70 Am. St. Rep. 495; People v. Mull, 167 N. Y. 248, 60 N. E. 629. In his opening address to the jury the district attorney was permitted, notwithstanding objections and exceptions, to say many things to the prejudice of the defendant which were not and could not by any possibility be properly proved. It must be borne in mind that on this trial the sole inquiry was whether, in truth and in fact, the defendant did remember certain conversations with Fielding, which he declared on that trial that he did not remember, and to which he had testified before the grand jury which indicted Fielding. The following are examples:
“He [defendant] had to give bribes. He had to give ten per cent, to a man named Milne. He had to pay ten per cent, to Knapp, who was the water purveyor. He had to pay five per cent, to Jensen. AH these men could hold up bills unless they got their tribute. He carried out his end of the contract, and they did their end of the work. * * * He had gone before the grand jury, and it had indicted his old friends and confederates, and after that he had gone on the witness stand and been denounced by counsel, and hammered and pounded on so it was burned into his memory so he would not forget it the next day or in a lifetime. What happened? The trials went on, and one man was sent out to the penitentiary. He pleaded guilty.” Again: “When tire time came to get certain work through in the sewer department he had to see a man named Goff, and Goff demanded fifty dollars a week; and he had to pay Goff and he did pay Goff fifty dollars a week, to overlook the work and let things go through.” Again: “In the investigation, when the various warrants turned up, this condition appeared: Thomas Fraser & Co. seemed to be the reposrtary of nearly all the warrants that came directly to Doody. Whether it will become necessary to show you this, I don’t know. But it will be revealed by Doody’s testimony that the warrants were signed Thomas Fraser & Go. * * * The question is, how far is the jury to be deceived, if he has attempted to deceive? Now, gentlemen of the jury, it will show to some extent the character of this man’s mind if you will follow it out. Why did he create Thomas Fraser & Co.? Why not take the warrants himself? AH the warrants given to Finkle, Heyward, and Crzzens all went to him. He will tell you that he got every cent of the $200,000, except the thirty-five per cent, he had to pay out under his agreement. Every dollar of it came to himself. Why run it down into this rat hole,—Thomas Fraser & Co.? Who was Thomas Fraser? In his testimony he attempts to say that Thomas Fraser is a brother of some banker in New York. He is asked: 'Did Thomas Fraser get any part of this? No, sir. Was the senior member of this firm anything to you? Yes, *618sir; a partner. Did he get any part of this? He, perhaps, did get two hundred dollars.’ It means that is a cover. Every warrant, when they came down to Eraser & Go., they will be up against a stone wall. Who is Tom Eraser & Co? He can’t be found.” Again: “Contracts made and money expended without any authority in law. What is the cause of it? They sent over to the district attorney’s office for an investigation, and the investigation proceeds to a certain stage, and immediately we are up against a stone wall. Who is Eraser & Co.? Who is Cozzens? Who is Einkle? And who is Heyward? But a little probing soon revealed in all this filth and rubbish' this man Doody. What was to be done? It was soon discovered he was the real criminal. He was the hub, and without him the spokes of the wagon could not remain on. We sent for his son, as his name appeared on some of the vouchers. It will appear by his father’s testimony that the son came before the grand jury, and he refused to answer. I show motive for the responsibility he was assuming, to show that, under that pressure of his son before the grand jury, he came before the grand jury himself. His son came before the grand jury, as Doody will tell you. The son refused to answer any questions, and was brought into court with the grand jury, and told to answer the questions, and sent back. An adjournment was had, and an arrangement was made whereby Doody was to tell his story of his criminality, and all his connection with the frauds, and the connection of everybody else. * * * He had purchased his safety at the expense of his old friends and confederates. He turned informer upon them, and thus saved himself from punishment for these crimes. Again: “That was his position in March, 1898, and on his testimony these indictments were all secured against these people. A short while after that, Milne, who had been his friend, came into court and pleaded guilty. He was the young inspector out on the works, to whom he had paid one hundred dollars. Milne pleaded guilty, and was sent to the penitentiary.”
These remarks, and others which I have not quoted, were highly improper, and well calculated to excite prejudice and harmful bias against the defendant in the minds of the jury. They were unrebulced by the court, and objections to them were overruled. The jury must have supposed that they were approved by the presiding justice especially as wholly incompetent evidence was afterwards admitted, against objection and exception, in proof of these statements. Statements of this character by the public prosecutor in criminal cases have been repeatedly condemned by appellate courts, and new trials granted because of them. People v. Smith, 162 N. Y. 520, 56 N. E. 1001; People v. Mull, 167 N. Y. 247, 60 N. E. 629; People v. Fielding, 158 N. Y. 542, 53 N. E. 497, 46 L. R. A. 641, 70 Am. St. Rep. 495. See page 547, 158 N. Y., and page 498, 53 N. E., 46 L. R. A. 641, 70 Am. St. Rep. 495, and cases cited; People v. Milks, 55 App. Div. 372, 66 N. Y. Supp. 889.
The only crime charged in the indictment being perjury alleged to have been committed in falsely testifying that he did not remember certain conversations with Fielding, the prosecution was allowed to prove, by reading from the testimony of the defendant before the grand jury, a number of other distinct and separate crimes, having no connection whatever with that under investigation. Among these are the following: That he paid one Phillips money to induce the commissioner of city works to aid him in defrauding the city; that he entered into corrupt agreement with one Willis, commissioner of city works, to defraud the city; that such agreement had been carried out, and the city actually defrauded of large sums; that he entered into a corrupt agreement with -one Knapp, who was water purveyor *619of the city, by which the city of Brooklyn was defrauded; that he had bribed the commissioner of city works to allow him to defraud the city; that he paid one Milne, who was an inspector of the department of city works, the sum of $100 on each warrant he received in payment for the work done by him for the city of Brooklyn, for certifying that the work was done properly, although such work was not examined by Milne; that he entered into a corrupt agreement to pay and did pay one Jensen, who was a clerk in the comptroller’s office, $200 on each of these warrants, to induce said Jensen to mark the same “Correct”; that he entered into another corrupt agreement with Jensen by which he was to pay and did pay to Jensen 5 per cent, on all bills rendered against the city of Brooklyn; that he paid to one Goff, who was superintendent of sewers in the department of city works, a bribe of $50 each week; that he paid various inspectors of the city works department from $5 to $10 at regular intervals, as bribes; that he paid one Clark, who was president of the board of aldermen, the sum of $500, as a bribe; that he made a corrupt agreement with one Leaycraft to bribe the aldermen of the city of Brooklyn to. pass his bills for cleaning snow from the streets.
Assuming that this evidence was pertinent to some inquiry then pending before the grand jury, it was clearly incompetent on this trial, and necessarily harmful to the defendant, by holding him up to the jury as one habitually guilty of defrauding the city of Brooklyn, and bribing its officials. Assuming, again, that the testimony of defendant before the grand jury as to his conversations with Fielding was competent upon this trial upon the question whether he did or did not remember them upon Fielding’s trial, the evidence should have been limited to that. His statements before that body concerning his connection with other crimes were inadmissible for any proper purpose. This evidence did not tend to prove a motive for committing the alleged perjury, nor the intent of defendant in committing it, nor identity; nor did it tend to¡ prove that the perjury was not accidental, nor that the several distinct offenses thereby proved were part of a scheme of which the perjury was also a part. In order to render proof of other crimes competent, it must fall within one of these requisites. People v. Molineux, 168 N. Y. 264, 61 N. E. 286. It was not rendered competent by showing it to have been testified to by defendant himself before the grand jury. It was simply proof of other and independent crimes, and does not differ, in respect to admissibility, from evidence of such crimes derived from other sources. To emphasize this evidence, indictments against these various parties were put in evidence, and proof was allowed, against defendant’s objection and exception, that one of the persons indicted (Milne) had pleaded guilty, and had thereupon been sent to the penitentiary. This, also, was error. The inquiry was whether the testimony of the defendant on the Fielding trial that he did not remember certain conversations with Fielding was false. The indictment against Milne was for conniving at the audit and allowance of a fraudulent claim against the city. What that claim was, does not appear. Neither Milne’s admission of guilt, nor the character of his punishment, were pertinent to the question of defendant’s perjury. Taken in connection *620with the evidence of this defendant before the grand jury as to his-transactions with Milne, above alluded to, it was thus made to appear that the defendant was guilty of the crime of bribing Milne, and that Milne had confessed it. The necessary effect of all of this evidence-was to incite in the minds of the jury a belief that the defendant was habitually criminal in all his dealings with the officials of Brooklyn,, and theréby the more easily to persuade them that he was guilty of the perjury with which he was charged. There is no conceivable connection between these facts, and the evidence was clearly inadmissible. People v. McQuade, 110 N. Y. 285, 18 N. E. 156, 1 L. R. A., 273 (see page 306, 110 N. Y., and page 165, 18 N. E., 1 L. R. A. 273); People v. Sharp, 107 N. Y. 466, 14 N. E. 343, 1 Am. St. Rep. 851.
The admission in evidence of the several indictments against Willis and Phillips for conspiracy, against Willis for bribery, against Knapp for conniving at the audit of a fraudulent claim, against Milne for the same offense, against Clark and Eeaycraft severally for accepting money to influence their acts as aldermen, and against Goff and' Jensen for accepting bribes, was improper. An indictment is a mere-accusation. It neither proves nor tends to prove anything, even, against the defendant named in it. Even a witness cannot properly-be asked whether he has been indicted, because an indictment furnishes no proof of guilt, and to permit an affirmative answer might improperly influence the jury against his credibility. Kober v. Miller, 38 Hun, 184, and cases cited. These indictments bore no relation to-any question involved in this trial. It was made to appear that they were found upon the evidence of the defendant above referred to, and’ which connected him with each of the offenses named in them. It is-obvious that this evidence could have had no other effect than to* improperly influence the minds of the jury against the defendant.
It was error, also, to permit to be read in evidence the remark oh the presiding justice on the first trial of Eielding concerning this defendant, to the effect that he was an unwilling witness. The opiniom of the judge, thus proved, that the defendant was reluctant to tell the truth on that trial, may well have influenced the jury to believe that he testified falsely on the second trial. People v. Hill, 37 App. Div. 327, 56 N. Y. Supp. 282; People v. Brow, 90 Hun, 509, 35 N. Y. Supp. 1009; People v. Corey, 157 N. Y. 332, 51 N. E. 1024..
Other errors are alleged, which it is unnecessary now to consider, inasmuch as those already mentioned require a reversal of the conviction.