People v. . Patrick

74 N.E. 843, 182 N.Y. 131, 19 N.Y. Crim. 136, 20 Bedell 131, 1905 N.Y. LEXIS 917

• Court: New York Court of Appeals
• Decided: June 9, 1905
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant was charged in the indictment with murder, in the first degree, committed upon William M. Rice by administering to him mercury, chloroform, and other poisons. When arraigned, he pleaded "not guilty." A trial was had, in the Court of General Sessions of the Peace of the city and county of New York, at which he was convicted, upon the verdict of a jury, as charged in the indictment. Upon the trial, the prosecution relied upon the administration of chloroform as the means employed for causing death. From the judgment of conviction, and from an order denying him a new trial, the defendant has appealed to this court. It is his contention that the evidence was insufficient to justify the verdict and that errors were committed upon the trial, which require that this court should reverse the judgment and award him a new trial. Especially does he insist upon being granted another trial, because of certain evidence, which, he alleges, was discovered after the judgment and so affects the proof relied upon by the prosecution, as to make it probable that a different verdict would be rendered. This is a very serious charge and, in order that justice shall appear to have been done upon the trial of the defendant, an examination and a consideration of the evidence become necessary, which must be somewhat extended. The enormous size of this record casts upon us a burden, which might well have been lightened by eliminating from the appeal book much of discussion between court and counsel and much of repetition in testimony. The matter could have been of benefit neither to the defendant, nor to the People. This case has the interest and it is invested with the seriousness, which characterize all cases, in which the infliction of the death penalty depends upon presumptive proof of the crime charged. The theory of the People was that the defendant had conspired with Charles F. Jones, the valet, or, as sometimes called, the secretary, of Rice, to kill Rice and that the defendant procured Jones to administer chloroform to him in accomplishment of their joint purpose. This purpose, they say, was motived by the desire to obtain possession of Rice's estate, through a will in favor of the defendant and through various transfers to him of properties; all purporting to have been executed by Rice, but which had, in fact, been forged by the defendant with Jones' aid. The defense is based upon a denial that Rice's death was effected by violent means, or that it was by the procurement of the defendant; and the proposition is advanced that the forgeries were not brought home to the defendant, or, if the evidence warranted the finding that they were, that that fact did not, necessarily, fasten upon him a criminal agency in the murder.

A careful reading of this record and a grave consideration of the matters of proof have convinced me that the jury reached a just conclusion and that there is no warrant for, nor do the interests of justice demand, our interference with the judgment. I see no occasion for the exercise in this case of the broad power conferred by the state upon this court, in capital cases, to reverse a conviction and to grant a new trial upon the indictment.

In the evolution of the common law, it became essential, in order to convict a person accused of homicide, to prove that the crime had, in fact, been committed. The corpus delicti, which is to say, the body of the crime, or the fact that a murder had been committed, was required to be satisfactorily established by proof of the death and that the death was caused by the criminal agency of the accused. The rule existed under the Roman civil law and the English judges adopted it, because of the number of deplorable instances of the execution of innocent persons, upon convictions resting upon merely incriminating circumstances and having no support, either, in some certain proof of the death of the supposed victim, or in that of the fact of a homicide. (2 Hale P.C. 290; 1 Starkie on Evid. 575; 3 Greenl. Evid. secs. 30, 131.) This humane rule of the common law was early incorporated in the body of our laws and is now embodied in section 181 of the Penal Code; which provides that "no person can be convicted of murder, or manslaughter, unless the death of the person alleged to have been killed and the fact of the killing by the defendant, as alleged, are, each, established as independent facts; the former by direct proof and the latter beyond a reasonable doubt." The death of Rice being undisputed, the question, which we have to consider, is whether the evidence was so strong and so cogent that the jurors might, justly and intelligently, say that, beyond a reasonable doubt, the death was caused by the criminal agency of the defendant. It was not claimed that he committed the act, by which Rice was made to die; for the prosecution had the voluntary confession of Jones that it was he who did it, being induced and aided thereto by the defendant. But the defendant was a principal in the commission of the crime, under our law, if he aided and abetted it, whether present, or absent; or if he, directly, or indirectly, counselled, commanded, induced, or procured another to commit it. (Penal Code, sec. 29.) The trial, therefore, presented these questions to the jury upon the evidence, whether it was established that the death was the result of poisoning and whether that result was aided, or abetted, induced, or procured, by the defendant. Circumstantial evidence was sufficient for their determination, the death being admitted, if it was of such a character as to leave the inference of guilt the only reasonable one possible from the facts disclosed. In other words, the whole question of fact was the personal guilt of the defendant and it was perfectly competent for the jury to act upon presumptive proof in its determination. (1 Starkie on Evid. 719, 720; Ruloff v.People, 18 N.Y. 179; People v. Bennett, 49 ib. 137, 144;People v. Harris, 136 ib. 423, 429.) It was only necessary to a verdict of guilty, if they found the cause of death to have been through the administration of chloroform, upon evidence pointing with conclusive force to that result, that the jurors should, further, find that the defendant acted with Jones in the pursuance of a common design to effect the death. His presence in the felony was constructive, if the evidence established that he worked with Jones towards the preconcerted end and if he was so situated as to be able to move, and to aid, his accomplice in the execution of their common design. (See People v. Bliven,112 N.Y. 79, 86.)

As I have said, the testimony of Jones was relied upon by the People to establish the criminal agency of the defendant in the homicide; but, it being the testimony of an accomplice, it was essential to a conviction that he should be corroborated by such other evidence as would tend to connect the defendant with the commission of the crime. (Code Crim. Proc. sec. 399.)

I shall consider, in first order, the death of Rice, the facts preceding and attending it and the opinions of medical witnesses as to its cause. Jones had been employed by Rice in the general capacity of a secretary and a man of all work, for several years. He was twenty-seven years of age. Rice was a man of eighty-four years of age and occupied an apartment in the city of New York. At, and prior to, the time of his death, none other than Jones was a member of his household; although a colored woman came in the daytime to do chores in the way of cleaning. He had no physician in attendance upon him; until in the spring, or in the early part of the summer, of 1900, when Dr. Curry, the friend and the physician of the defendant, at the latter's instance, was brought in by Jones, upon an occasion. Jones testified that Rice's attention had been arrested by a magazine article on chloroform and its use; that he, Jones, mentioned it to defendant and that, after several conversations with defendant upon the subject, the latter proposed that mercury should be given to Rice, as a mode of weakening his system, preparatory to administering chloroform. The designs upon Rice's property, which his death was to further, will be discussed later. Jones got the deceased, occasionally, a few weeks before his death, to take some mercurial pills, which he obtained upon a prescription that Dr. Curry had given him during some attack of his own. Their effect was to cause a light diarrhœa, which soon passed over. The defendant, then, as Jones testifies, furnished him with some stronger mercurial pills, which affected Rice by causing a severe diarrhœa. Dr. Curry attended upon him; but was in ignorance of his having taken the pills. Some days before his death, the deceased being made ill by eating bananas, suggested by a friend as a cure for indigestion, again, had resort to the mercurial pills; with the result, however, of benefiting his physical condition. On Friday and Saturday, September 21st and 22d, he was rather ill, weak and at times, on Saturday, delirious. On Sunday, having slept well, he felt better, and Dr. Curry said he was getting along very well, at a little before noon. In the evening, Rice was sleeping soundly; when, at about eight o'clock, while still sleeping, Jones saturated a sponge with the contents of a bottle containing about two ounces of chloroform, given him by the defendant, as he says, with instructions for its use, placed it within a cone made from a towel and put it over the face of the sleeper. He left the room for thirty minutes and, then, returning, removed the towel-cone from the face, threw it into the kitchen range and burned it up. He opened the windows, straightened out the room to its usual appearance, telephoned to the defendant that the deceased was very ill and sent a messenger for Dr. Curry. The latter arrived some twenty minutes afterwards, in company with the defendant, and stated, after an examination, that death had occurred thirty minutes, or more, before. An undertaker was sent for by the defendant, who, shortly after, arrived with an assistant. Dr. Curry filled out a blank certificate with statements of death from "old age and weak heart" and as "immediate causes indigestion followed by collocratal diarrhœa, with mental worry." The defendant directed the undertaker to have the remains cremated and not to embalm them; but, afterwards, when it was explained that cremation could not be arranged for within twenty-four hours, he ordered them to be embalmed. The assistant embalmed them that night by injecting an embalming fluid into the arteries; which had the effect, he testified, of driving the blood back into the heart. The cremation was to have been on Tuesday morning; but, before it could be done, the remains were taken charge of by the authorities and removed to the Morgue, where an autopsy was performed on Tuesday, September 25th.

As bearing upon the probabilities of the death being due, not to the operation of natural causes, but to some criminal agency, and before considering the medical testimony, a few facts and circumstances, in part, appearing in Jones' testimony and, in part, in that of other witnesses, might, not inappropriately, be referred to. Jones testified that, in August, when he told the defendant that Rice was improving in health, the defendant said to him "don't you think Rice is living too long for our interest." Upon his assenting, he was asked to "suggest some way to get him out of the way . . . that if he would let him (defendant) in some night, when Mr. Rice was sleeping soundly, he would come and put him out of the way." Before that, in the summer, there had been some conversation between them about chloroform. The defendant asked him if he could get some; that he wanted it for a purpose and that the law was too strict to get it here. Jones procured some to be sent on by his brother in Texas and gave it to the defendant. The sending and the receipt of it were testified to by his brother and by the express agents. Jones, further, testified that, in the afternoon of the day of the death, the defendant, after being told by him of Rice's improvement in health, gave him a bottle of oxalic acid to administer; being a vegetable poison, which would paralyze the heart. Witness tried to induce Rice to take some diluted in water; but, upon testing it, he "spit it out." The defendant, though not known to have any acquaintance, or relations, with Rice, was, solicitous in frequent inquiries of Dr. Curry, as the latter testified, about Rice's health. On the day before the death, he called upon him in the afternoon and learned from the doctor that, though very weak, physically, he thought Rice would be able to go out in the following week. Letters were written by the defendant to friends of the deceased in Texas, about the middle of September, with statements that the deceased was "sick," "growing very weak;" that "he could not live very long;" that "heart action was growing very weak," or "that it was evident he could not hold out long."

The autopsy was performed, about forty-three hours after the death occurred, by Dr. Donlin, a coroner's physician, in the presence of Dr. Williams, also a coroner's physician, and of Professor R.A. Witthaus, an expert chemist. The two physicians testified that the organs of the body, except the lungs, were normal in condition, except as affected by the embalming fluid. They and Professor Witthaus agreed in their testimony that the lungs were congested. Dr. Donlin speaks of their being "congested all over;" while Dr. Williams characterized it as an "intense congestion of the lungs — co-extensive with them." Outside of the lungs, they found no evidence of disease to account for death and, beyond their congested condition, they showed nothing beyond a small patch of consolidated tissue about the size of a twenty-five cent piece. They testified, in effect, from experience and from experiments, that nothing but the inhalation of some gaseous irritant could have produced such a general congestion, and that the lobular patch, while consistent with some congestion, was insufficient to account for the condition observed. Dr. Donlin, while testifying that he did not know the proximate cause of death, was unshaken in his statement that no cause for it was observable in the other vital organs. Dr Williams was equally firm in making similar statements. He had made a study of the case and from that, as from experiments upon animals, he was of the opinion that chloroform inhaled would act as an irritant upon the lung and cause precisely that general congestion represented in the case of the deceased. The effect of chloroform upon the system, he says, whether as a negligible result, or as an irritant causing congestion of the lung, is dependent upon the extent to which the admixture of air is permitted in the administration of the drug. Professor Witthaus, an expert chemist, with large experience in chemical analyses of bodies, testified that he took away the intestines, stomach, liver, kidneys and heart of the deceased. His analyses revealed the presence of mercury, obtained as calomel, and, though not in quantities sufficient to cause death, its presence indicated a larger quantity to have existed in life. He says that the embalming fluid contained no mercury and he agrees with Dr. Donlin that it would have no effect upon the lungs, when injected through the brachial arteries, beyond bleaching them. He thought that the use of formaldehyde in the embalming process would interfere with the analytical test for the detection of chloroform. Dr. Henry P. Loomis, a pathologist with much experience in autopsies, examined the heart, liver and kidneys of the deceased and found them normal, relatively to a man of his age. He found no cause for death and he gave it as his opinion that no disease will produce a congestion of the lungs, which would be co-extensive with them. Pneumonia, he says, produces a consolidation of more or less of the lung. To a hypothetical question, assuming that there was found a congestion of the lungs co-extensive with the lungs themselves and that there was no other cause of death found, he answered that his opinion was that the cause of death had been some irritant gas, or vapor, administered through the mouth; that nothing except such an irritant would produce such a congestion. Chloroform would cause it, if inhaled in excessive quantities, and experiments upon animals had shown that the amount of congestion varied with the degree of admixture of atmospheric air. A congestion, if produced at all by a kidney trouble, would be at the dependent portion of the lungs and never all over.

In behalf of the defendant, several witnesses were examined upon medical and pathological conditions, assumed in questions, which resumed the facts as they had been made to appear in the evidence for the People and in the testimony of Dr. Curry, a witness for the defendant. For example, the following question was put to Dr. Edward W. Lee, a surgeon and physician, without objection: "Q. Doctor, assuming that a patient is eighty-four years of age; that prior to death he had dropsy of the lower limbs for several months from the knees down, and that the post-mortem findings revealed the brain to be otherwise normal; the heart normal, with a slight contraction of the pulmonary and aortic orifice; the lungs congested slightly, but the congestion co-extensive with the lungs; a small quantity of coagulated blood in the right heart; the kidneys firm, capsules not adherent; surface granular, markings fairly distinct, and a number of small cysts; and that on the day preceding his death the patient was troubled with his urine, and had to urinate frequently; that the liver was normal, and that the intestines were negative, and that on the day preceding the death of the patient he was delirious, more or less during the day, and was delirious some upon the day of his death, and there was a patch of consolidated lung tissue in the lower lobe of the right lung; about the size of a twenty-five cent piece; that the lungs were watery; what would you say would be the cause of death?" The witness answered "congestion of the lungs and diseased kidneys." It was his opinion that, while an irritant gas will produce a congestion over both lungs, tuberculosis, pneumonia and kidney disease would cause it, and that, in the case assumed, the condition of the heart occasioned the congestion. He testified, upon the subject of the administration of chloroform, that, under the circumstances as stated by Jones in his narrative of the murder, the odor should have been detected within half to three-quarters of an hour afterwards, though, when confined in a cone, the odor would not be so strong in a room, as when administered in the ordinary ways; that the cone should have fallen from the face of the patient, as the result of muscular action produced by the first exciting effects of the inhalation of the chloroform; that it might be administered in such a cautious, or stealthy, way as not to awaken the person and, referring to the burning by Jones of the towel and sponge in the range, that chloroform was not combustible, at first, though in an hour, if exposed to the open air, it might wholly evaporate from the cloth. Dr. James Ewing, a pathologist, in answer to a hypothetical question, substantially similar to that addressed to Dr. Lee, was of the opinion that death was accounted for in the presence of pneumonia and was not due to chloroform poisoning, though he had no experience in the use of chloroform. Doctors John H. Girdner, Isaac N. Love, Alexander Leuf and Kenneth W. Millican, physicians, testified in answer to similar hypothetical questions, resuming the bodily symptoms and conditions of the deceased, prior, and subsequent, to his death. They agreed in opinion that there were no indications of death from chloroform poisoning and that death was due to œdema of the lungs, caused, as some of them said, by nephritis, or kidney trouble. In their opinion, chloroform was not an irritant to the lung tissue, to the appreciable extent claimed by the prosecution; the administration of chloroform to the deceased, as testified to, should have had the effect of awakening him from his sleep and its odor should have been discoverable within a half, or three-quarters, of an hour afterwards. Doctors Girdner and Love conceded, the former, that death might, within thirty seconds, have happened while the cone was being fitted and, the latter, that chloroform inhaled might have been an intervening cause of death, under the circumstances detailed by the prosecution as happening on Sunday. Dr. Austin Flint, the eminent physician, testified, in answer to the hypothetical question of the defendant, that death was due to œdema of the lungs and that there was no evidence, in the facts assumed, of its being due to chloroform. He stated that mercury could be found in the system for months after its being administered. He conceded that chloroform does, often, produce congestion of the lungs and that, while he assumed that the œdematous condition was due to congestion, there was nothing to which he attributed that congestion. In rebuttal, the People examined several physicians. Dr. Hobart A. Hare, a physician from Philadelphia, had made a special study of drugs, including chloroform, and he testified that the effect of putting a cone upon the face of a sleeping man, under a state of facts similar to those detailed by the witnesses for the People, as existing in the case of the deceased, would be to cause death. He said that the facts evidenced no natural causes of death and that the administration of such a large amount of chloroform would act to depress, powerfully, the heart and the circulatory system. He saw nothing in the facts, assumed as describing the condition of the deceased for several months prior to his death, to evidence that death was approximate, or to account for an œdematous condition of the lungs. Doctors Robert C. Kemp, Alfred E. Thayer and Otto A. Schultze, physicians competent from experience to express opinions as to the effects of chloroform, testified. Dr. Kemp agreed with Dr. Hare that death would follow as the effect of such an administration of chloroform, as the prosecution claimed to be the fact. Dr. Thayer was of the opinion that nothing in the conditions, assumed by the prosecution as having been those of the deceased, accounted for his death and that his prior symptoms were not consistent with œdema of the lungs. Dr. Schultze was of the opinion that nothing in the conditions disclosed upon the autopsy showed that death was due to old age, weak heart, or mental trouble. Finally, Dr. John B. McAllister, a physician and an instructor in pathology and operative surgery on dead bodies, testified that, happening to come into the room at the time of the autopsy, he saw the body of the deceased and that there were no symptoms of dropsy of the lower limbs. This latter statement has a somewhat important bearing, in contradicting the assumption by the defense of the fact, based upon Dr. Curry's testimony, that there was a dropsical condition of the body below the knees. All of these medical witnesses in rebuttal agreed in the opinion that the odor of chloroform, within the statement of facts assumed upon the testimony of Jones, would not be discoverable an hour afterwards.

I think I have referred to the evidence, medical and otherwise, bearing upon the death of Rice and its causes, sufficiently for the purpose of presenting that feature of the case. The jury might well find upon the evidence that the death was not the result of natural causes, and that it was due to some criminal agency. They could well conclude that the autopsy disclosed no natural cause for the death and that, in the light of the medical opinions, it could only be accounted for as having happened in the way testified to by Jones: that is, by chloroform poisoning. The physicians, who assisted at the autopsy, testified to physical conditions making a natural death incredible. It was for the jury to say whether the facts and their opinions, with that of Professor Witthaus, satisfactorily accounted for a death by chloroform poisoning. The witnesses of the autopsy testified positively to the facts of a congestion extending all over the lungs and of the other organs being in a normal condition, relatively to the age of the deceased. The medical expertsexpressed opinions upon the hypothetical case put and theyassumed the existence of œdema of the lungs, which must arisefrom — or, as Dr. Flint expressed it, which was a symptom of — adisease. If the jury believed the testimony of the physicians,who took part in the autopsy, then it is certain that there wasno disease of a vital organ to account for the œdema. It is a pathological fact that œdema is consequent upon an unrelieved congestion of the lungs. The finding of mercury in the body corroborated Jones, as to his having given mercurial pills to the deceased to weaken his system. If doubt should be thrown upon the probability of Jones being able to administer the chloroform by means of the cone left upon the face, the jury, in the light even of the evidence of the medical experts for the defense, might believe that the effect of placing the cone upon the face of the deceased was to cause him to pass at once into a state of narcosis; or, in his weakened condition, to be stricken by death almost immediately. I do not think it necessary to dwell longer upon this phase of the case. When the rest of the evidence is considered, it will become apparent, in my opinion, that the facts reveal such a confederacy of effort between the defendant and Jones to cause the death of the deceased, as to make it impossible to come to the conclusion that a natural death occurred at a moment, apparently, so opportune for the success of the plot into which they had entered.

Jones had accompanied the deceased from Texas to New York, in 1897, and he lived with him in an apartment on Madison avenue, without other occupant. The deceased was a man of great wealth, which he had gained in Texan enterprises. He was a widower and was childless. Jones became acquainted with defendant one evening in November, 1899; when the latter called, under an assumed name, and requested to see Rice upon the pretext of some cotton business. Jones told him that Rice had retired and he, soon after, left. He called at another time, in the evening, with the same ostensible purpose; but did not see Rice. Upon that occasion, he disclosed his identity and spoke of a litigation pending in Texas between Rice and one, Holt, who was the executor of the will of Rice's wife; in which he had been acting as local counsel for Holt. His visits became of weekly occurrence; but he never came to know Rice. The Holt suit was talked of and its unfavorable aspect was represented by the defendant. He expressed great confidence, if he could get into communication with Rice, that the case could be settled. Jones told him that the deceased would not see him and that he was prejudiced against him, because of his insulting examination of some ladies, upon a commission to take testimony in New York. Eventually, he proposed that Jones should typewrite a letter as from Rice to his lawyers in Texas, after a form which he handed Jones; in which Rice should state that, as he was a citizen of Texas and as his property was there, he was going to settle the suit. The suit referred to was brought by Rice against the executor of his wife's will; wherein she had undertaken to dispose of some $2,500,000 of his estate, upon the theory that having married without settlements, under the so-called "Community Law of Texas," she was entitled to one-half of his estate. Among other grounds for contesting the will, he claimed to have become a citizen of New York. The defendant said he would arrange for the signing of the proposed letter and would pay Jones for writing it. Jones did write it; but, the defendant not paying him, the letter was destroyed. Then the defendant expressed sympathy with Jones in the inadequate remuneration, which he received for his services, and he told him that, if he "would go into a business deal with him," he would get much more. He, soon after, showed him a form of a will by Rice, disposing of half of his property to the defendant and the remainder in bequests to relatives, friends and the "William M. Rice Institute;" a corporation which the deceased had caused to be organized in Texas for scientific, artistic and literary purposes. He proposed that Jones should typewrite it, as was his custom to do with the letters, or business papers, of Rice and he would arrange for its being signed and witnessed. This was assented to by Jones; who told the defendant of a will, which the deceased had executed in 1896. This he got and handed to the defendant; who took it and proposed to preserve it, in order that he might use it to compel the heirs to accept a later one. Wetherbee, one of two clerks in the banking house of Swenson Sons who had witnessed the will of 1896, was approached by Jones, at the defendant's instance, with the request to become a witness to a new will; which Jones represented he could, by reason of his position, procure Rice to sign in one of his drowsy moments. But, though he was to be put in as an executor, Wetherbee refused. That idea was abandoned and the defendant said he would arrange for one witness and that Jones could act as the other; but Jones refused to act as such, as he wished to be a beneficiary of the will. Subsequently, Jones came to the defendant's office, when a proposed will was read to him, to which a friend and a clerk of the defendant were to act as the witnesses. To that end, Jones was to arrange to make them acquainted with his master; which he was able to do by employing them to take acknowledgments, as notary public, or as a Texas commissioner of deeds. During the summer of 1900, the defendant recommended to Jones, when ill, to employ Dr. Curry; but told him he was to caution the doctor not to mention the defendant's name in the presence of Rice. The defendant essayed, unsuccessfully, by the use of an advertisement addressed to the heirs of Mrs. Rice, to get into communication with Rice. He induced Jones to typewrite letters, purporting to be from Rice to him, the defendant; one in supposed response to the advertisement, which might furnish evidence of the inception of negotiations with defendant, and others, which, by their tenor, would express confidence in him. To perfect this plan, the defendant furnished to Jones a list of dates, running from August 3d 1900, to August 28th, 1900, and the latter was to address and mail an envelope upon each date; into which a letter of corresponding date might be placed. Jones took the pretended letters to the defendant's office and, subsequently, mailed the envelopes. With the letters, he furnished carbon copies, as had been his custom, when acting for his master; which were to be filed, in the usual manner, in the apartment. The will purporting to have been executed by Rice upon June 30, 1900, was first seen by Jones at defendant's office, in the early part of September, and he next saw it after Rice's death in defendant's possession. From information furnished by Jones and from the genuine will of 1896, the defendant had so drawn it, as to make more beneficial provisions for the relatives of the deceased; to give to the Rice Institute a legacy, under conditions which made it, practically, unavailable, (though it had been the residuary legatee under the will of 1896), and legacies to each of the directors of the institute of a sum of money. Legacies were given to friends and to employés, and the residuary estate was given to the defendant. The defendant explained that the provisions for legacies were to interest the persons to whom given in the establishment of the will. This will was, apparently, signed upon each page by Rice; but Jones testifies that Rice had not signed it. Jones had furnished models of Rice's signature to the defendant and, in a few instances, he had allowed him to sign letters and, even, checks in payment of wages, in the name of Rice, in order to furnish standards for use after death in any litigation. Jones typewrote and gave to the defendant instruments, which assigned and transferred to him the securities, cash and property of Rice in certain safe deposit vaults, in a certain trust company and with Swenson Sons' banking house. They were handed to the defendant unsigned and with them were carbon copies. About the beginning of September, Jones had typewritten a letter as from Rice to the defendant, dated August 3d 1900, instructing him to have his remains cremated and not to permit them to be embalmed. As it has, elsewhere, been mentioned, Jones, at the suggestion of the defendant, introduced Dr. Curry to Rice during the summer of 1900, upon occasions when the latter was ill. He rallied after each attack and his physical condition continued without any alarming symptom until Sunday, September 23d, the day of his death; although on Saturday he seemed very weak and mentally disturbed. On Sunday, he was pronounced better. He had slept well and the physician thought he would be able to go out on Monday, or during the week. On Saturday a draft for $25,000, a first installment of a sum of $250,000, which Rice had agreed to pay towards the reconstruction of a mill in Texas, was brought to the apartment for collection and Jones had been able to put off its presentment to Rice, upon the ground of his illness. Meeting the defendant at lunch, he told him of the fact. Captain Baker, the deceased's Texan counsel, was expected to arrive and a recent letter from Rice to him, expressing a desire to see him, had been seen by the defendant. The desire to avoid the payment of the moneys and to prevent the meeting of the lawyer with his old friend and client precipitated the designs of the conspirators. On Sunday evening, Jones met the defendant upon the street. The latter had kept away from the apartment for some ten days, for fear, if Rice died suddenly, that he should come under suspicion; having assignments of all of his property. Jones told him of the improvement in the condition of Rice and of his refusal to take the dose of oxalic acid, and that he had left him sleeping soundly. When the defendant gave him the chloroform and told him how to use it, he, at first, refused; but he was, soon, persuaded to do the act by the representation that Baker's coming on might defeat their schemes and "break up everything." He went in, found Rice still sleeping, and killed him, as narrated elsewhere. Then, later, the defendant arrived with Dr. Curry, having been summoned by telephone. After the embalming was completed that night, the defendant took away from the apartment in a bag, securities of large value, $450 in bills, some silver, and two watches. Early in the morning of Monday, he returned and directed Jones to fill out some checks taken from deceased's check book, which Jones had theretofore given to him. Jones did so; filling out four to the defendant's order, for various amounts, aggregating $250,000, on the Fifth Avenue Trust Company and on Swenson Sons, and the defendant left with them. Jones, later in the morning, was telephoned by the defendant that, owing to a mistake in the spelling of the defendant's name of Albert, one of the checks for $25,000 had been refused payment by Swenson Sons and that, if they were to telephone about it, he was to say that the check was all right. Swenson Sons did inquire over the telephone about the check and Jones said, if it was in his, Jones' handwriting, "to go ahead and certify it." Later, when again called up by the Swensons, and acting upon instructions received meanwhile from the defendant, he told them of Rice's death in the previous evening and gave them the address of the defendant, as the lawyer of the deceased. Two days after the death, the defendant told Jones that he had telegraphed to Holt the contents of an agreement, purporting to have been executed by Rice and by him, as representing Holt, on March 6th, 1900, which settled the Texan litigation by the payment of $250,000. He said that it would appear better, if the settlement of the suit should appear to have been made in the lifetime of Rice, rather than that he, the defendant, should appear to have been opposing him, while being the residuary legatee in his will. The defendant, also, told Jones that he had promised to pay Dr. Curry $500 and that the latter had said he would render a bill for $1,000. He told him that he had torn up the carbon copies of the various letters and papers, which he had typewritten for him and which he kept at his office, and that he had so choked up his toilet in getting rid of them, that it had overflowed and the watchman had been obliged to clear it out. He said that he was afraid to bring them up to the apartment, as it had been planned; lest he might be arrested with them on his person. On October 4th, 1900, the defendant and Jones were arrested upon a charge of forgery. While in the "Tombs," or city prison, Jones attempted suicide by means of a penknife, which had been furnished him by the defendant. After his arrest, he made several false statements, relating to the commission of the crime, to his counsel and to the assistant district attorney. At an interview, the latter told him of various facts discovered by the office, which proved his previous statements to have been untrue and impossible of corroboration. He said that he "wanted a truthful statement; that the truth was always consistent and could be corroborated." Finally, in January, or February, 1901, Jones told the assistant district attorney of his having killed Rice by chloroform. He testified that he had not been promised any immunity.

I have now given, from the very extended examination of Jones, all that seems to be material and it remains to be seen how far his story of the crime deserved credence. It is sufficient if he is corroborated as to some material fact, or facts, which go to prove the connection of the defendant with the criminal intent and its execution. The rule is stated in Roscoe's Criminal Evidence, (122), "that there should be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it." Judge BARTLETT, in People v. Mayhew, (150 N.Y. at p. 353), speaking for this court, observed that the corroborative evidence is sufficient, under the statute in question, (Code Crim. Proc. sec. 399), if it tends to connect the defendant with the commission of the crime and he formulated, upon authority, this rule for the procedure upon the trial, that "if the trial judge is satisfied that there is testimony tending to connect the defendant with the commission of the crime, he is bound to submit the case to the jury; who are the sole judges whether the evidence relied on to corroborate the accomplice is sufficient." This is but just; or, otherwise, if the statute is to be given a narrower construction, the ends of justice might be often defeated. The law, in its humane policy, intends that the life, or the liberty, of an accused person shall not be sworn away by an accomplice, unless the accomplice be so corroborated, as to some material fact, or facts, as that a belief in his credibility becomes reasonable and, therefore, safe to be entertained.

Much testimony was adduced with respect to the genuineness of the signatures of W.M. Rice, the deceased, as they appeared upon the principal document in dispute. They were the will of June 30th, 1900; the instruments assigning and transferring to the defendant the moneys in bank and the securities in safe deposit vaults; the four checks to the defendant's order, aggregating in amount $250,000, and the cremation letter. Every one of the relatives, friends, or business acquaintances, of the deceased, who were examined, stated the signatures to these documents not to be in the handwriting of the deceased. That was the evidence of Swenson, the banker of the deceased for twenty years, and of several of his clerks; who were familiar with the handwriting of the deceased, through handling his checks and from having seen him write, and two of whom had witnessed his will of 1896. Such was that of two of his agents in Texas and of five business correspondents, with whom he had been in constant communication. Baker, his lawyer and friend for some forty years, testified to the forgeries. Twelve witnesses were examined upon the subject, who were experts in handwriting and penmanship, of more or less repute and skill; who stated, upon comparisons being made with conceded signatures, taken as standards, that the signatures in question were simulations and they gave their reasons, at great length, upon direct and upon cross-examinations, for their opinions, with a greater, or lesser, degree of clearness and exactness. Meyers and Short, who appeared as witnesses upon the disputed will of June 30th, 1900, testified that they saw the deceased sign the will and gave a minute description of the occurrence at the apartment. The question of the forgery of the signatures of the deceased was one of fact for the jury and, in my opinion, while the evidence of the experts might have been of assistance in reaching their conclusion, the jurors might, with an easy conscience and with a clearer mind, have relied upon the evidence of those, whose business it was to know the signature of Rice and to whom his handwriting had been an accustomed sight. It may be that, in instances, witnesses were confused, or mistaken, upon the test by comparisons; but, in the main, the jurors were amply justified in accepting the evidence as conclusive as to the fact of forgery having been committed. The proof was important in corroborating Jones' testimony as to the various documents having been prepared by him for, and handed to, the defendant; for he produced them after the death. This evidence was, further, material, not as, necessarily, proving the commission of the crime charged, but as tending to prove the confederacy, or the conspiracy, of the two to possess themselves of the property of the deceased. It furnished a basis for the inference that, when the intended victim failed to succumb to illness, or to the weight of years, as for a time hoped, the purpose to kill him was precipitated, in order that the plot, which the documents evidenced, might be successful. There can be no question about the motive for killing the deceased. Unless he was removed from the path, the prospect of the enjoyment of the fruits of the conspiracy was growing very dim. It, also, tended to show the utter absence of any motive in Jones to murder his employer on his own account. For he was not a beneficiary under the forged will, nor was he, apparently, to gain by the several transfers of moneys and securities, and the murder could be of no advantage to him, except for the promises of the defendant, who would, thereby, come into possession of the great estate of the victim.

In further corroboration of Jones' testimony, and as independent facts connecting the defendant with the crime, the evidence of several witnesses must be referred to. The deceased had a brother and nephews, with whom, so far as the evidence shows, his relations were amicable, and he had several friends, with whom he was upon terms of a more or less intimate nature. Among his friends was a Captain Baker, member of a Texas law firm, his personal counsel for over forty years and an executor of the conceded will of 1896. He gave testimony of considerable value in exposing the plot of the defendant. He described the deceased as a strong man, who had attended, personally, to his own affairs. He testified that he had first known the defendant in Texas, about the year 1890; where he was practicing law. He saw him in New York, in the fall of 1899; when, for several weeks, he was engaged in the taking of testimony, in the litigation instituted by Rice over his late wife's attempted testamentary disposition of a share of his estate under the Texas statute, heretofore alluded to. The defendant represented the wife's executor. He made frequent efforts with Baker to effect a compromise and suggested that Rice should pay sums, varying from $500,000 to $250,000. Baker told him that Rice had a great deal of feeling about the matter and was not inclined to make any settlement, and that he regarded the defendant in a hostile manner, for being opposed in the suit. When he next saw the defendant, it was upon his arrival in New York, after hearing of the death of his friend and client, and on the Thursday thereafter. He saw him at the apartment and, in conversation, the latter told him of the making of the will of June 30, 1900; in which he was given the residuary estate and of which he, Baker, and a nephew, William M. Rice, Jr., were the executors. He explained his having been made the residuary legatee by the statement that the deceased had "become stuck" on him and had thought him "the most wonderful man in the world;" that, although under no legal obligation, his purpose was to effectuate the desires of the deceased by distributing the estate in charity and to exploit his name, as that of a great philanthropist. As Baker knew that he had never had any relations with Rice, he explained to him his resort to the ruse of an advertisement, which has been mentioned, through which he represented that they had become acquainted. He said that the deceased had become suspicious of Baker and, notwithstanding he was an opposing counsel in the pending litigation, he had retained his services. He told Baker that he would not qualify as executor; that, therefore, he and the other executor could share the five per cent commission between them and that Baker would be "bountifully compensated" for his services in the pending litigation. He showed Baker the cremation letter. Baker was taken to the defendant's residence and there was shown the will of 1900 and the instruments transferring all the property of Rice in moneys and securities. A general assignment, being shown, was explained to have been in consideration of an annual payment of $10,000 for the support of Rice during his life, as "the old man had tired of life and had tired of business, and that it was in pursuance of an understanding he had, by which Rice was to turn over to him all his property of every kind and character." Later, at the defendant's office, he delivered over to Baker, at the latter's request, securities, representing several hundred thousand dollars in value, taken from the apartment. He, also, turned over all of the checks, but one, which Jones testified he had filled out for him on the day after the death. The defendant told Baker that they had been sent to him by Jones the day before the death. The one check for $25,000 he had cashed and he refused to pay over the proceeds. First, he told Baker that he thought the checks were sent "to be paid to Mr. Holt in settlement of that litigation." At another time, he said that was not true and that he thought they may have been sent in pursuance of the understanding to turn over to him all of the deceased's property. He said that the deceased wished Baker and Holt to be kept in ignorance of an agreement settling the Texas suit, through the payment of $250,000, which had been theretofore executed by the deceased and by the defendant, acting for Holt. Upon Baker's asking him why, in view of his antagonistic professional relations, he did not have the will of 1900 and the assignments of property witnessed by some friend of the deceased, or by some mutual acquaintance of standing in New York, he explained that the deceased was peculiar; that he desired their relations to be secret and that, so far as he knew, "no living man ever saw him in the presence of Mr. Rice, unless it was C.F. Jones and he did not know that he ever saw him with him." It is claimed by counsel that Baker was not an impartial, or disinterested, witness. His only interest, as I can see it, in preferring the establishment of the conceded will of 1896 to that produced by the defendant, was the very obvious one of defeating a scheme, which was to divert the Rice millions into the possession of a stranger and which he believed to be iniquitous.

Whittlesey testified to having been a close friend and a frequent visitor of Rice. He knew the defendant and, in the spring of 1900, was asked by him to see Rice upon the subject of a settlement of the Texas suit. The defendant admitted to him that he did not know Rice well enough to speak to him. The witness called on Rice and reported to the defendant that he was very decided in declining to compromise "what he considered a fraud."

Coleman testified to having been a classmate and a friend of the deceased, and to knowing the defendant. In a conversation with the latter in New York, in August, 1900, the defendant asked questions about the probable wealth of Rice and how long he and other people in Houston, (Texas), thought he might live. He told him that Rice wanted to be cremated. Upon an occasion, he saw in defendant's office one of Rice's envelopes, bearing his "return card" in the corner.

Potts testified that he had always known the defendant and had occupied the same suite of offices after April, 1900. He never had seen the deceased there. He was introduced to Jones by the defendant, at the office in the spring of 1900, as the secretary of Rice. Upon an occasion, when the defendant borrowed $150 of him, a few days before Rice's death, he said to him "that rich client of mine has made a will making me residuary legatee" and he showed him, in a box at the safe deposit company, the will of 1900 and the assignments of moneys and securities. He, also, saw there some checks, blank as to amount, signed "W.M. Rice" and payable to "Albert T. Patrick, Trustee." The defendant told him he "practically owned the estate;" that he owed it to the regard and esteem of Rice and that he was to perpetuate his memory; that it was, in fact, a trust. He, also, told him that Rice "was liable to die any time." Early on Monday, September twenty-fourth, defendant telegraphed the witness of the death and to call before 9:30 A.M. Upon reaching the apartment, the defendant showed him four checks, for various amounts, which, he said, Jones had sent him on Saturday, and, at his request, he took one for $25,000 and had it certified, that morning, by the Fifth Avenue Trust Company. He, also, saw then another check on the same company for $135,000. Meldrum, a friend of the deceased, testified to the defendant's calling upon him two days after the death, when the latter spoke of the deceased having taken so remarkable a liking to him as to have made him an executor and the residuary legatee of a recent will, and that the deceased had intended to turn over all matters to him in the week following his death; that Jones had sent around the money checks on Saturday and that he had been too busy to cash them then. He corroborates Baker as to what occurred at his interview with the defendant at the apartment and at the defendant's residence, upon his arrival in New York.

Wetherbee, long a clerk with Swenson Sons, testified in corroboration of Jones' testimony about proposing to make a new will for the deceased in January, 1900. The witness had been a witness to the will of 1896. The new will, Jones told him, was to have some changes and he was to be an executor and to share the commissions with him; each was to procure one witness and when Rice was "dopey," as he would become at times, he would sign anything Jones placed before him. He said to witness that he had been approached by two lawyers, one of whom he described as being from Texas.

Two clerks of Swenson, the banker of the deceased, testified to the presentation, on Monday morning, of the check in Jones' handwriting for $25,000, with the misspelled name of the defendant as payee, and its return, after non-acceptance, with the payee's name indorsed as written in the body.

Swenson had an interview with the defendant on Monday afternoon, in which the latter regretted the non-payment of the check and said that he had another for $65,000 and, also, an assignment to him by the deceased of securities, of which he gave him a copy. He spoke of the death as having been caused, primarily, by eating some bananas. Upon the witness expressing surprise, when he said the body was to be cremated, he explained that the deceased was a "crank on the subject of cremation;" to which the witness replied that he had never heard of it.

Gerard, a lawyer, in company with a detective officer, at Swenson's instance, called on the defendant, Monday evening, and they testified that, in conversation with him, he told of his having the will of the deceased, of his being executor and, also, of having assignments of all the securities and moneys. Upon Gerard's asking him what was the use of having an assignment, when he had a will, he answered that that was "a secret." Some days later, upon his arrest, the defendant asked Gerard and Baker, with whom he was, if they could not "fix this up." Caldwell, a reporter, testified to an interview on Monday, in which the defendant stated to him that he had had confidential relations with the deceased as counsel; that he was not a beneficiary under the will; that the checks had been sent to him to create a trust fund and that the cremation letter had been written to him by Rice, through dictation to Jones, a few months before. Armstrong, another reporter, testified to an interview with defendant on the following Thursday, in which the latter stated that, as attorney for Holt, he had been carrying on secret relations with Rice, in order to effect a settlement of the suit with Holt, by a payment to him of the sum of $250,000, and that the checks in dispute were sent to him as Holt's attorney.

In further corroboration of incidents in the story of Jones, Mayer, the defendant's office boy, testified to frequent interviews between the defendant and Jones after June, 1900, which were carefully guarded against interruptions, and to receiving envelopes with the name of W.M. Rice upon the corner. Jones' brother testified to sending the chloroform from Texas in the summer of 1900. The janitor of defendant's office building testified to discovering the overflow from defendant's toilet, in the middle of the night of Monday, September 24th, and to the defendant's explanation to him of having choked it up with papers. Mrs. Thompson, a friend of Rice, testified to having called upon him, on Sunday evening, September 23d, at about eight o'clock, and that, after waiting some twenty minutes and sending up twice to the apartment, she left without being able to see him. Teich, the night watchman of the apartment building and who had charge of the elevator, after seven o'clock in the evening, testified to Jones having returned to the apartment that Sunday evening, before Mrs. Thompson's call, and to his inability to obain any response to the ringing of the apartment bell; that Jones had not gone out; that he saw him later, when Dr. Curry was sent for; that he saw the defendant come in with Dr. Curry; that when defendant left the building, he had a valise, or bag, in his hand and that he told him, at the time, that he, Teich, had been remembered in Rice's will.

Such, as briefly as I can, intelligibly, condense it, was the evidence on the part of the People. The defendant did not testify in his own behalf. Besides the medical experts, whose testimony has been referred to, other witnesses were called by him. Through Maria Scott, the colored woman whom Rice had employed to clean the apartment, the defendant sought to show that she had let him in upon two occasions. On her cross-examination, a rather significant piece of evidence was elicited. A day, or two, after the death she says that the defendant, coming into the kitchen, told her that she "was accused of poisoning Mr. Rice . . . doing it in his cooking." She did no cooking for him. Dr. Curry, who had been a surgeon during the Civil war in the southern army, testified to making the acquaintance of Rice in March, 1900, when visiting Jones professionally. At that time and, again, in August, he prescribed mercury in pills for Jones, as a laxative. Upon several occasions, he, afterwards, prescribed for Rice, but never mercury. He describes him as an old and weak man, with slow action of the heart and with dropsy of his lower extremities. His examination of him resulted in finding the kidneys, liver, spleen and lungs in good condition. In September he examined him daily. His heart, though weak, was sound and his digestion was good. He knew that the defendant was engaged as opposing counsel in Rice's suit against Holt, and he corroborated Jones' statement about his being cautioned against mentioning the defendant's name in Rice's presence. The burning of an oil mill in Texas, in the early part of September, had much affected Rice and, about September 21st, he observed that his respiration became oppressed; a result which he attributed to mental worry. On September 22d, the day before his death, the witness called in the afternoon and found him up, but quite weak. He recommended to Jones to keep him quiet, because of his mental condition, and he would recover; though the worst might happen. Sunday morning Rice described himself to the witness as feeling better. He had, then, a pulse of 60 and a normal temperature. The witness did not like the breathing; but, upon examining the lungs, found nothing the matter with them. When summoned that evening by Jones, he observed the features to be calm and natural, as though death had happened without a struggle. He could detect no odor of chloroform upon the body; though his examination was closely made. He thought he should have detected it, had only a half to three-quarters of an hour elapsed since its administration; although he says that the cases where he had noticed the odor were those of operations in which the patient, by breathing the chloroform in and out, had saturated the room. He stated that, if chloroform was administered in the manner that Jones had described, it would have killed Rice within four or five minutes, or "it might have taken half an hour." He thought the diarrhœa had contributed to the death, by enfeebling the body and nerve force. He denied any conversation with Jones, or the defendant, about the operation of chloroform; or as to the latter's having made any promise about fees. Mrs. Carpenter, a friend of Rice, testified to having once seen him and the defendant together in May, 1900; to his having once expressed a desire to be cremated; and, when she saw him on Saturday before his death, to his appearing as if "struck with death." Meyers, who was in the defendant's office, testified to having gone to the apartment of the deceased, at times, by the defendant's direction, to take, as notary public, Rice's acknowledgment and that, when he was sent up with some papers, for such a purpose, on June 30th, the will in question was produced by Rice and the request was made to him and to his companion, Short, to witness it. They complied and his testimony to the formalities of execution was given quite fully. He said he had worked for some time upon drafts of a will for Rice, which had been furnished him by the defendant. He knew of no business relations of the defendant with the deceased. Short, a friend of the defendant, who had always accompanied Meyers upon the occasions of his being sent to Rice's rooms, testified to the same effect as had Meyers, with respect to witnessing the will of 1900, and, also, to a request by the deceased that it should not be spoken of until after his death. He accompanied Meyers, in the capacity of a commissioner of deeds for Texas, to take acknowledgments upon documents to be recorded in that state. It was made to appear that the defendant knew that a notary public's certificate was sufficient and the Texas statutes were, also, put in evidence to establish the fact. Miss Potts and others, of the household where the defendant had his residence, were called to establish the fact of the defendant's absence from Rice's apartment during the early part of the evening of Sunday.

At the conclusion of the case, the counsel for the defendant stated that "it was due to the court to say that the defense has no complaint to make" and that the court had exercised much indulgence to their side of the case. This was quite true and the court might well have been more strict in limiting the examinations of witnesses. The charge to the jury was, apparently, so fair as to provoke but two unimportant exceptions; one of which was obviated by charging to the effect requested; while the other related to a comment on Jones' testimony, which the court sufficiently obviated by leaving it to the recollection of the jury. The charge was, in fact, absolutely fair in its statement of facts and in its instructions as to the rules of law. The court submitted to the jury as propositions, to be established beyond a reasonable doubt, the following:

"I. That on the 23d day of September, 1900, Charles F. Jones, with intent to kill, placed a towel, wrapped in the form of a cone, containing a sponge saturated with chloroform, upon the face of William M. Rice;

"II. That William M. Rice died from the effects of chloroform and from no other cause, and

"III. That the defendant, with intent to procure the death of William M. Rice, aided, abetted, counselled, advised, or procured Jones to kill him."

The jury rendered a verdict of guilty, as charged, and, in my opinion, no other verdict could have been reached, upon a dispassionate and intelligent consideration of the evidence.

The great mass of evidence and the earnestness with which the very eminent counsel for the People and for the defendant have argued from it, for and against the result of the trial, have seemed to me to render necessary this somewhat extended discussion. The prosecution was attended with the difficulty of the situation. The deceased had led a comparatively isolated life in the community. The accused was a lawyer, who, for months, was preparing his plans in such a manner as might divert suspicion of the use of foul means. He secured a useful tool in the faithless servant, through whom he acquired the secrets of his master and was enabled to mature his plans. When ripe for fruition, the tool was there, through whom they might be executed. I think that the verdict rested upon satisfactory evidence of the truthfulness of Jones' story and of the connection of the defendant from the inception to the close of the conspiracy disclosed. The jurors were warranted in believing that death was caused by chloroform poisoning and that certain material facts, sworn to by witnesses, other than Jones, taken by themselves, led irresistibly to the one inference that the defendant's was the mind which had conceived the criminal act and induced its commission. The evidence, independently of the testimony of the accomplice, is fraught with a crushing implication of the defendant in the deliberate purpose to kill Rice, in order that he might possess his estate.

Coming from the same state, he knew of Rice's large possessions. He finds him living with Jones, his only attendant, in a most retired manner. He makes Jones' acquaintance; gains a sinister influence over him; informs himself about the affairs of Rice; induces Jones to enter into the scheme of forging, or forcing, a new will upon Rice, by which he, the defendant, not only a stranger, but one of the counsel engaged in opposing Rice in a bitter family litigation, is to benefit, as residuary legatee. He induces Jones to forge letters from the deceased to him, which will furnish evidence, later, of the establishment of friendly relations and of his having gained his confidence. With Jones' aid transfers to him of Rice's moneys and securities, in banks and in safe deposit vaults, are forged, shortly before the death and after the forging of the will; with the only conceivable object of, either, showing a boundless trust reposed in him, or of fortifying his position in the event of litigation. He gets Jones, in addition, to prepare a general assignment to him of all Rice's real and personal estate upon the agreement to pay $10,000 a year during the latter's life. He causes Jones to introduce his friend, the physician, to Rice, under strict injunctions not to mention his name before him. An effort is made to break down the old man's system, naturally healthful, by administering mercury, in the hope that death might ensue. This design fails; the intended victim rallies and so improves as to promise a continuance of life. On the Sunday, when the murder was committed, the two found themselves in a situation, where the first of a series of drafts for the payment of some $250,000, promised for the reconstruction of the Texan mill property, had been presented, and its payment put off till Monday. Baker, the personal friend and counsel of the deceased, was soon expected to arrive. Delay would endanger the success of their plans and it was resolved to remove the obstacle in the way. Jones was, plainly, the one to do the killing. He would not be suspected, as no motive would be apparent for the killing; while the defendant's interest was such as would, inevitably, fasten suspicion upon him, if he could be traced to the deceased's apartment. He had oxalic acid in his office and procures it for Jones to administer in the afternoon; but the victim could not be persuaded to drink it. Then the bottle of chloroform was given to Jones and, in the evening, while asleep, its contents were used upon Rice with success. Within an hour, the defendant appears and, when the undertaker arrives, he directs the remains to be cremated. He orders the embalming, when told that twenty-four hours must elapse before cremation would be possible. He carries off that night, all that was of value in securities and moneys. Early in the following morning, he brings to Jones, and has him fill out, the four checks, which the latter had drawn to his order and which purported to have been signed by the deceased, in various amounts aggregating $250,000. He endeavors to obtain the money, early that morning, upon one drawn upon Swenson Sons; but fails, because of the error of Jones in mis-spelling his name. This causes delay, results in the banker's learning of the death of his depositor and leads to investigations; which result in the arrest of the two. On the morning after the death, he produces the letter, purporting to be from the deceased to him and directing the cremation of his remains, and instructs the undertaker to arrange for it on Tuesday. He procures one of the checks for $25,000 to be cashed. He tells Maria Scott, the chore-woman, with no apparent relevancy to what had happened, that she is suspected of having poisoned the deceased. Late in the night of Monday, he is found by the janitor of his office building destroying papers. To several persons, within the next few days, he tells irreconcilable stories to account for the checks he had sought to use and for his large interest in the estate of the deceased. He professes to some to have had secret relations with the deceased of an extraordinarily intimate and confidential nature. He telegraphs to Holt a copy of an agreement, purporting to have been made months before, which settled the will litigation by Rice's payment to Holt of $250,000, to be made upon his death. Corroboration of material facts in Jones' testimony was not wanting. The defendant's frequent association with Jones was proved by others; as was the fact of his being a comparative stranger to Rice. Wetherbee corroborated Jones' statement about the proposed will, which Jones was to get the deceased to sign in an unguarded moment. The preparation of a will at defendant's office, from drafts furnished by him, was proved by his clerk; as was the introduction of the clerk and of the defendant's friend to Rice to qualify them as witnesses. The list of dates, furnished by defendant for the mailing of envelopes by Jones, in which to insert the letters purporting to come from Rice to him, was produced in evidence and the receipt of the envelopes bearing the "return card" of the deceased was proved. The advertisement ruse, resorted to by defendant in order to come into relations with Rice, was testified to by Baker. The assignments to defendant and the checks to his order were seen by Potts shortly before the death. Jones' brother testified to sending on the chloroform. That telephonic communication was had between the residence of the defendant and of Jones, between six and seven o'clock, on Sunday evening, was proved. That the defendant did not know the deceased, or have any intercourse with him, as Jones had testified, was an irresistible inference from the other evidence. Certainly, the defendant adduced no evidence of any intimacy and Dr. Curry corroborates Jones' statement that defendant's name was not to be mentioned.

There was enough in corroboration of Jones and when, in connection with his story and with other evidence of facts and circumstances, we consider the defendant's prompt appearance upon the scene of the murder, his appropriation of the securities and moneys in the apartment, his efforts to realize upon the forged checks and his extraordinary and unnatural attempt to have the body promptly cremated, the jury might well consider the criminal agency to have been proved beyond a reasonable doubt. The point was to establish Jones in the confidence of the jury as a witness. That was evidently accomplished. The jurors could infer the guilty connection of the two from the circumstances referred to. The checks, of themselves, filled out in the handwriting of Jones and indorsed by the defendant, were some evidence of a conspiracy and if the jury believed the signatures to have been forged, the evidence was conclusive in its nature as to the fact. What motive could Jones have had to fabricate this story of the crime? The jury might believe that he abandoned his false statements, when shown that the evidence would not piece together in a credible whole.

What was necessary to complete the picture of this crime, planned by the defendant and procured by him to be committed upon the solitary old man, who was too slow in paying his final debt to nature to suit the plans of the conspirators? Not his presence; for the statute says that that is not necessary in order to implicate him. He was not in the room, nor in the building. He was awaiting the signal from his confederate and then appears; not too promptly, but with his friend Dr. Curry. In the eye of the law, he had been there in the person of his accomplice; the miserable tool, whom he had fashioned for his purposes and had induced to do the killing.

In my opinion, justice does not demand that the defendant should have a new trial; unless errors were committed upon this trial in the rulings of the court, or in the charge to the jury, which affected some substantial right of the accused. I shall discuss some of those which his counsel has presented in his argument. Defendant complains of the court's action in compelling him to alter the phrasing of a hypothetical question to Dr. Lee, a medical expert called for the defense, as to the cause of death, under conditions supposed. The question, in resuming the conditions existing prior to death, assumed a congestion of the lungs "that was not exactly co-extensive" and the court ruled that the testimony upon the subject by the physicians had been that the congestion was co-extensive. The supposed condition had reference to Dr. Donlin's testimony, one of the coroner's physicians, and, upon referring to it, we find that, while he did not use the word "co-extensive," he testified that he "found the lungs congested extensively" and, again, that the congestion extended "all over both lungs." Had the court permitted the question to stand, it would not, in the respect mentioned, have been in real, or in substantial, accord with the facts testified to and the jury might have been confused, if not misled. Questions of a hypothetical nature put to experts for their opinion upon a state of facts, which shall aid the jurors in reaching a determination upon the issue before them, must, necessarily, be based upon facts either admitted, or which are in conflict upon the evidence. (Wharton's Crim. Evid. § 418; Cowley v. People, 83 N.Y. at p. 470; People v. Harris, 136 ib. at p. 453.) Here, the only testimony as to the condition of the lungs after death was given by the coroner's physicians, who had performed the autopsy, and by Professor Witthaus, and it was upon such evidence that the prosecution was relying. The jurors were to weigh in the mental scale their testimony, with other relevant facts. Hence, the question to the expert, for not stating a fact of the autopsy, as to which there was no conflict, was properly objected to. It is clear, beyond cavil, that, if Dr. Donlin was to be believed, he found a congestion of the lungs, which was complete as to the organ; whether it was termed "co-extensive with," or "all over both," the lungs. Under the circumstances, counsel were not at liberty to assume as a fact, in their question to the medical expert, that which had no support in the testimony. Defendant assigns error in the exclusion of conversations between the witness Adams and the deceased, whose intimate acquaintance he was. Upon his examination by the defendant, it was sought to have him state what had been said by the deceased on the subject of cremation, in conversation. The trial court ruled it out as hearsay. I think there was no error in the exclusion, prejudicial to the defendant; for, assuming that the deceased had expressed himself as being in favor of cremation, how would that be material, or relevant, as establishing the genuineness of the supposed letter from him to the defendant; which the latter had with him, on the morning after the death? What was in question was whether, as part of the scheme to obtain the property of Rice, the defendant had forged the latter's name to a letter to him upon the subject of cremation. If it were true that the defendant had learned of expressions of preference by Rice for such a disposition of the dead body, that would, at most, suggest a reason for the defendant's fabricating the letter, through the use of which he might ensure the destruction of bodily evidences of a homicide. I am unable to perceive the competency of the evidence of these oral declarations of the deceased to a third person upon the question of the genuineness of the cremation letter. The prosecution had not introduced the subject upon the direct examination. It was not offered by the defendant to disprove the forgery by him of the cremation letter, but, only, to show the views of the deceased.

Exception was taken to the admission in evidence of Jones' attempt at suicide, because of its incompetency, either, to corroborate his confession, or to affect the defendant. I think that it was properly admitted, under the circumstances of the case, as bearing upon the history of Jones' career, from his first meeting with the defendant down to his testimony upon the trial as to the elaboration of the scheme to obtain the property of Rice and as to their joint intention to consummate it by a murder. It tended, at least, to show the continuance of the conspiracy, into which Jones and the defendant had entered. It was the claim of the prosecution that the defendant was privy to the attempt, in the hope of destroying proof of his guilt. It bore upon the credibility of Jones in testifying that the defendant had advised their jointly committing suicide and had furnished him a knife for the purpose. Defendant's counsel conceded its admissibility if the act was in furtherance of the conspiracy.

It is argued that an error was committed in permitting Jones to testify to conversations at interviews, when he, the defendant and Mr. House, their counsel, or Mr. Martin, Mr. House's assistant, were together. In the first place, the portions of the record pointed out in the brief show, either that the relation of counsel had not been shown to exist, or that the conversation was conducted between the defendant and Jones, so as not to be overheard by Mr. House; or that the objection was too general. As matter of fact, the court excluded so much of the testimony of Jones as was offered to prove admissions on the part of the defendant. When at a subsequent stage of the examination, Jones was allowed to testify to having told Mr. House of his having chloroformed the deceased, it was after he had been made to testify, on his cross-examination, to having made false statements concerning the death. It was, therefore, no error to allow the prosecution to show by him that, at a date prior to his statements to the district attorney, he had told Mr. House of his having administered the chloroform. Furthermore, under the provisions of the Code, relating to privileged communications between attorney and client, (Code Civ. Proc. secs. 835, 836), the privilege is the client's and when Jones volunteered his testimony in the case, it was, necessarily, equivalent to an express waiver on his part, in open court, of any privilege accorded by the statute. It was the expression of a desire to reveal everything within his knowledge, touching his criminal conduct. But Jones was only allowed to testify to the fact that he had told his counsel of his own guilt. In the eye of the law, Jones and the defendant were distinct personalities, although connected in a scheme to commit a crime. To permit the extension of the defendant's privilege to invoke the statutory prohibition as to communications between himself and counsel, so as to exclude Jones' statements to the same counsel, acting for him, would be to stretch the statute beyond the demands of public policy.

Error is assigned in the exclusion of the testimony of one Trendley, an expert in handwriting, and our decision in the case of Hoag v. Wright, (174 N.Y. 36), is invoked by the appellant; a decision rendered since the trial of this case. In that case, an expert in handwriting had testified to the genuineness of signatures after making comparisons with certain standards, and it was held to be competent, upon cross-examination, to test the value of his opinion by submitting spurious signatures to him and by then asking him if he had not, upon a previous trial, after comparisons, pronounced them to have been written by the same hand that wrote the genuine signatures. In this case, Harmon had been examined as a witness for the prosecution. He had been for many years a clerk with Swenson Sons, the bankers of the deceased. He knew the deceased and had a familiarity with his handwriting, from seeing him write and from handling his checks. He had testified to the spuriousness of signatures of the deceased upon the disputed instruments. The defendant submitted to him certain signatures, purporting to be by the deceased, which were visible only through slits, or openings, made in envelopes, and he pronounced his opinion upon them. One of the signatures, which he had pronounced genuine, had been written, inferentially, by an expert in handwriting. Being called as a witness, this expert was shown the signature, but without the envelope, and he was not allowed to testify about it, or to the effect that he had written it. The court ruled that it was unfair, when Harmon had only seen the signature through an aperture, that Trendley should be allowed to pass upon it, aided by the knowledge that it was upon a blank sheet of paper and, therefore, not a genuine one, but, presumably, one of his own making. It was, obviously, an unfair test and the court did not abuse its discretionary power in the cross-examination. It is to be observed that Harmon was called upon to testify, by reason of his competency to form an opinion from long acquaintance with the handwriting of the deceased and not by reason of his being a professional expert in handwriting, or penmanship. I think the question is distinguishable, upon the facts, from that passed upon in Hoag v. Wright; but were it to be considered as controlled by that case, then the error must be regarded as of negligible importance, in view of the mass of expert evidence admitted upon the subject. The defendant could not have been prejudiced; for, clearly, the jury could not but infer, from the questions and the discussion, that the purpose of the defendant was to prove that Harmon had made a mistake in undertaking to testify from comparisons of signatures.

Further discussion of the errors assigned by the defendant is needless. That some of the rulings of the recorder were erroneous may be conceded; but none, in my opinion, was of sufficient gravity to justify us in reversing the judgment of conviction. The evidence conclusively established the defendant's guilt and led to the verdict rendered, and, therefore, under the command of section 542 of the Code of Criminal Procedure, we should give judgment, without regard to technical errors, or to exceptions which do not affect any substantial right of the defendant.

After the entry of judgment, the defendant moved the court for an order granting a new trial, upon affidavits alleging that evidence had been newly discovered, which would have changed the verdict. In addition to the affidavits, there was an oral examination of the affiants before the recorder and the defendant claims that facts appeared which would show that complete immunity had been accorded to defendant's accomplice, Jones; that Doctors Donlin and Williams, who testified concerning the autopsy, had stated to others, after the autopsy, that death had resulted from old age and that no suspicious cause of death had been revealed; that they had been paid by the county for their services to the prosecution in preparing themselves as medical witnesses for the trial and that there was an intimate connection between the proponents of the genuine will of 1896 and the prosecution of the defendant. These allegations, or statements, were met by denials, or explanations, and, upon a consideration of the moving papers and the evidence, the recorder refused to order a new trial. In an opinion, he observed that there was no proof of any evidence of a material character having been newly discovered since the trial; that, substantially, all the matters and conditions now claimed to have been newly discovered were within the knowledge of one, or all, of the counsel for the defendant from the inception of the criminal charge and that the cross-examination of the witnesses for the prosecution indicated the possession of knowledge, or that it could have been acquired by use of the opportunities afforded. In this I think that he was quite right. In all of this voluminous part of the record, I find nothing which, if true, was either entitled to be regarded as newly-discovered evidence, or, if it might be so regarded, went further than to affect the credibility of Jones, or of the medical, or other, witnesses. As to Jones, and the argument is based, mainly, upon his alleged immunity from prosecution, he, already, stood before the jury as a self-confessed murderer, who had told contradictory stories of the affair and who was not being tried for the crime. It appeared how Jones came, eventually, to make the confession of the facts, which were disclosed in his testimony at the trial, and the jurors had enough of the circumstances before them, with which to weigh his credibility. Furthermore, what is the materiality of the fact that immunity may have been promised him, when his story had to be corroborated by other evidence connecting the defendant with the crime? As to the physicians, Donlin and Williams, it appeared that one of the defendant's counsel knew of Dr. Williams having been at work for the prosecution; but he did not know it was to be paid for. Both physicians presented bills for their services in preparation for, and upon, the trial, which were reduced in amount, at the instance of the district attorney's office, and, as reduced, paid by the People. I am unable to perceive the materiality of this fact upon the application for a new trial. The prosecution had the right to employ the services of these physicians to testify as medical experts, in addition to having them testify to the facts of the autopsy. If their services could not, legally, be compensated for, then, it was a matter for the public authorities to inquire into. Dr. Donlin, specifically, denied any conversation with Dr. Williams, in which either had stated that death was due to old age. Their evidence as to the facts revealed by the autopsy was one step in the prosecution; while their opinions as to what the appearance of the vital organs indicated as the cause of death made another step. Their testimony, in the latter respect, was entitled to such force, as the jury chose to give to it, upon considering, with the circumstances attending their appearance as witnesses, their experience and the effect of cross-examination upon their statements.

Whether a new trial should be granted to the defendant was a matter within the discretion of the trial court, with the fair exercise of which this court will, and should, not interfere. (Code Crim. Proc. sec. 465, sub. 7, and sec. 466; People v.Buchanan, 145 N.Y. 1, 30; People v. Priori, 164 ib. 459, 472.)

There was no hasty trial and conviction; for the trial occupied ten court weeks and the record fills some 3,000 pages, exclusive of the proceedings upon the application for a new trial. It cannot, fairly, be said that the recorder was lacking in indulgence to the defendant in his rulings and it is not claimed that his charge to the jury was either unfair, or erroneous. So great was the latitude of inquiry allowed upon the application for a new trial that its matter, alone, fills a separate volume of some 1,100 pages. An appeal is not a matter of inherent right; it is one extended to a defendant by the favor of the state. Much must be left to the exercise of the discretion of the court, in which the trial is had, and interference by this court only becomes justifiable where there has been so clear an abuse of that discretion, that we can say that the defendant did not have a fair trial.

In my judgment, the evidence upon which the new trial is demanded would not change the result. It is largely cumulative in its nature and tends, principally, to contradict the former evidence. (See People v. Priori, supra.)

I think no other questions demand our consideration and I find no satisfactory reason for reversing the judgment of conviction.