Spring, J.:
The defendant was indicted by the grand jury of the county of Wayne charging him with an “ attempt to improperly influence ” one Abram Weed “ as a member of the grand jury, theretofore summoned * * * in * * * a certain criminal action then pending on complaint of one Michael Abert accusing one Dwight S. Chamberlain of the crime o'f assault in the third degree” which was about to be presented to the said grand jury. Said Chamberlain was a personal and political friend of the defendant and the latter apparently regarded the criminal proceedings pending against him actuated by spite. Abram Weed and the defendant had long-known each other and the former had been drawn as a member of the grand jury orf Wayne county which body was to convene on the 7th day of February, 1898, and the defendant'had read the name among the list of grand jurors published in a newspaper. .On the thirtieth of January Mr. Weed, while in the village of Clyde in that county, was accosted on the street by the defendant with the remark that he wished to liave a “little talk” with him. The defendant added that he noticed he had been drawn as a grand juror, and, as the weather was cold, suggested that they go into a store near by. They did so, the defendant buying the cigars for the two, and, as the store was somewhat crowded, they went into a storeroom in the rear part of the building. Weed, in his narration of what then occurred, testified : “ He spoke again of the cemetery case, and said Dr. Chamberlain — there is a sort of a spite, he says, against Dr. Chamberlain, and it is a case that will probably come up before the next grand jury, and he says, there is nothing in it; such a case, he says, it seems to me should not come before the grand jury, simply makes expense for the county. * * * But further than that, he said, he says the parties connected with it —he used the term disreputable — I can’t tell how, and then spoke of a woman that was simply a prostitute. As I said, there was not a name mentioned there with the exception of Dr. Chamberlain’s. When he spoke of a woman as a prostitute, I think he said she was some woman connected with that affair.”
The defendant did not contradict the substance of this conversation. It is, therefore, undisputed that he did ask Weed, knowing he was a grand juror, to go into the store, and that his only motive was to talk with him concerning the case against Dr. Chamberlain, [170]*170which was to be presented to the grand jury of which he was a member. The whole tenor of his talk was to influence the juror against the prosecution of the charge against Dr. Chamberlain. The defendant contends that he was not actuated by any improper motives in this endeavor, but his version of the occurrence in the main corresponds with that given by Mr. Weed.
The deiinition of the crime of embracery given in section 75 of the Penal Code reads as follows: “ A person who influences or attempts to influence improperly,'a juror in a civil or criminal action or jmoceeding, or one drawn or summoned to attend as such a juror * * * in respect to his verdict * *' * or decision in any ■cause or matter pending, or about to be brought before him,.in any •case, * * * is guilty of a misdemeanor.”
To- support the charge under this section it is not necessary that a proffer of money or other consideration be tendered to the juror improperly approached to influence his decision. The unlawful attempt is the gist of the action, and it was for the jury to construe the intent of the defendant in endeavoring to persuade, the juror that there was no merit in the charge against Dr. Chamberlain. The verdict is well supported -by the evidence and we see no reason for disturbing the judgment of conviction on the merits.
The indictment alleges that at the time of the commission of the said crime the attempt to influence improperly was made upon “said Abram Weed as a member of, the grand, jury, theretofore summoned,” arid later in the indictment is found the following: “ He, the ■ said William J. Glen, then and there well knowing that the said Abram Weed had been theretofore drawn and summoned as such grand juror as aforesaid * "x' *,” etc.
Weed had not then been formally “summoned” as a grand juror although his name had been drawn from the jury box and published in the list. The contention of the defendant is that the indictment does not aver that Weed-had been drawn as a member of the grand jury and as. he had not been summoned the variance of the proof from the indictment is substantial. Hnder the liberal construction now given to an indictment (Code Grim. Proc. § 285; People v. Clements, 107 N. Y. 205) the defect does not amount to a fatal variance. The evidence -without objection showed that at the time- of the conversation with Weed.the latter was in [171]*171■fact drawn as a grand juror, and the only significance in the ■■attempt of the defendant to influence him lies in that fact. While the averment quoted above alleging defendant knew that Weed had been theretofore drawn and summoned as such grand juror as aforesaid ” is indirect in form, it does charge the fact. It accuses him of an improper attempt to influence Weed as a member of the grand jury and sets forth in detail the facts to support that accusation.
In construing a similar criticism to an indictment, and disagreeing with the opinion in the same case in the court below, and which is cited on the brief of the appellant’s counsel, the Court of Appeals in People v. Clements (107 N. Y. supra), after alluding to the •objection urged against the indictment that it did not allege that the statements were in fact untrue, “ but only that the defendant well knew them to be untrue,” say (at p. 210): “A pleading is •deemed to allege what can by fair and reasonable intendment. be implied from the facts stated, and a general demurrer for insufficiency was not Sustainable on the ground that the facts were argumentatively or otherwise imperfectly or informally stated. The •objection to this indictment, if there be any, was that the falsity of the statements sworn to was only argumentatively alleged ; but that it was fairly, and even necessarily, to be implied from the facts ■stated is very clear. The objection goes only to the form of the allegation.”
The defendant had produced on the trial several witnesses to vouch for his previous good character. In commenting - upon this testimony the trial judge instructed the jury: “The object of that, gentlemen, is to raise in your mind this question; it doesn’t prove that lie didn’t commit this crime, because it is unfortunately too ■common an occurrence that a man of previous good character is led ■astray; but it brings home to you this question, and in that light you are to consider it, as to whether or not it is likely that a man of his standing, a man of his position, a man of his reputation, would be likely to commit a crime, would likely jeopardize the fruit and ■success which a long life of uprightness, integrity and industry had brought him.”
This instruction was not sufficiently favorable to the defendant. (People v. Hughson, 154 N Y. 153, 164; People v. Elliott, 163 [172]*172id. 11, 14) There was no exception to this portion of the charge,- and no request to charge otherwise was made. Had the attention of the trial judge been called to the true rule applicable to proof of this kind, it is fair to assume that he .would have conformed to it;
. While we might order a new trial by reason of this erroneous-instruction without an exception (Code Crim.
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Spring, J.:
The defendant was indicted by the grand jury of the county of Wayne charging him with an “ attempt to improperly influence ” one Abram Weed “ as a member of the grand jury, theretofore summoned * * * in * * * a certain criminal action then pending on complaint of one Michael Abert accusing one Dwight S. Chamberlain of the crime o'f assault in the third degree” which was about to be presented to the said grand jury. Said Chamberlain was a personal and political friend of the defendant and the latter apparently regarded the criminal proceedings pending against him actuated by spite. Abram Weed and the defendant had long-known each other and the former had been drawn as a member of the grand jury orf Wayne county which body was to convene on the 7th day of February, 1898, and the defendant'had read the name among the list of grand jurors published in a newspaper. .On the thirtieth of January Mr. Weed, while in the village of Clyde in that county, was accosted on the street by the defendant with the remark that he wished to liave a “little talk” with him. The defendant added that he noticed he had been drawn as a grand juror, and, as the weather was cold, suggested that they go into a store near by. They did so, the defendant buying the cigars for the two, and, as the store was somewhat crowded, they went into a storeroom in the rear part of the building. Weed, in his narration of what then occurred, testified : “ He spoke again of the cemetery case, and said Dr. Chamberlain — there is a sort of a spite, he says, against Dr. Chamberlain, and it is a case that will probably come up before the next grand jury, and he says, there is nothing in it; such a case, he says, it seems to me should not come before the grand jury, simply makes expense for the county. * * * But further than that, he said, he says the parties connected with it —he used the term disreputable — I can’t tell how, and then spoke of a woman that was simply a prostitute. As I said, there was not a name mentioned there with the exception of Dr. Chamberlain’s. When he spoke of a woman as a prostitute, I think he said she was some woman connected with that affair.”
The defendant did not contradict the substance of this conversation. It is, therefore, undisputed that he did ask Weed, knowing he was a grand juror, to go into the store, and that his only motive was to talk with him concerning the case against Dr. Chamberlain, [170]*170which was to be presented to the grand jury of which he was a member. The whole tenor of his talk was to influence the juror against the prosecution of the charge against Dr. Chamberlain. The defendant contends that he was not actuated by any improper motives in this endeavor, but his version of the occurrence in the main corresponds with that given by Mr. Weed.
The deiinition of the crime of embracery given in section 75 of the Penal Code reads as follows: “ A person who influences or attempts to influence improperly,'a juror in a civil or criminal action or jmoceeding, or one drawn or summoned to attend as such a juror * * * in respect to his verdict * *' * or decision in any ■cause or matter pending, or about to be brought before him,.in any •case, * * * is guilty of a misdemeanor.”
To- support the charge under this section it is not necessary that a proffer of money or other consideration be tendered to the juror improperly approached to influence his decision. The unlawful attempt is the gist of the action, and it was for the jury to construe the intent of the defendant in endeavoring to persuade, the juror that there was no merit in the charge against Dr. Chamberlain. The verdict is well supported -by the evidence and we see no reason for disturbing the judgment of conviction on the merits.
The indictment alleges that at the time of the commission of the said crime the attempt to influence improperly was made upon “said Abram Weed as a member of, the grand, jury, theretofore summoned,” arid later in the indictment is found the following: “ He, the ■ said William J. Glen, then and there well knowing that the said Abram Weed had been theretofore drawn and summoned as such grand juror as aforesaid * "x' *,” etc.
Weed had not then been formally “summoned” as a grand juror although his name had been drawn from the jury box and published in the list. The contention of the defendant is that the indictment does not aver that Weed-had been drawn as a member of the grand jury and as. he had not been summoned the variance of the proof from the indictment is substantial. Hnder the liberal construction now given to an indictment (Code Grim. Proc. § 285; People v. Clements, 107 N. Y. 205) the defect does not amount to a fatal variance. The evidence -without objection showed that at the time- of the conversation with Weed.the latter was in [171]*171■fact drawn as a grand juror, and the only significance in the ■■attempt of the defendant to influence him lies in that fact. While the averment quoted above alleging defendant knew that Weed had been theretofore drawn and summoned as such grand juror as aforesaid ” is indirect in form, it does charge the fact. It accuses him of an improper attempt to influence Weed as a member of the grand jury and sets forth in detail the facts to support that accusation.
In construing a similar criticism to an indictment, and disagreeing with the opinion in the same case in the court below, and which is cited on the brief of the appellant’s counsel, the Court of Appeals in People v. Clements (107 N. Y. supra), after alluding to the •objection urged against the indictment that it did not allege that the statements were in fact untrue, “ but only that the defendant well knew them to be untrue,” say (at p. 210): “A pleading is •deemed to allege what can by fair and reasonable intendment. be implied from the facts stated, and a general demurrer for insufficiency was not Sustainable on the ground that the facts were argumentatively or otherwise imperfectly or informally stated. The •objection to this indictment, if there be any, was that the falsity of the statements sworn to was only argumentatively alleged ; but that it was fairly, and even necessarily, to be implied from the facts ■stated is very clear. The objection goes only to the form of the allegation.”
The defendant had produced on the trial several witnesses to vouch for his previous good character. In commenting - upon this testimony the trial judge instructed the jury: “The object of that, gentlemen, is to raise in your mind this question; it doesn’t prove that lie didn’t commit this crime, because it is unfortunately too ■common an occurrence that a man of previous good character is led ■astray; but it brings home to you this question, and in that light you are to consider it, as to whether or not it is likely that a man of his standing, a man of his position, a man of his reputation, would be likely to commit a crime, would likely jeopardize the fruit and ■success which a long life of uprightness, integrity and industry had brought him.”
This instruction was not sufficiently favorable to the defendant. (People v. Hughson, 154 N Y. 153, 164; People v. Elliott, 163 [172]*172id. 11, 14) There was no exception to this portion of the charge,- and no request to charge otherwise was made. Had the attention of the trial judge been called to the true rule applicable to proof of this kind, it is fair to assume that he .would have conformed to it;
. While we might order a new trial by reason of this erroneous-instruction without an exception (Code Crim. Proc. § 527), as suggested by the counsel for the appellant, justice does not require ns to exercise that power. The defendant was convicted of a misdemeanor, but the offense is one which strikes at the integrity of our judicial system, and the proofs fully warranted the verdict of the jury. He is an intelligent man of experience, was ably defended by skillful counsel, the trial was fairly conducted, and there is no occasion for us to be lenient .to him in the way suggested, inasmuch .as the conclusion reached by the jury is- a just one from the evidence.
When the trial was moved in the County Court, a motion was made in behalf of the defendant to dismiss the indictment, based upon affidavits which were presented to the court. These affidavits show that during a Trial Term of the Supreme Court of Wayne county, the grand jury were considering the charge against Dr. Chamberlain, which was the subject of defendant’s alleged attempt improperly to influence the juror Weed. The justice presiding at the term learned of this attempt and alleged kindred efforts of other persons, and calling the grand jury before him, gave them instrnc-' tions and read affidavits to them. One of these was the affidavit of the juror Weed, which contained the substance of the facts subse- . quently testified to by him upon the trial of this action. ■ The- affidavit of another grand juror was also read by the justice presiding to - that body, tending to show the exercise of improper influence upon him in said Chamberlain matter, and also another affidavit of like import was. read; that the presiding justice commented with some severity upon this alleged endeavor to tamper with the jurors, and read to them section 75 of the Penal Code, defining the crime of embracery, and among other things, said: “ If what is charged in these affidavits shall be proven before your body, then it will be your duty to find a bill of indictment for this misdemeanor against the persons who are guilty.”
Many affidavits were read in the County. Court on the motion to dis[173]*173miss the indictment setting forth these facts in detail. The charge •of the learned judge to the jury as reported in the Rochester papers was also presented on this motion, although its accuracy was never •certified to by the learned justice presiding. The motion to dismiss was denied by the County Court, and appellant’s counsel now seek to review this decision, claiming that the trial justice transcended his •authority in reading these affidavits to the grand jury, and that-his direction to find an indictment if the facts contained in the affidavits were proven before them, is reversible error.
There is much contrariety of judicial authority as to the right to dismiss an indictment upon this ground or to review upon appeal an •order refusing to do so. Section 313 of the Code of Criminal Procedure provides that “ The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other.”
The two cases specified relate, first, to the form of the indictment, and second, where a person has been present during the session of the grand jury “ while the charge embraced in the indictment was under consideration.” The right to appeal is not a constitutional •one, but relates wholly to the procedure, and is, therefore, within the control of the Legislature. (People v. Dunn, 157 N. Y. 528, 539; People v. Petrea, 92 id. 128.)
Following along this line it has been, held that the cases in which an indictment can be dismissed having been prescribed, no other •can be read into the section. (People v. Petrea, 92 N. Y. 145, supra; People v. Rutherford, 47 App. Div. 209.)
Additional force is given to this restrictive interpretation by the ■.amendment of the section in 1897 (Chap. 427), interpolating the words, “ but in no other,” indicating an intention on the part of the Legislature to limit the grounds of the motion to those embodied in this section of the Code. (Cases last cited; People v. O'Connor, 31 Misc. Rep. 668; People v. Willis, 23 id. 568.)
There is much very eminent judicial authority in conflict with this position. (People v. Molineux, 27 Misc. Rep. 80; People v. Clark, 8 N. Y. Crim. Rep. 169; People v. Brickner, 15 N. Y. Supp. 528; People v. Vaughan, 19 Misc. Rep. 298; People v. Thomas, 32 id. 170.)
In these cases the right to dismiss on other grounds than the two [174]*174contained in said section 313 and to review on appeal the# order-denying such a motion pursuant to section 517 of the Code of Criminal Procedure, was claimed to lie one of the inherent powers, vested in the court and within section 671 of that Code.
It is unnecessary here to attempt any reconciliation of these two-sets of cases. Suffice it to say that the present case is distinguishable from those last cited. In every one of those cases, so far as I have been able to discover, illegal evidence had been presented to-the grand jury, and the motion to dismiss the indictment was. . founded upon that ground. The Code of Criminal Procedure . (§ 256) provides that “ The grand jury can receive none but legal evidence.”
A person accused of the commission of a crime is accordingly. • guaranteed that illegal evidence cannot be resorted to in the presentment of his case to the grand jury, and if there is any invasion of his right in this regard, he must be entitled in some manner to obtain judicial condemnation of the infraction. It would be a burlesque to embody the requirement in the Code if no redress -were-' afforded a defendant for its violation. The complaint made by the defendant involves- no transgression of any of the legal rights-accorded, by the Constitution- or the Code.- In this particular lies, the plain line of demarcation between this case and those- in which the defendant was permitted to move to dismiss the indictment.. Section 218 requires the court to charge the grand jury. It -requires that lie read to them certain sections of the Criminal Code, or furnish to them a copy of the same, and then provides: “ And must give them such information as it may deem proper as to the ' nature of their duties, and any charges and crimes returned to the court or likely to come before the grand jury.” The subject-matter of his charge and the manner of presenting it to the grand jury-rests in his discretion. If he desires to read to them affidavits showing that a crime has probably been committed, and the facts pertaining to it, that mode of procedure is open to him. The exercise of that discretion, in my judgment, is not subject to review. If, however, it can be reviewed at all,- assuredly not unless.it has been grossly abused to the prejudice of the defendant.
The affidavits which were read to the grand jury are not in the record. Mr. Weed’s affidavit recites the substance of what was con[175]*175tained in the one he made, and it shows no fact beyond what he testified to on the trial of the action, and which in all its main features was corroborated by the defendant in his own testimony. There was no injury to the defendant by this course adopted by the learned judge. Mr. Weed, the grand juror, of his own volition, could have caused this whole matter to be presented to the body of which he was a member. Of course the facts contained in his affidavit were all known to him; he had disclosed them, and every part of the information there imparted it was his duty to lay before the grand jury for investigation by it.
The error, if any, in the instruction above quoted to the grand jury is unimportant. The authenticity of it depends upon affidavits, and it has never received the sanction of the judge who uttered it. The many cases cited by the -appellant’s counsel, purporting to relate to a direction of this kind, are where the instruction was on the trial when an entirely different rule obtains.
The judgment of conviction should be affirmed.
All concurred, except McLennan, J., who dissented in an opinion.