Hyperlawhypertext legal databasebeta People v. Hooghkerk 96 N.Y. 149

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People v. Hooghkerk

96 N.Y. 149 Court N.Y. Decision date 1884-06-03 English

Delivered by Andrews, J.

Contents

Majority

p. 149
The People of the State of New York, Respondent, v. William A. Hooghkerk, Appellant.

Headnote

Under the Code of Criminal Procedure a defendant, held to answer a criminal charge, may not, on the return of the grand jury list and before indictment, take the objection that the law under which the grand jury was selected is unconstitutional. The court may, in its discretion, discharge the panel for causes specified (§ 338), and a defendant may interpose a challenge to an individual grand juror (§ 339), but his right to challenge the body of the grand jury because irregularly or defectively constituted no longer exists.
The provision of said Code (§ 399), prohibiting a conviction in a criminal trial on the testimony of an accomplice, “ unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime,” does not require that the whole case shall be proved outside of the testimony of the accomplice, but simply requires evidence, from an independent source, of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it.
On the trial of an indictment for arson in the third degree, ST. and J„ who admitted themselves to have been accomplices of the defendant, testified,
p. 150
in substance, that J., at the suggestion of defendant, procured an insurance of $1,000 on horses and property in a stable leased by J., with the understanding that defendant should purchase some cheap horses to be put in the stable in place of more valuable ones, which were to be removed ; that the barn was then to be fired by N., who was to receive $100 and the balance of the insurance money was to be divided between J. and defendant; that the arrangement was carried out; that on Monday or Sunday evening before the fire, which occurred Tuesday morning, 'defendant brought two cheap horses to a point near the stable, and exchanged them for two bay horses, which N. and one S., by the direction of J., had taken from the stable, and the horses received from defendant were taken back to the stable and were burned in the fire. One or two other cheap horses were, as the accomplices testified, purchased by defendant shortly before the fire and placed in the stable. The purchase at small prices and the delivery to defendant of three horses a day or two prior to the fire was proved by the vendors. S. testified to assisting in the exchange of the horses as above stated, also that when he and N. took the two horses received from, defendant back to the stable he asked N. what he was doing. J. replied, if witness would keep still he would give him $50. Another witness testified that defendant, in the evening of the day before the fire, brought to his place two bay horses, left them for a few days, and then took them away. It was biso proved that the property in the barn was insured for $1,000, and that the insurance company paid the loss. Defendant testified that the policy was in his possession at one time, but that it was given to him after the fire to secure a loan. Held, that there was sufficient corroborative evidence to sustain a conviction.
It was claimed by defendant that S. himself was an accomplice. Held, that this question was properly left to the j ury._
Defendant, on cross-examination as a witness, was asked as to his connection with other fires, and with insurance on other property burned. Held, that the testimony was admissible, in the discretion of the court, as affecting his credibility.
(Argued April 21, 1884;
decided June 3, 1884.)
Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made on the fifth Monday of January, 1884, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Albany, convicting defendant of the crime of arson in the third degree.
The material facts are stated in the opinion.
p. 151
E. Countryman for appellant.
The act of 1881 (Chap. 532, Laws of 1881), purporting to amend section 1041. of the Code of Civil Procedure, so far as it relates to the selection and drawing of grand jurors for the city and county of Albany, is within the prohibition of article 3, section 18 of the Constitution, forbidding the enactment of a local or private act for “ selecting, drawing, summoning or impaneling grand or petit jurors,” and is, therefore, null and void. (People v. Petrea, 92 1ST. Y. 128, 137-8, 143-144, 145.) The terms “jury” and “ grand jury,” as used in the Constitution, import a legally constituted body of men selected and impaneled as required by law when that instrument was adopted. ( Wynehamer v. People, 13 K Y. 426-7, 457-9, 484; Camcemi v. People, 18 id. 129, 135 ; Cruger v. Hudson di. P. Co., 12 id. 198-200; Ciarle v. Utica, 18 Barb. 451 , 454; Dawson v. People, 25 N. Y. 404 .) At the time of the adoption of the present Constitution the mode of selecting, drawing, summoning and impaneling a grand jury was fully prescribed by statute. (2 It. S. 720-724 ; 3 It. S. [7th ed.] 2558-2561; Constitution, art. 1, § 17; art. 3, § 18; Wynehamer Case, 13 H. Y. 427; Cruger Case, 12 id. 199, 200; People v. Duff, 65 How. Pr. 365 , 369; Me Quillen v. State, 16 Hiss. 587, 597; State v. McClear, 11 bfev. 39; Young v. State, 6 Ohio, 436 .) The persons composing a grand jury must be selected, drawn, and summoned as required by law, in order to constitute a legal body, authorized to find a valid indictment. {McCloskey v. People, 5 Park. Cr. 308 ; Clare v. State, 30 Md. 164 ; State v. Symonds, 36 Me. 128 ; Brown v. Commonwealth, 73 Penn. St. 321 ; Chase v. State, 20 hT. J. Law, 208; Whitehead V. Commonwealth, 18 Gratt. [Va.] 640; Pawls v. State, 16 Miss. 599 ; McQuillen v. State, id. 587; Stokes v. State, 24 id. 621; Barney v. State, 20 id. 68; Miller v. State, 33 id. 356 ; Doyle v. State, 17 Ohio, 222 ; State v. Williams, 5 Port. [Ala.] 130; Finley v. State, 61 Ala. 201 ; Scott v. State, 63 id. 59 ; Berry v. State, id. 126; Couch v. State, id. 163 ; State v. Conner, 5-Blackf. [Ind.] 325 ; Dutel v. State, 4 Green [Iowa], 125; State v. Jennings, 15 Rich. [S. 0.] 42; State v. Pratt, id. 47;
p. 152
State v. Bryee, 11 S. 0. 342; Wilbur v. State, 21 Ark. 198 ; State v. Morgan, 20 La. Ann. 442 ; State v. Jacobs, 6 Texas, 99; Bouton v. Atofe, 12 Neb. 260 ; Green v. Atofe, 59 Md. 123 , 126, 127; Glare v. zS'tofc, 30 id. 164, 176 .) A grand jury in this State is not selected, drawn or summoned by direction of the court, but under the mandate of the statute, and the courts have no power to dispense with the method prescribed by law. (State v. Symonds, 36 Me. 128 , 131.) Mere inadvertent omission of the officers intrusted with the duty of selecting, drawing or summoning jurors, to follow all the mimite directions of the statute would not, in the absence of any suggestion of fraud or injury, vitiate the organization of the grand jury or invalidate their proceedings. (Friery v. People, 2 Abb. Ct. of App. Dec. 216.) Where the objection is vital, referring not to mere matters of detail, but striking at the foundation of the organization as that it was composed of too few or too many persons, or that the officers failed entirely to perform' their official duties, such as omitting to make any selection or list of names, whatever, or to draw or summon any or all of the panel from the names selected according to law, the objection must necessarily be fatal. (Clare v. State, 30 Md. 164 , 176; Barney v. State, 20 Miss. 68 ; Stokes v. State, 24 id. 621; Finley v. State, 61 Ala. 201 ; Fitzgerald v. State, 4 Wis. 395 ; Doyle v. State, 17 Ohio, 222 ; Low's Case, 4 Me. 439 ; People v. King, 2 Caines, 98; McCloskey. v. People, 5 Park. Cr. 308 ; State v. Brice, 11 S. C. 342 ; People v. Thurston, 3 Cal. 69 ; Commonwealth v. Cherry, 2 Ya. Cas. 20; Commonwealth v. St. Clair, 1 Gratt. [Ya.J 556; State v. Griffice, 74 N. C. 316 ; State v. Brice, 11 S. O. 342; Stokes v. State, 24 Miss. 621 ; State v. McNamara, 3 Nev. 71 , 75 ; Clare v. State, 80 Md. 164 ,174; Portis v. State, 23 Miss. 578 , 580; Brown v. Comm., 73 Penn. St. 321 , 329 ; People v. Earnest, 45 Cal. 29 ; State v. Harden, 2 Bicb. [S. 0.] 533; Davis v. State, 46 Ala. 80 ; Finnegam, v. State, 57 Ga. 427 ; O'Byrnes v. State, 51 Ala. 25 ; Clinton v. Englebrecht, 13 Wall. 434 , 440; Comm. v. Norfolk Sessions, 5 Mass. 435 , 438; Nick-oils v. State, 5 N. J.. Law, 539 , 543; Chase v. State, 20
p. 153
id. 218; State v. Williams, 1 Bich. [S. C.] 188; People v. McKay, 18 Johns. 212 ; State v. Lighibody, 38 Me. 200 ; Rawls v. State, 16 Miss. 599 , 609 ; Davis v. Comm., cited with approval in Comm. v. Parker, 2 Pick. 559 , 561; Eaton v. Comm., 6 Binney, 447, 450; State v. Cantrell, 21 Ark. 127 ; Portis v. State, 23 Miss. 578 , 583; McElheron v. People, 92 111. 369, 371; /Sítete v. Symonds, 36 Me. 128 , 132; McCloskey v. People, 5 Park. Cr. 308 ; Z7. zS. v. Hammond, 2 Wood’s C. C. 197; Barney v. State, 20 Miss. 69 ; .State v. Rockafellovo, 6 1ST. J. Law, 405 ; State v. Qj'iffice, 74 N. C. 316 ; Commonwealth v. Cherry, 2 Ya. Cas. 20; Gommonwealth v. /St. Clair, 1 Gratt. [Ya.] 556; Reich v. /State, 53 Ga. 73 ; /State v. Foster, 9 Tex. 65 ; Jackson v. /State, 11 id. 261; /State v. Davis, 12 B. I. 492; 1 Chit. Grim. Law, 307; 2 Hawk. P. C. 307 ; 2 Hale’s P. C. 155 ; Strouder v. West Fa., 100 U. S. 303 ; Neal v. Delaware, 103 id. 370 .) An objection affecting the organization of the grand jury should be made at the earliest legal opportunity, to-wit: at the time of impaneling the jury, and before they are sworn. (People v. Jewett, 3 Wend. 314 , 321, 323; 1 Trial of Aaron Burr, 8; United States v. White, 5 Cranch’s C. C. 457 ; Green v. State, 59 Md. 123 , 126; McElheron v. People, 92 111. 369, 370 ; Brown v. Commonwealth, 73 Penn. St. 321 , 329; Musick v. People, 40 111. 268, 272; State v. McNamara, 3 Nev. 71 , 73, 75; Commonwealths. Clarke, 2Browne [Penn.], 235 ; United States v. Blodgett, 35 Ga. 337 ; Mershans. State, 51 Ind. 14 .) Such an objection would be available even if it were founded upon a mere statutory irregularity, and not on a violation of the Constitution. The abolition in the Bevised Statutes and the Code of Criminal Procedure of the common-law right to challenge the array does not affect the question. (People s. McKay, - 18 Johns. 213 , 218; Clintons. Englebrecht, 13 Wall. 434 , 440, 441; Code of Crim. Pro., § 238.) The court may, in its discretion, which must be legal and regular, at any time, for the causes assigned, discharge the panel and order another to be summoned. {Rex s. Wilkes, é Burr. 2527, 2539; Rook's Case, 5 Coke, 100 a; Tripp v. Cook, 26 Wend. 152 ;
p. 154
Seymour r. Pelanoy, 3 Cow. 505 , 525; Stater. Cummings, 36 Ho. 278, 279; People r. Puff, 65 How. 374 , 375, 379. The names of the persons to serve as grand jurors should be drawn from the grand jury box. (3 E. S. [6th ed.] 1016, §§ 6, 10; People v. Potrea, 92 1ST. Y. 136.) The persons summoned wrere not lawful men, as they were selected and drawn not only in flagrant violation of law, but1 in a manner and under a local statute expressly prohibited by the Constitution, and the court was'bound to take notice of it, although no statute authorized it, and even if the statute assumed to preclude the raising of the objection. (.People v. Potrea, 92 N. Y. 144 ; 1 Bishop’s Grim. Pro. [3d ed.], §§-113, 115, 872; 2 Hawk. P. C., chap. 25, § 16 ; People v. Puse, 1 Cow. 436 , note; Gardner r. Turner, 9 Johns. 260 ; O'Connell r. The Queen, 11 Clark & Fin. 351, 365, 391, 407-417; Pierson v. People, 79 N. Y. 431 .) An accomplice is one who has been concerned with others in the commission of crime, whether his guilt is in the same degree with theirs or not. (Lindsay r. People, 63. H. Y. 153 ; Pavidson v. State, 33 Ala. 350 , 354; Pollc v. State, 36 Ark. 117 ,126; Parnard v. State, 42 Tex. 260 , 263.) A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the' commission of the crime. (Code of Grim. Pro., § 399 ; People v. Courtney, 28 Hun, 589 , 593, 594.) The corroborative evidence must be of some material fact, which taken by itself independently altogether of the evidence of the accomplice, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it. (People r. Courtney, 28 Hun, 589 , 592 ; Coleman r. State, 44 Tex. 109 , 111 ; People v. Paynes, 55 Barb. 450 , 457; Childers r. State, 52 Ga. 106 , 111-113 ; Frazer r. People, 54 Barb. 306 , 309 ; Stater. Graff,Ml Iowa, 384; Watson r. Comm., 95 Penn. St. 418 , 424.) The rule requires more than such evidence as merely created a suspicion of guilt. (People r. Williams, 17 Week. Dig. 356, 358 ; McCalla r. State, 66 Ga. 346 ; Morrison r- State, 14 Hob. 527; Graft v. Comm., 80 Iiy. 349, 351, 352;
p. 155
People v. Ames, 39 Cal. 403 .) Where the fact' proven or corroborated is consistent with innocence it cannot be accepted as any proof of guilt. (People v. Courtney, 28 Hun, 589 , 593; Ormsby v. People, 53 N. Y. 472 , 475 ; Frazer v. People, 54 Barb. 306 , 309; People v. Haynes, 55 id. 450, 457, 458 ; Comm. v. Holmes, 127 Mass. 424 .) The court erred in permitting the district attorney to read to the jury from the opinion of the Court of Appeals in Lindsay v. People ( 63 N. Y. 157 -8), and discussing at length the facts and rules recognized in that case relating to the corroboration of accomplices as applicable to this case. (People v. •Anderson, 44 Cal. 65 , 70 ; Tucker v. Henniker, 41 N. II. 318 ; Franklin v. State, 12 Md. 236 ; Murphy v. State, 6 Ind. 490 ; Davenport v. Comm., 1 Leigh, 588 ; Delaplaine v. Qrenshaio, 15 Gratt. 458 ; Rolf v. Rumford, 66 Me. 564 ; Ferguson v. State, 49 Ind. 33 ; CoMe v. Coble, 79 N. C. 589 ; Tuller v. Talbot, 23 •111. 299, 804; Sprague v. Craig, 51 id. 289 ; Berry v. /S7«¿e, 10 Ga. 512 , 522 ; Bidlock v. Smith, 15 id. 396 ; v. Williams, 65 N. C. 506 ; A?ey. v. Thursfield, 8 Carr. & Payne, 269.) The jury are not judges of the law in criminal cases. (Pierce v. State, 13 N. II. 336.) The court erred in receiving in evidence the declaration of the accomplice Jones, to Nugent, his assistant, in the absence of Hooghkerk, to the effect that the latter was engaged in the “ business of burning barns ” and in permitting the district attorney to inñame and prejudice the jury against the defendant by referring to this “business of burning barns ” as “ a recognized calling and industry of this man,” and “ that Jones knew about this; knew Nugent was in the business ; knew the defendant was in the business, and that he could approach him fearlessly and openly about it.” (Greenfields.People, 85 N. Y. 76 , 86, 88 ; Peoples. Davis, 56 id. 96, 101-2 ; Hobby s. Hobby, 64 Barb. 277 ; Ormsby s. People, 53 N. Y. 472 ; Ilubbell s. Meigs, 50 id. 486 ; People s. Gorham, 16 Hun, 93 ; Osborn s. Robbins, 7 Lans. 44 ; N. F., etc., Co. v. Gleason, 78 N. Y. 505 , 515 ; Greenfield s. L>eople, 35 id. 76, 88; People s. Davis, 56 id. 96, 103 ; Baird s. Mayor of Nev) Fork, 18 Weekly Dig. 40 ; N. F.,etc., Co.
p. 156
v. Gleason, 78 27. Y. 504,516 ; People v. Schweitzer, 23 Mich. 301 ; People v. Corbin, 56 27. Y. 363; Coleman v. People, 55 id. 81, 82; Corncross v. People, 17 Weekly Dig. 384, 385 ; Martin v. Orendorf \ 22 Iowa, 504 ; Tns v. People, 49 111. . 410 ; Coble v. Coble, 79 27. C. 589 ; Fergerson v. State, 49 Ind. 33 ; Rolf v. Rumford, 66 Me. 564 ; People v. Mitchell, 62 Cal. 411 .) While the practice has obtained to some extent of allowing questions to a witness, the answers to which would tend to impeach his credibility, the courts have uniformly excluded questions which do not clearly have that effect. {People v. Crapo, 76 27. Y. 288, 290, 292; People v. Brown, 72 id. 571, 583 ; People v. órcty, 7 id. 378.)
D. Cady Herrick, district attorney, for respondent.
The court will not listen to an objection made to the unconstitutionality of an act by a party whose right it does not affect, and who, therefore, has no interest in defeating it. ' (Cooley’s Const. Lim. 163; People v. Brooklyn R. R. Co., 89 27. Y. 75; Pierpont v. Loveless, 72 id. 211-216; Wellington’s Petition, 16 Pick. 87 ; Comm.w. v. Wright, 42 Am. Rep. 203 .) The manner in which the jurors were selected and drawn is something to which the defendant cannot take exception ; no rights of his are involved; it is something in which he has no interest. The only thing that the law guarantees him against is that an indictment shall not be found against him by his prosecutors or by the witnesses against him. {Friery v. People, 2 Keyes, 425 ; Cox v. People, 19 Hun, 430 ; Carpenter v. People, 64 27. Y. 483; Pierson v. People, 79 id. 424-431.) The law does not now, and for many years past, has not permitted the defendant to go back any further in the process of obtaining'jurors than the summoning. (3 R. S. [6th ed ] 1018, §§ 27, 28; Carpenter v. People, 64 27. Y. 453; Dawson v. People, 25 id. 404, 405; People v. Harriott, 3 Park. 112.) Sections 237 and 239 of the Code of Civil Procedure, by defining what proceedings might be taken, excluded all others. {People v. Petrea, 92 27. Y. 128, 145; People v. Ilovey, 1 27. Y. Grim. 285, 286.) Defendant, having become a witness in his own behalf)
p. 157
was subject to be cross-examined, the same as any other witness, and upon the same subjects, even although the answers elicited might tend to show that he had been guilty of other crimes; and such examination is largely in the discretion of the trial court. (People v. O. da T., 83 1ST. Y. 460; People v. Casey, 72 id. 391; People v. Foelke, 1 H. Y. Grim. 495.) The limits within which counsel are to be restrained is matter of discretion, and an exercise of that discretion cannot be reached and corrected by an exception. {People v. Finnegan, 1 Park. 147-152 ; Walsh v. People, 88 1ST. Y. 458-465; 22 Moak’s Eng. Eep. 742, note.) Any attempt by legislative enactment to say what weight shall be given to evidence is an infringement upon the province of the jury, and a violation of the right of trial by jury. (Wynehamer v. People, 13 H. Y. 447; People v. Lyon, 27 Hun, 180 ; State v. Berwick, 13 E. I. 211; 43 Am. Eep. 26 ; State v. Thomas, 36 id. 102, note.) The evidence as to the insurance was competent and material to prove motive, which is always material. (Burrill’s Circum. Ev. 283, 312; Pierson v. People, 79 1ST. Y. 424-426, 435; McKee v. People, 36 id. 113, 116; Pontius v. People, 82 id. 339-347; Stephen’s Dig. of Ev., part 1, art. 7.) An accomplice is one equally concerned, or a copartner in the commission of a crime. {People v. Lindsay, 63 N. Y. 153 .)

The indictment against the defendant Hooghkerk was found at the Court of Sessions of Albany county, at the September term, 1883, by a grand jury selected in pursuance of chapter 532, of the Laws of 1881. Before the jury was sworn or impaneled, the defendant, who prior to the commencement of the term, had been committed to answer to any indictment that might be found against him thereat, filed in open court a written protest or objection, under oath, against the swearing, organization, ■ or recognition by the court of the persons summoned as grand jurors, or of any of them as a grand jury, on the ground that they were not drawn or summoned as required by law. The same facts in support of the

p. 158
objection were presented as in the Petrea Case (92 3ST. Y. 128).

The question is the same as was there considered and determined, except as it is affected by the consideration that in this case the objection was raised before indictment, and before the grand jury had been organized. In the Petrea Case it was held that the act of 1881 was unconstitutional in so far as it provided for the selection of grand jurors for Albany county, for the reason that it was a local bill for the selection of grand jurors, and as such, within the prohibition of article 3, section 18, of the State Constitution, which prohibits the passage of a local bill for “ selecting, drawing, summoning or impaneling grand or petit jurors.” But the court further decided that a defendant might nevertheless be put upon his trial upon an indictment found by .a grand jury selected under the act; that no constitutional right of the defendant was thereby invaded; that the right of the defendant to raise the objection was a matter of procedure, subject to the control of the legislature; and that the objection was not one which by the new procedure in criminal cases could be taken by a defendant after indictment. The only question now open on this appeal, upon this branch of the case, is, whether, under the Code of Criminal Procedure, a defendant held to answer a criminal charge, may on the return of the grand jury list, and before indictment, take the objection which under the decision in the Petrea Case he would be precluded from taking after indictment. If the Code permits this discrimination, the objection must prevail, otherwise the case is governed by our former decision. By section 238, a challenge to the panel or array of grand jurors is prohibited, but the section authorizes the court in its discretion to discharge the panel for causes specified, and among others “ that the requisite number of ballots was not drawn from the grand jury box of the conn ty.” Section 239 authorizes a challenge to be interposed to an individual grand juror for certain specified causes. Taking the two sections together, it seems to be quite evident that section 238 was intended to confer upon the court a discretionary power

p. 159
to discharge the panel, to be exercised upon its own volition, and in view of all the circumstances, while section 239 was intended to secure to an accused person the right to purge the panel of one or more particular grand jurors who might be objectionable, for bias, or other specified cause. The power conferred by section 238 is in the general interest of public justice, that conferred by section 239 is in the particular and special interest of the person accused. The objection interposed to the panel in this case in behalf of the defendant was in tire nature of a challenge to the array, and the right of a defendant to challenge the body of the grand jury because irregularly or defectively constituted, no longer exists, and we find no provision of law permitting a defendant to raise any objection to the grand jury, except an objection to individual 'jurors under section 239. We think the objection of the defendant to the grand jury was properly overruled. It may not be out of place however, to express the opinion that the court, except for the fact that the grand jury which found the indictment in this case, although selected and organized after the decision in the Petrea Case, was selected before the board of supervisors had an opportunity to prepare a grand jury list in conformity with the general law, might very properly on its own motion have discharged the panel. It is very unseemly that grand jurors should continue to be selected under the act of 1881, after that law has been declared unconstitutional, and the omission of the board of supervisors to perform the plain duty of preparing a proper grand jury list, ought not to be longer tolerated.

The other questions arise upon exceptions taken on the trial. The principal one is an exception on behalf of the prisoner to the refusal of the court to charge that there was no evidence tending to corroborate the testimony of the witnesses Jones and ¡Nugent, who concededly, by their own confession, were accomplices of the defendant in the commission of the crime charged in the indictment.

The general facts relating to the alleged crime, as testified to by the accomplices, are, that on and prior to January 2,

p. 160
1883, Jones, the lessee of a stable In the city of Albany, bad procured an insurance of $500 on horses and property therein, which, at the suggestion of Hooghkerk, he increased to $1,000, with the understanding that Nugent was to fire the barn, for which he was to receive $100, and that the insurance money should be divided between Jones and Hooghkerk. It was a part of the arrangement that Hooghkerk should buy some cheap horses, to be put in the stable in place of other more valuable horses, to be removed before the fire. The fire occurred on Tuesday, January 2, 1883, at about 12:50 in the morning. On Monday or Sunday evening before the fire, Hooghkerk, as Nugent testifies, brought two cheap horses to a point near the stable, and there exchanged them for two other horses belonging to Hooghkerk, which Nugent and one Strevell, by the direction of Jones, had taken from the stable, and the horses received from" Hooghkerk were taken back to the stable and were burned in the fire. One or two other cheap horses were, as the accomplices testify, also purchased by Hooghkerk shortly before the fire and placed in the stable. It is not claimed that Hooghkerk either set the fire or was present when it was set. The evidence is that it was set by Nugent, who admitted the fact. The evidence contained in the record goes into great detail, but it is unnecessary for the present purpose to refer more particularly to the evidence of the accomplices. It is sufficient to state that if their testimony is true there can be no question of the guilt of the defendant. On the other hand, if their testimony is excluded from the case it is not probable that lie could have been convicted, although circumstances would remain calculated to excite grave suspicion.

The main facts proved by other witnessess are as 'follows : Christopher Ferns testified that he sold ,a horse to Hooghkerk in December, before the fire, for $15, and delivered it within a few days; and Hooghkerk testified that it was delivered New Tear’s night. John Engart testified to the sale of a horse to Hooghkerk two or three days before New Tear’s for $15, and to its delivery either Sunday or Monday night before the fire. George Brown testified to a like sale a few days be

p. 161
fore New Year’s for $10, and that the horse was delivered to Hooghkerk on Sunday or Monday night before the fire. John Feigenbaum testified that the defendant, Hooghkerk, about the 1st of January, 1883, in the evening, brought to his place, about a mile and a half from Albany, two bay horses with collars and blankets, and left them with him a few days, and then took them away. John Strevell testified that he worked for Jones at the time of the fire; that on Monday evening, he went to the stable and found Jones and Hooghkerk there; that Jones brought out two bay horses and asked him to go and help Nugent exchange them; that they went with thém to Washington street about a block distant from the stable, and met Hooghkerk there in a carriage with two other horses, which were exchanged for the bay horses which Hooghkerk took away, and that the witness and Nugent took the two horses received from him to the stable; that he asked Jones what he was doing; that Jones said, “ if I (Strevell) would keep still he would give me $50 ; ” and that the witness replied, “ I did not want his $50, or know any thing about his business,” and that he then went home. Nugent testified that when he saw Strevell coming Jones was throwing the straw around the barn floor; that he told. Jones that Strevell was coming, and “ Jones catched the lamp and blew it out; ” Jones said to Strevell, “ You keep still and I will give you $50 and a suit of clothes; ” that Strevell said “ he didn’t want no $50, and didn’t want to know nothing of his business.” It further appeared that the property in the barn was insured for $1,000. The policy was put in evidence, and it was proved that the insurance company paid the loss. Hooghkerk testified that the policy at one time was in his possession, but that it was given to him after the fire to secure a loan, and that Jones, on some pretense,- obtained it from him, and that he received no part of the insurance money.

The statute (Code of Grim. Pro., §. 399) declares that “ a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime,

p. 162
(See Chap. 360, Laws of 1882.) Prior to this statute the rule in the State permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice (People v. Costello, 1 Denio, 83 ), but it was the uniform custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which before the statute courts were in the habit of stating to the jury for their guidance, although, as has been said, it was not enforced as a rule of law.

It is plain that independently of the statutory rule corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it, and such is the doctrine of the best considered cases. “ But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary, and would defeat the policy of the law which permits the use of accomplices as witnesses in aid of, and in the interest of public justice.

We think there was evidence in this case tending to connect the defendant with the commission of the crime charged against him, independently of the testimony of Jones and Mu-gent. The evidence of Strevell as to what took place at the barn, in connection with the subsequent fire, leads to an inference of an incendiary burning. Indeed, this is the only reasonable inference, from the conduct of J ones, in attempting to bribe Strevell to keep silence, interpreted in connection with the mysterious exchange of horses, the fire, and the insurance. The connection of Hooghkerk with the felony is not directly shown by testimony, independent of the evidence of the accomplices. But he is shown by Strevell to have been in the immediate vicinity of the stable shortly before the fire,

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engaged in the exchange of horses under suspicious circumstances. The fact that he purchased cheap horses, which were delivered to him on Sunday or Monday evening, is established by the testimony of independent witnesses, and is, indeed, admitted by Hooghkerk, and the jury may well have discredited his explanation of these transactions. The testimony of Feigenbaum that Hooghkerk brought the bay horses to his place on the night of the fire, or about that time, confirms Strevell in part of his story, and closely connects Hooghkerk with the transactions of the night of the fire. It cannot, we think, be doubted that the circumstances proved, outside of the testimony of the accomplices, show such a relation between Jones and the defendant, and such a sequence of events as to justify the inference, not only that the crime of arson was committed, but that Hooghkerk was accessory to it. The claim that Strevell was himself an accomplice, was properly left to the jury. The transactions he testifies to may have aroused, and probably did arouse, his suspicions, but it is quite evident that he was not an original party to the scheme for burning the barn, and it was for the jury to determine whether, when the transactions testified to occurred, he had any guilty knowledge of the impending crime.

The declaration of Jones to Nugent, in the absence of Hooghkerk, to the effect that the former was engaged “ in the business of burning barns,” was coupled with the further declaration that he told Hooghkerk “ what Jones said.” The court replied to the motion to strike out this evidence", by saying, “ I will retain it for the present. Tour motion is good unless it is connected in some way.” There was no subsequent motion made by the defendant in respect to this evidence. When the motion was made, it appeared that the remark of Jones was communicated by Nugent to the defendant, and the exception to the disposition of the motion at that time was not well taken.

The questions put to Hooghkerk on his cross-examination, with reference to his connection with other, fires and with insurance on other property burned, were admissible in the dis

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cretion of the court, as affecting his credibility, within the cases. (People v. Casey, 72 N. Y. 393 ; People v. Noelke, 94 id. 137; People v. Irving, 95 id. 541.)

There are no other questions requiring notice. We find no error in the record, and the judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.'

Cases cited