People v. Smith

The defendant appeals from a judgment of the County Court of Monroe county convicting him of the crime of grand larceny in the first degree. He challenges the sufficiency of the evidence upon which, the judgment of conviction rests and contends that errors were committed upon the trial prejudicial to him.

Harriet F. Newcomb died Steptember 24, 1913, in the city of Rochester, leaving an estate consisting largely of stocks, bonds and other securities, amounting to several hundred thousand dollars. She had been a resident of the city for many years and during the last ten or twelve years of her life the defendant had been her secretary and confidential agent, was familiar with her affairs and largely transacted her business and for the last eight years of her life he lived in her home. Although it does not very clearly appear, I think it may be inferred from what appears in the record and the

Within a week or so after her death a representative of the Fidelity Trust Company of Rochester, the executor named in her will, called upon the defendant at Mrs. Newcomb’s house and obtained from him certain silverware, jewelry and securities consisting of stock and mortgages, amounting to approximately $100,000. These securities were taken out of the defendant’s desk. After expressing some surprise to defendant that these valuable papers and securities should be lying loose in the desk, the representative asked him whether there was anything else and defendant said there was not. The representative asked for Mrs. Newcomb’s books of account and defendant said she kept none. He asked for bank books and defendant produced one or two. He asked for canceled checks and the defendant stated that they had been destroyed.

But the defendant was not frank and truthful in making these statements. Later in the day the trust company’s representative went to Mrs. Newcomb’s house again, when the defendant was absent, and discovered not only that there were books of account, but also canceled vouchers, pass books and other miscellaneous records covering transactions for several years, and later it was discovered that there were securities amounting. in value, as is claimed, to $100,000, which at one time had belonged to Mrs. Newcomb and for which the defendant had not accounted, among others five bonds of $1,00 each which he afterward sold. It is the misappropriation of these bonds upon which this conviction rests.

After this discovery had been made and was called to the

It also appeared that Mrs. Newcomb had apparently conveyed to him on the 30th day of May, 1913, a house and lot situate on North Washington street, in the city of Rochester, and certain Michigan real estate, and according to the defendant’s statement the bonds in question were given to him at the same time.

The defendant contends that his claims is corroborated by the testimony of Myron W. Greene, who was a broker, and negotiated the sale of many of the securities, and was the notary public who went to Mrs. Newcomb’s house at defendant’s request and took the acknowledgments of the deeds, and also by the testimony of the witness Lewis P. Warner, who was a friend and former partner of the defendant. Greene testified that Mrs. Newcomb stated to him at the time he took the acknowledgments that she wanted to give the defendant certain securities, and had given him some. According to Warner’s testimony she told him in February preceding that she had given to the defendant the “ Spencer Transit [Spencer Trask] ” bonds, and he further testifies that he saw the bonds in question in the defendant’s Mill street office on June 3, 1913. The defendant in his testimony before the surrogate in the proceeding for the discovery of assets belonging to the estate of Mrs. Newcomb testified that they were kept in the safe in his office from the time they were bought for her and that he desposited the interest coupons to her credit up to the time of her death; and he also claimed to the representatives of the trust company that there was an agreement between Mrs. Newcomb and him that he should pay the interest to her during her life and also pay all of the household expenses.

It also appeared by the testimony of Quincy Van Voorhis, an old friend of Mrs. Newcomb’s, that he had a conversation

The transaction relating to the conveyance of the real estate . is itself not free from suspicion. The defendant had asked the attorney who usually did Mrs. Newcomb’s legal business to’ prepare a deed of the North Washington street house and lot, but said nothing to him about the Michigan property. The attorney refused to draw the deed, stating to defendant that Mrs. Newcomb was sick and old, and he would not draw any deeds to the defendant without orders from her direct. That she was old and infirm at that time clearly appears.

Furthermore, at about the time when. it is claimed these alleged gifts were made, Mrs. Newcomb was making codicils to her will, and the defendant is not mentioned in them. The suggestion that Mrs. Newcomb wanted to give the defendant a substantial part of her property, but did not wish to make such provision by will, is not forceful, because she did give to him a legacy of $3,000 by her original will made July 3, 1911, and that gift was not disturbed by either of the subsequent codicils, one of which was made October 11, 1912, and the other August 11, 1913, the last one only about a month before her death.

It is unnecessary to further collate the facts and circumstances. The advanced age, confidential relation and circumstances in connection with these various transactions, and the conduct of the defendant after the death of Mrs. Newcomb with reference to these securities, are such as to discredit the defendant’s claim that these securities were honstly acquired by him. The evidence amply sustains the verdict of the jury.

As to the other points, the defendant contends:

1. That there is a fatal variance between the allegations of the indictment and the proof. It is urged that the offense proven, if any, was in misappropriating the property which the defendant received as custodian from the owner, Harriet F. Newcomb, and that he could not be convicted of stealing property from the Fidelity Trust Company as its agent, servant and bailee.

There is nothing in this contention, because upon the death

2. It is contended on behalf of the defendant that prejudicial error was committed in rulings upon questions relating to evidence, among others, (a) in receiving testimony of the defendant given upon the discovery proceedings; (b) showing the commencement and pendency of the civil action, and (c) in reading from the pleadings in, that case.

As to the first, defendant contends that serious error was committed because, in effect, he was compelled to be a witness, against himself. That contention is based upon the provisions of section 2443 of the Penal Law, which provides that no person shall be excused from testifying in any civil action or legal proceeding to any facts showing that a thing in action has been brought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime, but no evidence derived from the examination of such person shall be received against him upon a criminal prosecution.

The district attorney contends that defendant was not required to give any testimony in the discovery proceedings:

The witness Joseph McLean, the attorney for the trust company, was called as a witness by the prosecution. He testified that the defendant had made declarations to him respecting the bonds in question, and detailed to some extent the testimony given by the defendant in the discovery proceedings. The defendant’s counsel, upon cross-examination, very fully examined him, bringing out the claim which the defendant made with reference to these bonds, and it was not until after the district attorney was reading excerpts from the defendant’s testimony, relating to other securities, that objection was made, and then, aside from the general objection, the specific point was made that only such testimony as related to the bonds in question was competent, and at the close of the reading of the excerpts a motion to strike out all of the testimony except such as referred to these bonds was made, upon the ground that it was incompetent, -'immaterial and irrelevant to the issues which were being tried.

The point which is now made, that this testimony was incompetent under section 2443 of • the Penal Law, was not even remotely suggested upon the trial. That objection should not now be permitted to prevail, even if tenable. (Daly v. Byrne, 77 N. Y. 182 , 187, 188; Wightman v. Campbell, 217 id. 479; 1 Wigm. Ev. § 18.) As was said by Judge Folgee in Dalv

The evidence here was not in its essential nature incompetent. The facts embodied in the testimony were material; only the manner of proving them is involved in the objection now urged, and that objection was not specifically made on the trial.

As to the objection to testimony relating to other securities, we think the transactions were not so unrelated to the one in question as to make the evidence .incompetent. (People v. Katz, 209 N. Y. 311 ; People v. Duffy, 212 id. 57.)

We are also of the opinion that it was proper to show the pendency of the civil action. The complaint charged the defendant with misappropriating the bonds in question and was pending when he left the city and went to Canada and England, secreting his whereabouts. As to the objection which is now urged, that the answer was incompetent under section 523 of the. Code of Civil Procedure, what has been said with reference to receiving in evidence the testimony of the defendant upon the discovery proceedings is largely applicable. No such objection

The other objections urged by the defendant need no special comment. We think none of them present reversible error. It is true, as urged on behalf of the defendant, that a defendant charged with a crime must be prosecuted according to the forms of law, and that his guilt must be established, if at all, by legal evidence. (People v. Pettanza, 207 N. Y. 560 .) Upon the other hand, the salutary provision of law should not be overlooked, requiring an appellate court to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Code Crim. Proc. § 542.)

We are of the opinion that the defendant had a fair trial; that there are no errors which require or warrant the granting of a new trial, and that the judgment of conviction and the order denying a new trial should be affirmed.

All concurred, Foote, J., in a separate memorandum, and He Angelis, J., in a separate opinion, except Lambeet, J., who dissented in an opinion.

(concurring) :

I concur in the opinion of my brothers Reuse and De Angelis. In addition I have the following to suggest in reference to the objection now urged by defendant’s counsel upon this appeal for the first time to the admissibility of defendant’s testimony in the so-called discovery proceeding,

This statute should be construed with reference to its origin and history, in view of the purpose for which it was originally adopted. It first appears in chapter 259 of the Laws of 1818, entitled “ An act to prevent abuses in the practice of the law, and to regulate costs in certain cases.” This act (§1) prevents attorneys. from buying bonds, promissory notes, bills of exchange or other choses in action for the purpose of commencing actions thereon. Section 2 gives a defendant sued upon a chose in action so purchased by attorney a right to examine the attorney or the plaintiff on the trial, and provides “ that any evidence derived from the examination of any such attorney or counsellor, shall not be admitted in proof on any criminal prosecution against such attorney or counsellor, for a viola

In view of the origin of this act, I think it should be construed to apply only to cases of the purchase, sale or receipt of things in action contrary to some statutory provision against it, not to a case where a thief sells the property he has stolen,

(concurring) :

This is an appeal taken by the defendant from the judgment of the Monroe County Court, entered June 9, 1915, convicting him of the crime of grand larceny in the first degree.

The indictment charged the defendant with stealing from the Fidelity Trust Company of Rochester, on or about October 15, 1913, five first refunding mortgage sinking fund five per cent gold bonds of Consolidated Coal Company of Maryland, conditioned for the payment of $1,000 each December 1, 1952, and interest semi-annually, of the value of $5,000 numbered respectively 5939, 12123, 12124, 12125 and 12126.

There are three counts in the indictment. The first charges the crime under subdivision 2 of section 1290 of the Penal Law, the second, under subdivision 1 of that section, and the third, in the common-law form for grand larceny.

The judgment is attacked on various grounds, but only four of these grounds seem to merit our attention, to wit, (1) that there is a variance in the proof from the indictment; (2) that evidence was improperly received of crimes other than that charged in the indictment; (3) that the testimony of the defendant in a proceeding in the Surrogate’s Court for the discovery of assets was improperly introduced in evidence by the district attorney, and (4) that the complaint and the defendant’s answer in a civil action brought by the trust company against the defendant to recover the bonds described in the indictment and other property were improperly received in evidence.

To the end that there may be a proper consideration of the questions raised by the appellant, a brief account of the facts and circumstances claimed by the respondents to establish the commission of the crime charged is necessary.

• In about the year 1902 Harriet F. Newcomb, a widow of advanced years, was residing at No. 292 Oxford street, in the city of Rochester, N. Y. She had no children and no near

Mrs. Newcomb transacted business with the Fidelity Trust Company of Rochester, and its attorneys, Duffy & McLean, did the principal part of her law business and drew her will and the codicils thereto.

On the 30th day of May, 1913, Mrs. Newcomb conveyed to the defendant a house on Washington street in Rochester and some lots in the State of Michigan. The conveyances were acknowledged before one Myron W. Greene, who will be referred to hereinafter. Mr. McLean, of the firm of Duffy & McLean, testified that the defendant came into his office one day and said that Mrs. Newcomb wanted him to prepare a deed from her to the defendant for this house and lot on North Washington street and that he (McLean) told defendant that he would not do any such thing; that he told defendant that any time that Mrs. Newcomb wanted him to do any business for her she came to him and told him about it and talked to him about it; that he told defendant that she was a sick woman and an old woman and “ if she wants me to draw a deed to any property she has a telephone in her house and she can call me on the telephone and I will go to her house if she is too sick to come to my office, and I don’t propose to draw any deeds to you from her without orders from her direct.” McLean testified that he never did receive any orders from her with reference to the property.

On the 24<th day of September, 1913, Mrs. Newcomb died at

By what may be regarded as the disposition of the residuum of the estate she directed the sale of her real estate (except her homestead) and the remainder of her property and the distribution of the proceeds among the general legatees in proportion to the amounts of their legacies respectively, and in case her estate should not be sufficient to pay all the legacies in full she directed a proportionate reduction of each legacy whose amount exceeded $2,000.

By the first codicil she makes" a change in the disposition of her furniture, and disposes of her jewelry, plate, pictures, china and bric-a-brac, but otherwise ratifies her will. By the second codicil she revokes a legacy of $3,000 to Mrs. Farrington, and again ratifies her will in other respects. In neither of the codicils is the defendant mentioned.

Through an exchange with W. W. Kneath & Co. (dealing in Spencer Trask securities) of Kaw Valley bonds belonging to Mrs. Newcomb, she acquired and became the owner of the bonds described in the indictment on the 22d day of January,

Certain bonds and notes, referred to on the trial as “ Spencer Trask securities,” including the bonds set forth in the indictment, were purchased, and owned by Mrs. Newcomb in her lifetime, and are described with other securities and obligations in Schedule A annexed to the complaint in the action brought by the executor of Mrs. Newcomb’s will against the defendant, appearing in the appeal book. These Spencer Trask securities and the other obligations described in that schedule were, with one or two exceptions, indisputably purchased and owned by Mrs. Newcomb in her lifetime, and those so excepted, while claimed by the defendant to be his and to have been purchased by him, are claimed by the People to have been in fact purchased either by Mrs. Newcomb, or with her money converted by the defendant to his own use, with criminal intent.

To be more specific, the evidence shows conclusively that Mrs. Newcomb bought and paid for the bonds and obligations mentioned, at the prices and the times, respectively, in the following, and that the same are known in the case as the Spencer Trask securities:

Date of Purchase Price

Five first refunding five per cent bonds of the Consolidated Coal Company of Maryland conditioned for

the payment of $1,000 each January 22, 1912, $4,350 00

Ten first mortgage five per cent bonds of Stephenville North and South Railway Company of Texas, conditioned for the payment of $1,000 each ........... March 15, 1913, 9,600 00

Five ten-year five per cent gold notes of Central States Electric Corporation for the payment of $1,000 each November 18, 1912, $4,625 00

One five per cent equipment bond of Virginia and Southwestern Railway Company conditioned for the payment of $1,000............... August 18, 1913, 990 70

Five one-year five per cent notes of New York, New Haven and Hartford Railroad Company, due December 1, 1913, for the payment of $1,000 each...... December 7, 1912, 500 00

Ten first six per cent bonds of the Locomobile Company of America conditioned for the payment of $1,000 each « payment of $1,000 each. . . . October 29, 1912, 9,750 00

Three first mortgage five per cent bonds of Burlington Railway and Light Company conditioned for the payment of $1,000 each. September 24, 1912, 2,835 00

Fifteen first and refunding five per cent bonds of Indiana Railway and Light Com-

pany conditioned for the payment of $1,000 each (paid for March 15, 1913), temporary receipts then taken for which bonds were delivered June 14, 1913................March 15, 1913, 14,100 00

These so-called securities were transferable by delivery.

It also appears that Mrs. Newcomb purchased of Myron W. Greene on the 16th day of August, 1909, ten bonds of the city of Seattle, State of Washington, conditioned for the payment of $1,000 each, for the sum of $1,000. The explanation of the purchase and disposition of these bonds appears in the testimony of Mr. Green and presents by itself an interesting chapter in the history of the alleged crime. In view of the other evidence in the case it would have justified the jury in believing that substantially,all that Greene said that was favorable to the People was worthy of belief and that substantially all that was said by him that was favorable to the defendant was unworthy of belief. Although called as a witness by the People, his relation to the transaction was of such a nature as to "justify the jury in the belief that much of his testimony was given in an effort to protect himself from suspicion of complicity with the defendant in the commission of the crime.

Referring again to the schedule annexed to the complaint in the action heretofore mentioned, the supposed property mentioned in such schedule described in the following seems not to have been sufficiently referred to in the evidence to require further comment other than to call attention to the fact:

Two three and a half per cent convertible bonds of Pennsylvania Railway Company conditioned for the payment of $1,000 each.

Five debenture bonds and twenty-five shares of stock of Dean Alvord Securities Company conditioned for the payment of $1,000 each.

The record discloses that Mrs. Newcomb purchased from Harris,-Forbes & Co. five bonds of the Pacific Gas and Electric Company conditioned for the payment of $1,000 each, mentioned in the schedule referred to.

Defendant also claims to be the owner of a certificate of deposit, No. 641, issued by Rochester Trust and Safe Deposit Company to Mrs. Newcomb September 2, 1909, for the payment of $10,000, also described in the schedule.

It appears that the defendant, through Mr. Greene, the broker, after the death of Mrs. Newcomb, sold and disposed of certain bonds and obligations referred to in the foregoing, described in the following, at the times and for the price respectively stated in the following:

Date of Sale Price

Ten Stephenville North and South Railway Company bonds .................. October 16, 1913, $8,484 72 Five Central States Electric

Corporation gold notes..... October 9, 1913, 4,543 83 One $1,000 Virginia and Southern Railway Company bond October 23, 1913, 986 38

Five Consolidated Coal Company of Maryland bonds

(described in indictment)... October 15, 1913, 4,343 75 Five bonds of Pacific Gas and

Electric Company ........ October 10, 1913, 5,000 00 O ===================

As already appears, Mrs. Newcomb died September 24,1913, and on that same day the defendant saw Mr. McLean, the attorney who drew her will, and notified him of her death.

By appointment Mr. Vollertson, assistant secretary of the Fidelity Trust Company, named as executor of Mrs. Newcomb’s will, met the defendant at the late residence of Mrs. Newcomb on the 30th day of September, 1913, where he obtained from the defendant her silverware and jewelry. Vollertson testified that he asked the defendant if there were any other effects belonging to her which he thought ought to be in the possession of the executor, and that, receiving an answer in the affirmative, the defendant took Vollertson into the library and from a drawer or drawers in a desk took and handed to Vollertson stocks and mortgages amounting in value to more than $100,-000, a list of which appears in the printed record. Vollertson further testified that after he had expressed surprise that there should be this amount of valuable papers and securities lying around loose in the desk, he asked the defendant if there was anything else and that the defendant replied that there was not. Vollrtson further testified that he asked the defendant for Mrs. Newcomb’s books of account and that he replied that she had none; that when Vollertson asked defendant for her bank books he produced one or two; that he asked defendant for her canceled checks and defendant said they had been destroyed; that Thomas Brown was present on this occasion. Vollertson further testified that later in the day he went again to Mrs. Newcomb’s house and there met bv appointment Thomas Brown, the husband of the niece to whom the house had been devised,

It will be remembered that the will was filed with the petition for probate, October 1, 1913, and was probated October 10, 1913. Quincy Van Voorhis testified that the defendant was at his house about the time the will was probated and stated in a conversation that Mrs. Newcomb did not give him as much as people supposed; that she had given him the Washington street house and some lots in Michigan; $3,000 in her will; a claim of doubtful value in litigation against somebody by the name of Welch; a claim in the Dean Alvord Company, also of doubtful value; and that was all she had given him; that defendant on this occasion showed Mr. Van Voorhis a paper which purported to be an assignment of stocks of $5,000 or $6,000 and stated that there was a verbal understanding between him and Mrs. Newcomb that she would give him the dividends of these stocks as long as she lived, but that Thomas Brown had made a strong demand on him for these stocks and he had given them to Brown.

Mr. Keyes, vice-president of the Fidelity Trust Companv, the executor of the will, testified that on October 18, 1913, he had a talk with the defendant in which Keyes asked for Mrs. Newcomb’s books of account and the defendant stated she had none; that Keyes told him he knew that was not so because he had opened one book for her and showed her how to keep track of the accounts. At that time it will be remembered the ex

The proceedings for the discovery of assets of the estate of Mrs. Newcomb, under section 2707 of the Code of Civil Procedure (1913), were begun October 23, 1913, and a subpoena in those proceedings was served upon the defendant that day. The hearing began about October 30 and ended about November 28, 1913.

Certain self-serving declarations of the defendant appeared in the record, presenting his claim to the property in question. Edward P. Vollertson, assistant secretary of the executor, testified that on November 25, 1913, in a conversation with the defendant, the defendant said that on the 23d day of January, 1913, Mrs. Newcomb was very sick and did not expect to get well, and that Sister Ellen was in the house with her and the latter telephoned defendant at the E. P. Reed Shoe. Factory and that he went to the house and got a doctor for Mrs. New-comb. Vollertson further testified that defendant stated that Mrs. Newcomb told him that she wanted him to have the Spencer Trask securities and gave him the key to her safe deposit box at the Rochester Trust and Safe deposit Company and asked him to get some deeds which were there and have Mr. McLean draw some deeds convejdng the western property from Mrs. New-

Mr. Keyes, called as a witness on the part of the People, testified on cross-examination that the defendant told him that Mrs. Newcomb had transferred and delivered to him some time before her death a large number of securities. For some reason Mr. Keyes was not permitted to give the whole talk. He testified that the talk took place November 25, 1913.

Myron W. Greene, of whom we have already made mention, called as a witness on behalf of the People, testified on cross-examination that on May 30, 1913, when he took the acknowledgments to the deeds, Mrs. Newcomb said to him that she wished to' transfer to the defendant “ certain valuable securities among which she handed me some, I had some deeds; now I don’t remember who handed me the deeds but I had them in my possession, but I handed them to her I guess, and she

The defendant by the cross-examination of Mr. McLean drew from him certain of the testimony given by the defendant in the discovery proceedings and, among other things, that the defendant testified that he had in his safe at his office on the 1st day of April, 1913, the bonds described in the indictment and that they had been in his office from the day of their purchase, to wit, January 22, 1912, down to the time of Mrs. New-comb’s death, and that the defendant testified that Mrs. New-comb had given him quite an amount of securities prior to her death. By this means the defendant not only secured for himself the benefit of self-serving declarations, but such declarations under his own oath.

William L. Parish, called as a witness by the People, testified that he had known the defendant for about six years and had been associated with him in business at 54 Mill street in Rochester, the business being repairing and refitting shoe machinery and sewing material; that this business was conducted under the name of Regal Shoe Machinery Company; that he (Parish) worked upon a commission and began working for

The defendant called two witnesses to sustain his defense on the merits, to wit, Esther Marks and Lewis P. Warner.

Esther Marks had been called as a witness by the People and on cross-examination had testified that the defendant waS'Very kind to the old lady and she and he were very friendly. It appeared that Esther had been a member of the old lady’s household for sixteen years prior to her death. She was asked if she ever heard the old lady call the defendant “ son ” and replied in the negative. She was asked if she ever saw any manifestations of affection between the old lady and the defendant, such as embracing and caressing, and said she had not. By a direct question she was led to answer that the old lady and defendant were like mother and son together. When called as a witness by the defendant Esther testified that she had heard the old lady say that she did not know how she would live without the defendant and that was the salt of the earth, and that he used to do a lot of little things around the house to help the old lady and that sometimes they ate together in her' room.

Lewis P. Warner testified that he was a manufacturer of belting in Rochester and had known the defendant about fifteen years; that the old lady knew that the defendant was a former partner of his; that the old lady used to address the defendant as “ son; ” that in 1913 the old lady said that she had given the defendant some stock, and continued “ and of course, I didn’t want to pry in much and she kept leading and telling

Warner testified that he became a partner of the defendant in 1904 and continued in such partnership two yars, at the end of which time defendant went into the sewing machine business and bought some patents. On re-direct examination Warner remembered that he had seen the bonds described in the indictment at the office of the defendant on Mill street in June, 1913.

The People argued with much force that Warner was unworthy of belief.

Six witnesses, Parish and Warner among them, were called to testify to the defendant’s good character.

It will be remembered that the action brought by the executor of Mrs. Newcomb’s will against the defendant to recover for the conversion of the securities and property claimed by the plaintiff to have been converted by the defendant to his own use, was commenced by the service of the summons November 28, 1913. This action was at issue and noticed for trial for the September Equity Term, 1914, when the defendant, on or about September eighth, disappeared. He first went to Canada, where he remained until about October 22, 1914, and then he sailed from Montreal by the way of Halifax for England. He reached London about October 31, 1914. 'He was indicted in Rochester December 14, 1914, arnested in London about January 25, 1915, and brought back to Rochester for trial. The trial began May 24, 1915, and the jury found him guilty of the crime charged in the indictment May 27, 1915.

Several letters written by the defendant during-his absence from Rochester were put in evidence and showed clearly his persistent effort to conceal his whereabouts.

The estate.of Mrs. Newcomb, as shown by the inventory,

Thus we have a case where the jury was justified in finding the defendant guilty of the crime charged. The defendant had a fair trial and the charge of the learned trial judge was impartial and quite as favorable to the defendant as he could have reasonably expected it to be.

It is entirely true that flight creates no presumption of guilt, but it is equally true that flight with other evidence of guilt, depending upon the peculiar circumstances of a case, may be a potent circumstance in the chain of circumstances upon which guilt may be predicated. In this case the jury had a right to consider the element of flight as an important circumstance pointing to the guilt of the defendant.

Then we have the defendant’s flight when about to be called upon to face the charge that he had unlawfully taken the property of this old lady; the fact that the defendant had been her trusted agent and as much had handled and had possession from time to time of her securities; the fact that there was not the slightest evidence of the delivery of any of the securities in question from her or from the defendant as her agent to himself as an independent individual; the fact that there was no written evidence of any transfer of these securities to him and not even a list of them made when it is claimed that she gave them to him; the fact that although the claim is made that these securities were given to him about May 30, 1913, the second codicil to her will was made after that date and on August 11, 1913; the fact that Mrs. Newcomb concededly received. the coupons and interest upon these securities up to 'the time of her death; the fact that the defendant received the reasonable legacy of $3,000 by her will and claims by the gift to have received over $50,000; the fact

I shall now consider the four grounds of attack upon the judgment mentioned at the outset.

(1) There is no variance in the proof from the crime charged in the indictment. The property claimed to be the subject of the larceny was definitely described in the indictment and the proof clearly established the material allegations of the indictment.

(2) The ruling of the trial court in receiving the evidence of all the property taken by the defendant, of which that described in the indictment was a part, was right, and did not constitute an infraction of the general rule forbidding proof of crimes other than that charged in the indictment. This evidence simply involved the proof of an inseparable part of the whole transaction, and we may call it proof of “ inseparable elements

(3) That portion of the testimony of the defendant given in the discovery proceedings in the Surrogate’s Court, introduced in evidence by the district attorney, was not objected to, upon the trial, upon the ground that its reception would violate section 2443 of the Penal Law, or any other provision of law. But assuming, without deciding, that the testimony was incompetent, it did the defendant no harm. Substantially every thing that was shown by the People, by means of this testimony, was shown by letters, checks, receipts and other evidence, beyond controversy. In this connection it may well be observed that the counsel for the defendant made the first use of the discovery examination of the defendant of any consequence when he cross-examined J oseph McLean.

At this time attention is called to the fact that the record upon which this appeal is prosecuted was made up carelessly, and in many instances what appears at the head of a page to be. a “ direct examination ” is in fact “ cross-examination,” as witness these examples: In the People’s case, from folio 144 to folio 157, Mr. Vollertson’s cross-examination is headed “ direct; ” from folio 167 to folio 171 the cross-examination of George J. Keyes is headed “ direct; ” from folio 183 to folio 195 the cross-examination of Myron W. Greene is headed “ direct; ” from folio 219 to folio 225 the cross-examination of Esther Marks is headed “ direct; ” from folio 251 to folio 273 the cross-examination of J oseph McLean is headed “ direct; ” and from folio 369 to folio 375 the cross-examination of Nellie M. Smith is headed “ direct.”

(4) The defendant complains because the district attorney introduced in evidence the complaint and answer in the action brought by the executor against the defendant and others to recover for the alleged conversion of the securities in question. The district attorney stated that the pleadings were not offered

Juries, in our system of jurisprudence, are credited with a reasonable amount of intelligence and in these days we cannot assume that they lack judgment and common sense. In this case the jurors were advised that a grand jury, a body of sworn officers of the law, had' charged this defendant with the crime of which he stands convicted. The indictment was before the- court and what it charged was stated to the jury, not as evidence of the truth of the charge, but as the justification for the presentation of the defendant for trial. The jury were instructed that the indictment was no evidence of the defendant’s guilt. When these pleadings were offered in evidence they - were offered with the distinct statement by the district attorny that the complaint was not offered as any evidence of the truth of the charge. The jury knew what the charge was.

It may be said generally in the case that the testimony of the defendant in the discovery proceedings and his answer in the action were clearly more beneficial than harmful to him in any view of the case. He was not sworn upon the trial, but in both of these pieces of evidence he had the benefit of his sworn denial of the crime with the commission of which he was charged in the indictment.

I think the judgment of conviction should be affirmed.

(dissenting):

The defendant appeals from a conviction of grand larceny in the first degree. It is charged that he converted to his own use five certain bonds, while same were in his possession as agent and bailee of the Fidelity Trust Company of Rochester, N. Y.

One Harriet F. Newcomb died in September, 1913, leaving a last will and testament, of which she named the Fidelity Trust Company of Rochester as executor.

In her lifetime she had reposed in the defendant great confidence and had intrusted to him many, if not all, of her business matters. So far as is disclosed by the record, he respected that confidence so long as she lived. He did her banking, attended to her investments and generally looked after her business matters.

Such course of conduct brought into his possession many securities belonging to deceased, and upon her death many of such remained in his possession. Of these, a number were transferable by delivery only.

Following her death, the trust company made demand upon defendant for such securities as remained in his possession, together with all books of account, memoranda, etc., involved in. her estate. Later, discovery proceedings were instituted

Eventually the trust company brought action against defendant, seeking to recover the value of some $85,000 worth of these securities. In that action defendant filed an answer, but when the same came on for trial he did not contest it. Judgment was recovered against him.

Following his examination in the discovery proceedings and the filing of his answer in the civil action, defendant left Rochester, went to Canada and later to London, England. From this latter place he was extradited and brought back to answer this indictment.

Defendant strenuously asserts a claimed variance between the pleading and proof in that he is charged with conversion as bailee of the Fidelity Trust Company, while the proof is that he converted securities formerly belonging to Mrs. New-comb. His contention in this particular is not sound. Upon Mrs. Newcomb’s death, title to the securities she then owned passed under her will to the trust company as her executor, and the defendant, although formerly bailee and agent for Mrs. Newcomb, thereupon and by operation of law held the securities as agent and bailee for the trust company. (Phelps v. People, 72 N. Y. 334 , 357; People v. Bennett, 37 id. 117.)

There are, however, serious errors urged. Upon the trial the assistant district attorney offered in evidence and read to the jury excerpts from the testimony of the defendant taken in the discovery proceedings. Objection to this evidence was repeatedly made by the defendant upon the ground that it was incompetent and immaterial. The admission of this evidence over such objection and exception is now urged as error requiring reversal.

The real objection to this proof lies in section 2443 of the Penal Law which provides as follows: “ No person shall be excused from testifying, in any civil action or 1 igal proceeding,

It is true that the rule is now well settled that such a statutory provision attempting to take from a witness his constitutional privilege to decline to answer any question, the answer to which might incriminate him, is wholly ineffectual in.that particular. (Chappell v. Chappell, 116 App. Div. 576 .)

The defendant might have declined to answer in the discovery proceedings in the exercise of his constitutional privilege. But this he did not do, and hence his evidence is probably voluntary.

However, the above-quoted section of the Penal Law goes much further and distinctly provides that the evidence of the witness taken in that manner shall not be used against him in a criminal prosecution. Nor is this latter provision in any wise dependent upon the one preceding. It is not made to depend upon the claim of privilege, either by a logical reading of the entire section or by its grammatical construction. This evidence, then, was incompetent by reason of this express provision of the statute.

In answer to this suggestion the assistant district attorney calls attention to the fact that the objection did not specify the true reason for excluding the evidence, and he argues that the mere general objection does not suffice to present this question. ’ We are familiar with many instances where appellate courts have declined to recognize the validity of exceptions based upon general and indefinite objection. (Sanford v. Ellithorp, 95 N. Y. 48 ; Hoar v. Hoar, 23 Hun, 33 ; Stevens v. Brennan, 79 N. Y. 254 .)

The object of the rule requiring objections to evidence to be made specific and to point out the precise defect urged is to

In those instances where it is apparent that the objection cannot be obviated by any means within the power of the party offering the evidence it is usually sufficient to make general objection thereto. Such objection then presents the defect urged. (Quinby v. Strauss, 90 N. Y. 664 ; Tooley v. Bacon, 70 id. 34; People v. Place, 157 id. 584, 601; Asbestos Pulp Co. v. Gardner, 39 App. Div. 654 ; West v. N. Y. C. & H. R R R Co., 55 id. 464, 467; Wallace v. Vacuum Oil Co., 128 N. Y. 579 .)

It seems quite apparent that the objection to this evidence could not be obviated in view of the explicit statutory prohibition against its introduction. We conclude, therefore, .that its admission was error.

The prejudicial effect of this evidence cannot be well overestimated. The evidence read to the jury embodied charges of conversion against the defendant of many other securities, involving large amounts of money, and the case, as finally submitted, contained these further charges, substantiated to some extent by the evidence of the defendant thus improperly introduced.

From this evidence the jury might well spell out further accusations against the defendant. Such scarcely rise to the dignity of proof of other thefts or conversions, but are accusations of such.

Our courts have repeatedly condemned the injection into criminal cases of mere accusations or suggestions of the commission of other and different crimes by a defendant upon trial in a criminal case.

As was said in People v. Crapo ( 76 N. Y. 288 , 291) : “ It is not legitimate to bolster up a weak case by probabilities based

Evidence of a similar character was likewise strongly condemned in People v. Cascone ( 185 N. Y. 317 ) and People v. Sekeson ( 111 App. Div. 490 , 498).

What is said above, with reference to this class of evidence, applies with even more force to the introduction in evidence of the complaint and answer in the civil action.

These pleadings were admitted in the face of the provisions of section 523 of the Code of Civil Procedure, wherein it is provided: “ A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.”

The harmful character of this evidence is even more apparent. The multifarious charges of conversion are here again presented, and presented in the form of accusation only.

In attempted justification of the introduction of these pleadings, the assistant district attorney argues that section 523 of the Code of Civil Procedure prohibits this evidence only as to the facts alleged or admitted in the pleadings; and such seems to be the wording of that section. He ingeniously argues that such evidence was not introduced for that prohibited purpose; that it finds its place in the case as a part of the general history, going to make up proof of the guilty intent of the defendant and that,, as such, it was competent and properly admitted.

Giving full faith to the contention of the assistant district attorney, that these pleadings have probative force upon the question of intent, we would then have presented evidence competent upon that theory and yet incompetent upon another theory and expressly prohibited by statute.

Once before the jury these pleadings become evidentiary for all purposes. The jury might take them into the jury room, read them and draw from them the natural and logical con

Somewhat of a similar situation was presented in the recent case of People v. Buffom ( 214 N. Y. 53 ).

In that case the defendant was on trial for murder of her husband. It was charged that the means employed was arsenical poisoning. The effect of small and repeated doses of arsenic upon the human system was being sharply litigated.

The district attorney was there permitted to prove the death of a daughter of defendant, occurring subsequent to the indictment, together with the conditions discovered both prior to her death and as revealed by an autopsy after it. This proof was permitted by the trial court, upon the theory that it had probative force upon the contested issue of the effect of arsenical poisoning and that court attempted to limit the jury in its consideration thereof to that one proposition.

The Court of Appeals, in discussing that line of proof, distinctly held the evidence incompetent, even upon the restricted theory adopted by the trial court, and although there was the merest suggestion that the defendant was guilty of poisoning her daughter as well as her husband, and although that suggestion did not obtain the formality of a charge to that effect, yet the Court of Appeals saw fit to reverse that conviction because of the admission of that evidence.

Whatever impression this court may have as to the guilt of the defendant, we are convinced that the trial he has had was not such as is guaranteed him by the Constitution. (Const, art. 1, § 2. We cannot say that the above-mentioned errors were not prejudicial to him, or that the same did not in the minds of the jury prove the controlling factor in overcoming that reasonable doubt which they might have had as to the guilt of the defendant.

For the foregoing reasons, the judgment of conviction should be reversed and a new trial ordered.

Judgment of conviction and order affirmed.