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People v. Buddensieck

4 N.Y. Crim. 230 Court Supreme Court-General Term-first Department. English

Delivered by Daniels, J.

Contents

Majority

p. 230
Supreme Court-General Term-first Department.
June, 1886.
PEOPLE v. BUDDENSIECK.

Headnote

Manslaughter—Culpable Negligence—Challenge to Jurors—Evidence.
An indictment which, alleges the crime to have been committed at a place within the jurisdiction of the Court prior to the finding of the indictment and which plainly and concisely sets forth the act or omission intended to be charged as the crime, is sufficient and is not defective in omitting to point out the precise locality where the offer se took place,
The allegation “at and prior to” a certain date is a sufficient allegation of time in an indictment, where the act alleged was continuous.
A motion in arrest of judgment can only be fóunded on the objections to the jurisdiction of the court over the subject matter of the indictment, or that the facts stated do not constitute a crime. Code Grim. Pro., § 881.
On the trial of defendant for manslaughter committed by culpable negligence a juror is not rendered incompetent to sit by reason of his opinion that there has been negligence on the part of some one, where the juror does not entertain such a present opinion or impression as to the guilt or innocence of the prisoner, as would influence his verdict.
A juror who testifies that, notwithstanding an opinion which lie has formed, he believes he can dismiss that opinion from his mind and render an impartial verdict on the evidence alone, uninfluenced by is a competent juror, even though he state that it would require evidence to remove such opinion.
Such juror may still retain such opinion on all its force, and petent juror, provided he can swear that the opinion will yet be a com-not influence his verdict, and that he can render an impartial verdict] according to the evidence, and the court is satisfied of the truth of su jh statements.
Where a witness has, without objection and mainly at the instance and solicitation of the defendant, testified as to certain matters, and his testimony is in no way impeached or contradicted, a conviction will not be reversed because afterward there was received incomp stent evidence as to the matters stated in the examination of the witness which added nothing to the weight or effect of such testimony, e. g., uritten papers, in themselves inadmissible, but the contents of which had been stated without objection by the witness.
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Specimens of mortar obtained from a mortar-bed in front of, and mortar taken from the wall of, the building, the fall of which was alleged to have been caused by the culpable negligence of defendant in constructing them of poor materials, such specimens being taken from such buildings on the afternoon of the occurrence" were exhibited to the jury. Held, no error.
If evidence be pertinent it is not objectionable because its effect may be slight.
Mortar taken from the fallen buildings having been designated by experienced builders as bad, it is proper upon such a trial to exhibit to the jury for the purpose of comparison specimens of mortar which such witnesses testified to be good.
Mortar obtained from different parts of the walls of the fallen building twelve days after its fall was exhibited to the jury. Held, no error. There being evidence that the walls of the fallen building were in the same condition as they were when first observed by the witness producing the photographs, it was proper to show, twelve days after the fall, to the jury, photographs of such walls taken during the trial, to assist them in obtaining a correct impression of the condition of the walls at the time of the disaster.
Upon such a trial it is improper to allow evidence that complaints had been made against the defendant concerning his conduct in the erection of other buildings.
It is no objection to rebutting evidence against defendant that it has a tendency also to make out the charge contained in the indictment.
A witness cannot be interrogated as to an immaterial statement and after-wards contradicted in regard thereto by the party interrogating him. Culpable negligence is such a careless act or omission by a person as endangers the personal safety or life of another, and which by the exercise of reasonable attention and exertion could be avoided.
The jury have a right to disregard the evidence of a witness who has wilfully and corruptly sworn to a state of facts known to him to be untrue. Semble. Manslaughter by culpable negligence is made out when death of the person has been produced by the inexcusable or culpable negligence of the party charged even though there may have been a want of care on the part of deceased.
Appeal by defendant; Charles A. Buddensieck, from a judgment of Court of General Sessions of the county of Hew York, Hon. Frederick Smyth presiding, of June 23, 1885, convicting defendant of manslaughter in the second degree.
For many years before the commission of the offense charged in the indictment, the defendant had been engaged in the business of erecting in the city of Hew York buildings- and other
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tenements or flats, which were designed as habitations for the poor. He had erected several hundred of such buildings.
In November, 1884, the defendant purchased from one John .33. Smith, a plot of ground on the south side of Sixty-second street, between Tenth and Eleventh avenues, in the city of New York. The title was taken for the defendant by one Grotthold Haug, who was at that time in the employ of the defendant as a night watchman, and whom the defendant paid for signing such papers.
The consideration for the land was a purchase-money mortgage, which Haug executed to Smith, and he thereupon immediately conveyed the said premises to the defendant. The architect of the defendant, one Spitzka, thereupon applied, in the name of Haug, to the Bureau of the Eire Department in the city of New York, known as the Bureau of Inspection of . Buildings, for a permit to erect buildings upon sail premises; and in his application, among other things, stated, in compliance with the requirements of the department and off the building law relating to the city of New York, that the foundation walls of said buildings were to consist of “ good building stone ” laid in cement mortar, and that the upper walls were to be composed “of the best hard brick,” laid in mortar ccmposed of sharp sand and Rockland lime. An agreement to comply with the provisions of the building law was added to such application.
The permit was finally granted, Haug making an affidavit, as required by the bureau, to the effect that the architect was authorized by him to make the application in his behalf.
The defendant thereupon proceeded to erect on part of said premises eight buildings, each four stories in height, and designed to afford accommodations for ten families.
The defendant in person superintended the work of erecting the building.
But he performed little or none of the manual labor necessary to their construction. He purchased and furnished all the materials required, to contractors who supplied the labor, the defendant in person overlooking and directing the whole work.
The work of erecting the buildings was begun in November,
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1884, and continued during the winter of 1885 until the 13th of April
The building law relating to the city of Hew York, being section 471 of the act known as the Consolidation Act, provides that no “wall, structure, building, part or parts thereof, shall hereafter be built, altered or repaired in this city, except in conformity with the provisions of this title.” It also provides that the “ mortar used in the construction, alteration and repair of any building shall be composed of lime and cement, mixed with sand, in the proportion of three of sand to one of lime, and two of sand to one of cement, and no lime and sand mortar shall be used within twenty-four hours after being mixed. Ho inferior lime or cement shall be used, and all sand shall be dean grit sharp sand, free from loam, and all joints and all walls shall be well filled with mortar.” It further provides “that all brick used in the construction, alteration or repair of any building or part thereof,shall be good, hard, well-burned brick.”
In laying the foundation walls of the buildings, the defendant directed the use of the shelly stone which had been left upon the premises by the contactor who had excavated the cellar. Very little good blue-stone was furnished by the defendant, but under his orders the foundation walls were constructed of the stones above mentioned, some of which were hard, but part of which were- shelly. Little sharp sand was furnished by the defendant to the stone-mason or to the bricklayer; and by his orders the mortar used in the foundation walls and in the brick walls was made from the dirt or loam which had been dug out of the foundations and piled in the street
Professor Chandler, who made an analysis of eight samples of mortar taken at different places from the debris of the eight buildings, testified as the result of his analysis that “In no case was there what is known as sand. There w§is what is called loam, and practically no sand at all employed.” Mark Eidlitz, Bobert L. Darragh, and Horman Andrews, experienced builders, who respectively visited the premises and gathered specimens of the mortar, stated that then’ practical examination of it showed that there was little or no sand in the
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mortar used in the foundation or brick walls of the buildings, and that it was made from loam or dirt Alfred F. 0. D’Oench, the superintendent of the Bureau for the Inspection of Buildings, testified to the same effect; moreover, that the bricks used in the construction of the walls were not hard burnt bricks as required by law, but were partly pale salmon colored bricks of inferior quality.
That the defendant ordered his contractors to use the dirt taken from the foundations in mixing the mortar ivas testified to by two witnesses; and that he furnished all the materials to both the said contractors, and in person superintended the work, is admitted in the statement of facts agreed upon.
Upon the 13th day of April, 1885, the eight buildings suddenly collapsed, and earned down among the ruins one Louis Walters, who was at that time within them, having been employed by one of the defendant’s contractors as a carpenter. Walters was suffocated, and died from the injuries received, at Bellevue Hospital, in the City of Hew York, on tie day following.
The indictment in this case was as follows:
The grand jury of the city and county of Hew "Y ork by this indictment accuse Charles A. Buddensieck, Charles Franck, Thomas W. Dailey, whose real Christian name is to the grand jury aforesaid unknown, and ¡Robert Y. Mackey of the crime of manslaughter, committed as follows:
Heretofore and prior to the thirteenth day of April, in the year of our Lord one thousand eight hundred and eighty-five, the said Charles A. Buddensieck and Charles Franck, each late of the city and county of Hew York aforesaid, did erect and construct, and cause to be erected and constructed, find did act and assist and were concerned in the erection and construction of a certain building within the said city and county, the same being designed and intended to be used and occupied upon its completion by human beings for dwelling purposss, the said Charles A. Buddensieck at the time of the erecting and constructing of the said building, having the entire care, control and supervision of the same. And the said Buddensieck and Charles Franck so having the entire care, charge and Charles A.
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^charge, control and supervision of the constructing and erecting of the said building, it thereupon became and was their duty, at the time of such erection and construction, and until the said building should be completed, to cause the walls thereof to be properly bonded and solidly put together, and to be built to a line and be carried up plumb and straight with close joints, and to cause all joints in the said walls to be filled with mortar of good quality and to cause mortar of good quality to be used in the construction of the said walls in order that the same should be properly and solidly put together, and to cause bricks, stones, iron work, planks, timber, beams, boards and materials of good quality and sufficient strength, to be used in the construction of the said building, and to prevent from being used in such construction any bricks, stones, iron work, timbers, beams, boards or other materials which were not of good quality and of sufficient strength; and to use and exercise every care and precaution in their power to render the said building and every part thereof safe and secure as well during its construction as upon the completion of the same.
And the said Charles A. Buddensieck and Charles Franck, well knowing the premises but being wholly unmindful and neglectful of their duty in that behalf, and at the time of the erection and construction of the said building, and on divers days and times up to the said 18th day of April in the year aforesaid, at the city and county aforesaid did feloniously and willfully neglect and omit to cause the walls of said building to be properly bonded and solidly put together and to be built to a line and carried up plumb and straight, with close joints; and did then and there wilfully and feloniously neglect and omit to cause proper mortar to be used in the construction of the said walls, and did then and there wilfully and feloniously neglect and omit to cause bricks, stones, iron work, planks, timbers, beams, boards and materials of good quality and of sufficient strength, to be used in the construction of the said building; and did then and there wilfully and feloniously neglect and omit to prevent from being used in such construction divers bricks, stones, iron work, planks, timbers, beams, boards and other materials which were not of good quality nor of sufficient
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strength, and did then and there willfully and feloniously neglect and omit to use and exercise every care and precaution in their power to render the said building and every part thereof safe and secure during its construction and upon the completion thereof; and the said Charles A. Buddensieck and Charles. Franck on the days and. times aforesaid, at the city and county aforesaid, did then and there wilfully and feloniously cause, suffer and permit the walls of said building to be improperly bonded and loosely and flimsily-put together, and drd then and there wilfully and feloniously cause, suffer and peimit mortar of a grossly poor and inferior quality, and mortar chiefly composed of loam to be used in the construction of the said walls ; and did then and there wilfully and feloniously cause, suffer and permit, divers bricks, stones, planks, beams, timbers, iron work and other materials of poor quality and insufficient strength to be used in the construction of the said tuilding, in consequence of which said most culpable negligence, acts and omissions on the part of them, the said Charles A. B addensieck and Charles Franck, the said building afterwards, to wit: on the said thirteenth day of April in the year aforesaid, did fall to the ground there. And the said Charles A. Buddensieck and Charles Franck, by the falling of the said building in manner aforesaid at the city and county aforesaid with force and harm in and upon the body of one Louis Watiurs in the peace of the people of the State of New York, then and there being in said building before and at the time of the falling of the same, wilfully and feloniously did make an assauk, and him, the said Louis Walters, down upon and against the bricks, stones, planks, timbers, beams, iron work, and other component parts of the said building, did then and there, with great force and violence, wilfully and feloniously cast and throw, thereby giving unto him, the said Louis Walters, then and there in and upon the head, neck, breast, belly, back, sides, and other parts of the body of him, the said Louis Walters, divers mortal bruises and contusions, of which said mortal bruises and contusions he, the said Louis Walters, from the said thirteenth day of April in the year aforesaid until the fourteenth day of April
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in the same year aforesaid, at the city and county aforesaid, did languish, and languishing did live, on which said 14th day of April, in the year aforesaid, the said Louis Walters, at the city and county aforesaid, of the said mortal bruises and contusions died. And the said Thomas W. Dailey and Bobert Y. Mackey, each late of the city and county aforesaid, at the time of the committing of the felony and manslaughter aforesaid, in manner and form aforesaid, at the city and county aforesaid, were then and there willfully and feloniously concerned in the commission of the same, and did then and there wilfully and feloniously aid and abet in the commission of the said felony and manslaughter.
And so the grand jury aforesaid do say that the said Charles A Buddensieck, Charles Franck, Thomas W. Dailey and Bobert Y. Mackey, him, the said Louis Walters, in manner and form aforesaid, and by the means aforesaid, wilfully and feloniously did kill and slay, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.
Richard S. Newcomb, for defendant, appellant.
I. The indictment is in one count, and framed under sections 193, sub. 3, and section 195 of the Penal Code. Section 193 defines manslaughter in the second degree to be “ when the homicide occurs without any design to effect death.” * * .
The indictment contains no description of the locality or place where the defendants were engaged in erecting and constructing a certain building, the fall of which originated the charge in said indictment, except that the same was “ within the said city and county,” i. e., New York
It was shown on the trial, by the testimony of several witnesses, that the defendant was erecting other buildings in-the said city and county, at and prior to the 13th day of April, 1885.
An indictment must allege the place where the offense was committed with such directness that the judgment thereon rendered may be pleaded in bar to any second indictment for same
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offense. State v. Cotten, 4 Forster (N. H.) 143; McBride v. State, 10 Humph. 615 .
IL The allegations in the indictment that “ he feloniously and wilfully neglected ” to use and exercise every care and precaution in his power to render the said building and every part thereof safe and secure, as well during its construction as-upon the final completion of the same,” is in excess of the requirements of the Code und exceeds the character of the duty imposed upon defendant where the offense charged results in the pursuit of a lawful employment, hence the allegations upon which the indictment is based do not constitute the crime contemplated by the sections of the Penal Goda The duty imposed in such cases is the exercise of such cara as a prudent man would ordinarily take under stances; he need not exercise “ every care anc. within his power.” The indictment should not be contra forma statuti. See Pen. Code, § 718, subd. 1.
III. It is further submitted that the indictment is fatally defective in regard to the times therein alleged as to sion of the offense. It charges the offense to hat mitted “ on divers days and times ” up to the said April, 1885. This allegation comprehends a number of distinct and separate offenses. The indictment does not chirge that the-act of manslaughter was done on any one day or between and including any designated days. It merely states that the acts-constituting the offense occurred at divers times up to the said 13th day of April, 1885. Non constat but that the commise been com-13th day of the statute limiting the time for finding an indictment may apply to the-successive acts charged An indictment must alie ge the time of the offenses of a day certain, before its filing and within the period fixed by the Statute of Limitations. See State v. Ingalls, 59 N. H. 88 ; State v. Rust, 8 Blatchf. 195 .
An indictment for crime other than murder must be found-within five years after the commission, except where a less timéis prescribed by statute. See § 142, Code of Crim Pro. The-indictment must show the time to be within the limit.
It is true that section 280 of the Code of Criminal Procedure-
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provides that the precise time at which the offense was committed need not be alleged, but that it may be alleged to have been committed at any time before the finding thereof. In the case at bar no time whatever is stated; it merely says at divers times up to April 13, 1885; clearly this is insufficient It is not even possible to determine the day and year when the particular offense occurred from the whole statement Time and place must be stated with certainty, though in some cases they need not be proved on the trial as stated. See People v. Stocking, 50 Barb. 573 ; State v. Munson, 40 Conn. 475 ; 2 Green’s Crim. Rep. 493. When an averment as to time and place is uncertain the indictment is bad. Jane v. State, 3 Mo. 61 ; see also Cowley v. People, 83 N. Y. 464 .
IV. The indictment charges more than one crime in violation of section 278 of the Code of Criminal Procedure.
Each of the acts of negligence therein specified may have been the means of the crime itself. It should therefore have been charged in separate counts. Code Crim. Pro. § 279; Rosekrans v. People, 5 T. & C. 467; Harris v. People, 6 Id. 206; State v. Leavitt, 1 East. Rep. 708 ; State v. Messenger, 58 N. H. 348 ; State v. Sherburne, Id. 159; State v. Naramore, Id. 273; State v. Adams, 51 Id. 568. In criminal pleadings there can be no joinder of separate and distinct offenses in one and the same count. State v. Weil, 89 Ind. 286 .
V. The indictment does not charge any association with or presence of the two defendants Dailey and Mackey and the other defendants therein, at any time and in any connection with the commission of the offense charged. Their joint connection is not in any way indicated.
An indictment which upon its face charges several defendants with several offenses committed by them independently of each other (some of which were committed by some of the defendants at one time, and some by others of the defendants at a different time), is fatally defective, Elliot v. State ( 26 Ala. 78 ) unless the word “ severally ” is used in the indictment, or in cases of indictment for riot or conspiracy. Neither of the above exceptions apply to the indictment in this case. Hence, the indictment does not set forth facts sufficient to constitute a
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crime. The court therefore, erred in denying the motion for arrest of judgment.
VI The exception to the ruling of the court on the defendant’s challenge to the juror Bloom is well taken.
This juror testified that Tiis mind was made up, that the disaster was the result of culpable negligence on the part of some one, and that he would require evidence to the contrary to remove this opinion. It was a part of the defense that the building fell through accident and not through culpable negligence, hence this juror took his seat in the box with a fixed opinion as to which he would require defendant to give emdence to remove. It is no answer to say that this was not an opinion as to the guilt of defendant
The defendant admitted he was engaged in constructing certain buildings which fell, but claimed that they did. not fall through culpable negligence, and that they fell through unforeseen accident.
Hence, the defendant would have been obliged not only to prove his own innocence, but also that the building did not fall owing to any culpable negligence.
The rule which entitles a defendant to an impartial juror makes it imperative on the part of the prosecution to prove the fact of the commission of the act charged and that i;he person indicted was guilty of that act. This much of the case for the prosecution was already accepted by this juror as a fait proved, which he would require evidence to contradict.
Hence, there was a fixed opinion in the mind of this juror which prevented an impartial decision. This brings the case within the rule laid down in People v. Greenfield, ( 74 N. Y. 277 ), which holds that one who has formed an opinion from the reading or report of the testimony against the pisoner on a former trial, however strong his belief and purpose to decide on the evidence and give unbiased verdict, cannot be readily received. Stokes v. People, 53 N. Y. 164 .
The cases of Cox v. People ( 80 N. Y. 500 ), and Balbo v. People are not adverse to this contention. The court holds in the Balbo case ( 80 N. Y. 484 ), that the declaration of the juror that he can render an impartial verdict, notwithstanding his
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previously formed impression, is to be considered by the court in determining his competency, but that it is not controlling. (See page 495 of the opinion of Andrews, J., in Balbo v. The People, supra.)
Nor is the case of the People ex rel., Phelps v. Oyer & Terminer ( 83 N. Y. 436 ), in any way adverse to this view. The distinction is there made between an opinion which is hypothetical or contingent and based on mere rumor and that which is founded upon more firm foundation. In that case the juror had formed an ordinary opinion, based entirely upon the perusal of a newspaper report and upon the supposed truth thereof. There was nothing so fixed as would require evidence to remove as in the case at bar.
It is true that an abstract opinion as to a question incidentally involved does not disqualify unless found to be such as to be likely to ink .ence the verdict. See Dew v. McDivitt, 31 Ohio St. 139 , 142; Hughes v. Cairo, 92 I'll. 339; Davis v. Walker, 60 Id. 452 ; Hagadorn v. Conn. Mutual Life Ins. Co., 22 Hun, 249 .
On a question of actual bias even slight evidence is admissible. People v. Bodine, 1 Denio, 281 , 307.
The object of the inquiry is the state of mind of the proposed juror, and that state must be such, in order to make bim competent, as will lead to the inference that he will act with entire impartiality. May v. Elam, 27 Iowa, 865 (Dillon, J.)
The leading and most recent case is People v. Casey, 96 N. Y. 115 ; 2 N. Y. Crim. 194 .
The juror Bloom said he believed his opinion would not influence him. This is not a declaration sufficient to permit bim to serve as a juror. In the above cited case the juror used the language “I suppose I would, if selected, determine this case upon the evidence,” and it was held error to overrule the challenge. Sée, also, People v. Tyrrell ( 3 N. Y. Crim. Rep. 142 , 493), where a juror having testified that he had a strong impression as to the guilt or innocence of the prisoner, and that evidence would have to remove such impression before he could give a candid opinion, and that he had no special doubt that he
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could give an impartial verdict on the evidence it was held error to overrule the challenge. See, also, Rogers v. Rogers, 14 Wend. 132 ; Jackson v. Commonwealth, 23 Gratt. (Va.) 919 ; Freeman v. People, 4 Den. 9 ; Lowenherg v. People, 5 Park Cr. 419 ; Sanchez v. People, 22 N. Y. 147 ; Scranton v. Stewart, 52 Ind. 68 ; Lycoming Fire Ins. Co. v. Ward, 90 I'll. 545; Smith v. Earnes, 3 Scam. 76 ; Union Gold Mining Co. v. Rocky Mountain Nat. Bank, 2 Col. 565 , 567; Conway v. Clinton, 1 Utah, 215 ; Friery v. People, 2 Keyes, 424.
The decision of the triers on challenges for favor was final, but now the challenges are tried by the court and the decision is subject to review.
Hence the cases above cited, where triers acted, no longer apply to the existing laws on this subject
It is a ground of challenge to favor in an action for libel on the manager of an opera, and involving an examination of the conduct of the manager, that a juror declares himself opposed to theatrical representations or performances. See Maretzek v. Cauldwell, 5 Rob. 660 ; S. C., 2 Abb. Pr. (N. S.) 407. A juror challenged for favor should.be rejected unless the triers find that he stands impartial and indifferent. See Smith v. Floyd, 18 Barb. 522 ; Maretzek v. Cauldwell, supra. If there is a doubt concerning his indifference he should be rejected. Smith v. Floyd, supra; Freeman v. The People, 4 Den. 3p.
VIL The court erred in overruling the challenge to the juror, David F. Meyer. This juror stated that he has made up his mind that the buildings fell through some one’s culpable negligence. This brings the objection within the ruling of the decisions above cited.
VIII. The court erred in overruling the challenge to juror, Weil, who had an opinion as to the defendant’s guilt which he would require evidence to remove, but said hi could, he believed, render an impartial verdict. See Olive v. State, 11 Neb. 1 , and People v. Casey, supra.
IX. The witness D’Oench was permitted to exhibit to the jury two specimens of mortar taken from a mortar bed in front of the fallen building, and two pieces of mortar taken by him from the wall of the buildings on the afternoon after they had
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fallen. These specimens were subsequently received in evidence.
The court erred in permitting these specimens to be exhibited to the jury and received in evidence.
The circumstances here did not bring the matter within the ruling in the case of King v. N. Y. Central, etc., R. R. Co., 72 N. Y. 607 , where an iron hook broken from an alleged flaw was exhibited to the jury and received in evidence. But in that case some stress was laid on the fact that the question was one of common knowledge, that all men knew what a flaw in a piece of iron looked like, and that this justified its reception in evidence and its exhibition to the jury. The same reasoning is adopted in the case of the People v. Gonzalez, 35 N. Y. 49 , and Ruloff’s case, 11 Abb. (N. S.) 245.
The present case is not parallel with the facts in the above cases. It was not an exhibition to the jury of the instrument which caused the death.
This culpable negligence could not be proved by samples of brick or mortar detached and disconnected. The structure should have been judged as a whole.
Any other rule would prejudice the minds of the jury and enable the prosecution to unfairly select a possible trifling defective portion, unless the particular defects in the specimens exhibited to the jury are shown to have contributed to or caused the accident, and that those particular defects applied to the entire building.
The admission in evidence of the specimen of brick and mortar exhibited for comparison to the witness D’Oench, and of his testimony regarding it, against defendant’s objection, was error.
A recent illustration of the rule forbidding such comparisons with collateral matters is the case of People v. Muller ( 32 Hun, 209 , 213; 2 N. Y. Crim. 279 ).
So, in an action for damages, turning on the construction and effect of the terms of a railroad ticket, another ticket exhibited by the railroad company to the passenger at the time the former was purchased by him, being for the same journey, but different in form, and offered at a less price, was held not admissi
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ble. Kelsey v. Michigan Central R. R. Co., 28 Hun, 460 ; same principle, Walworth v. Barron, 54 Vt. 677 ; Odiorne v. Winkley, 2 Gallison, 51; Peach v. City of Utica, 10 Hun, 477 ; People v. Carney, 29 Id. 47; Petrie v. Howe, 4 Thomp. & Y. 85; Siegel v. Lewis, 54 N. Y. 651 ; Gouge v. Roberts, 55 Id. 619; Dolan v. Ætna Ins. Co., 22 Hun, 396 ; Blanchard, v. N. J. Steamboat Co., 59 N. Y. 292 ; Color Printing Attachment Co. v. Browne, 37 Super. Ct. 433.
In an action for injuries to the person, it is not competent to show that the application of poultices to the in ured parts aggravated the injuries by proof that, in other cases, such treatment had produced that effect.
In cases involving paternity of children, testimony as to color of eyes or of hair, or as to other physical characteristics, is not admissible for the purpose of comparison with alleged father or others.
Upon questions of the genuineness of hand-writing, comparison of disputed with genuine writings is allowed; but under very close restrictions, and only with prescribed standards.
Previous to laws of 1880, chap. 36, in this State ai~d in other jurisdictions such comparison was very strictly limit€ld to specimens of the party's handwriting which had been a~mittecI in evidence for other 1aw~ul purposes on the trial; it was never competent to introduce such specimens for the sole purpose of comparisofl. Peck v. Callaghan, 95 N. Y. 73 ; Miles v. Loomis, 75 Id. 288, 292; Van Wyck v. McIntosh, 14 Id. 439 ; Randolph. v. Loughlin, 48 Id. 456; Dubois v. Baker, 30 Id. 355, 361; Moore v. United. States, 91 U. S. 270 ; Doe v. Newton, 5 Adolph & El. 514; Doe v. Suckermore, Id. 703.
703. Additional grounds for excluding specimens of hand-writing offered for the sole purpose of comparisons are the danger of unfair selection of specimens by the party offering them in proof, and the embarrassments arising from the rhultiplica- tion of collateral issues over the writings offered for compari- son. Peck v. Callaghan, 95 N. Y. 75 ; Jackson v. Phillips, 9 Oowen, 94, 112; Miles v. Loomis, 75 N. Y. 288 , 286; Doe y. Suckermore, 5 Adolph & El. 703. All these objections to ad- mission of writings for comparison solely with full force to
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evidence here objected to, which is not only in its nature irrelevant and collateral to the issue, but is also in its character incompetent and without the slightest authentication as to its genuineness or the fairness of its selection.
X. When comparison is permitted, the genuineness of the standard admitted for that purpose must be shown beyond question. Even under the act of 1880, the writing must be “proved to the satisfaction of the court to be genuine.” Laws of 1880, chap. 36. And it must be the handwriting of the person purporting to have executed the instrument in controversy. Specimens of writing of other persons alleged to have forged the writing in question must be excluded. Peck v. Callaghan, 95 N.Y. 73 .
So, even if comparison of the samples of brick and mortar taken from the site of the fallen buildings with some standard was at all competent, which is not admitted, that standard should at least have been shown to be genuine. A specimen supposed by the witness to have been taken “ from an old building which is being repaired ” (he did not know from where it came, nor who sent it, only that a man brought it to him), fell far short of what would be requisite. For instance, the ingredients of the specimen produced for comparison should be shown as matter of fact, by positive testimony, not ■ left to be shown by the opinion of the witness, that there was sand in it, that there might be cement in it—that the main ingredients were lime and cement—that the quality was good, etc. So, too, the origin and history of the alleged standard specimen were not satisfactorily shown. For all that appears, it may probably have been expressly prepared, or at least unfairly selected, to aid the prosecution. For all that appears, its age and exposure in an old building may well have so changed its appearance as to make a comparison with fresh brick and mortar suggestive to the jury, from the differences in quality which did not exist. The case of Scattergood v. Wood ( 79 N. Y. 263 ), is clearly distinguishable from the present case. In that case the plaintiff had given evidence to the comparative merits of the article in question, and then objected to 'defendant giving similar evidence. All the cases cited by the learned district
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attorney on this point differed from the case at bar in this respect, in that in this case the jury were allowed for themselves to determine why one specimen was better than another, and each was called upon to determine for himself a question for the solution of which special knowledge, acquired by experience in the use of brick and mortar, was necessary. If the witness, D’Oench, or any witness, had explained and pointed out the difference between the two specimens—the reason why one was good and the other bad, the evidence which the good specimen exhibited of its good character, the reason why certain qualities which could be discovered in its inspection made it a better article than the other—the specimens might have been shown to the jury as illustrating the testimony of the witness; but no such course was pursued here, and the jury were allowed to determine any evidence that happened to suit their fancy from an inspection of a specimen of brick and mortar coming, perhaps, from the very buildings themselves which had fallen. The prosecution urges that the piece of brick and mortar was introduced for the purpose of showing how good mortar, well mixed, clung to good brick, as distinguished from the adherence of bad mortar to soft brick. There is no evidence in the case that mortar which was attached to this brick was well mixed, nor is there any evidence as to how well good mortar should cling to a brick so as to distinguish it by this peculiarity from very bad mortar, nor whether such mortar clings better than old mortar, nor whether mortar with cement in it clings better than mortar without cement Upon each and every of these questions the jury were compelled to act as experts and determine for themselves, without any aid whatever afforded by the evidence of those who had become skilled by experience in the qualities and attributes of brick and mortar.
XI. The building or fire department in New York city is given superintendence of all buildings in this city, with power to compel the observance of the laws above cited. As this department had reported the buildings to be safe on January 22, 1885, it being its duty to examine and report the condition of all buildings, and to notify the owner of any defect, the defendant was certainly not imprudent when he relied on this
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department to warn Mm of the defects in his building, the inspectors being constantly on hand at the premises. The admission in evidence of the “ weekly reports ” of the condition of the buildings and the testimony of the witness D’Oench in regard to them was also error. (1) These reports were not evidence, as against the defendant for any purpose. The witness after testifying that certain other reports produced by him were reports that the buildings were unsafe (founded upon complaints), that notice was given to the owner, and that the buildings were thereafter made safe, went on to testify in regard to the reports objected to by defendant, that they were weekly reports by an examiner to the witness—or the fire department —of the condition of buildings wMch had been once reported unsafe; that no notice of these reports was given to the defendant or to those engaged in the erection of the buildings, as they were not founded on complaints; that they were for mere private information, there being no complamt as to the buildings on the record; that no survey was ordered or made upon these reports. It does not appear that the defendant ever had or was chargeable with knowledge of the existence or contents of these reports, of that any action or proceedings were founded upon them, to wMch he was a party or of which he had notice. They were entirely ex parte. Even if the facts stated in them were material, the reports were incompetent as against the defendant, and not admissible as proof of those facts. (2) These reports were not admissible as evidence of the facte stated in them. They were not records required by law to be kept, and kept accordingly by a public officer in the discharge of his duty. Hor was there anytMng in their character to entitle them to be received as competent evidence. They were, plainly, mere private memoranda by the officers of the department for their own information. It is not suggested that these reports were required to refresh the memory of the witness. They were not offered or used for that purpose, nor, in fact, could they be ; since the witness had not any personal knowledge, at any time, of the facts reported, he could have no recollection to be refreshed. In no other way can those reports be held to have been properly admitted. They were simply and purely res inter
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alios acixB—the merest hearsay. The admission of report No 96, was error. The mere fact that the defendant drew out from the witness that there was a paper marked No. “ 96,” did not entitle the prosecution to read it to the jury. The paper in question was, however, first referred to by the witness himself before he was interrogated about it by defendant’s counsel. This paper was incomplete and not legal evidence of its contents, and the same had never in any way been brought to the knowledge of the defendant for aught that appears in this case at this period. Furthermore, the testimony developed by the district attorney in relation to the service of people’s exhibit No. “ 6,” i. e., “ 96,” shows that the witness did not know personally whether the same had ever been served or posted to the defendant or to any one.
XII The admission in evidence of the photographs taken by the witness Chandler, against defendant’s objection, was eiTor. The only fact which the photographs tended to show— the condition of the wall at the time of the trial—was irrelevant and immaterial. Even assuming that proof of the appearance of the walls at the time the buildings fell or immediately afterwards might be admitted, the photographs offered were taken more than two months after the fall It does not appear, and it cannot be presumed, that the ruins remained during all that time in the same condition. On the contrary, the witness Chandler himself testified that, after the fall and before April 25, some of the loose material had been removed, $nd that after April 25, and before the photographs were taken, a portion of the very wall photographed had been removed. It is difficult to see how the appearance and condition of this wall, conceded to have been in part broken down and destroyed by causes other than the defects for which it was sought to hold this defendant culpable, could be evidence against him. Even if evidence of the condition of the wall at the time of the trial had been admissible, these photographs were not the best evidence required by fundamental rules.
Photographs, when properly authenticated by testimony showing them to be correct, are, doubtless, competent evidence; not conclusive, but open, like other proofs, to rebuttal or doubt
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Cowley v. People, 83 N. Y. 464 , 478. But photographs, like copies of writings, necessarily imply the existence of better evidence—the original of the photographs—which must be resorted to as proof whenever possible. Thus photographic copies of signatures, of which the orignals are not produced, are not admissible as a basis for comparison of handwritings by an expert. Hynes v. McDermott, 82 N, Y. 41 , 48-51; and see, also, The Taylor Will Case, 10 Abb. Pr. (N. S.) 300, 317. The admission of magnified photographs of signatures, etc., rests on a different principle, analogous to the use of the magnifying glass itself, upon the originals, by a jury or a referee, as in the case of Frank v. Chemical Nat Bank (45 N. Y. Super. 452), but. even such magnified copies are only competent when submitted with the originals. Hynes v. McDermott, 82 N. Y. 41 , 50; Marcey v. Barnes, 16 Gray, 161 ; Taylor Will Case, 10 Abb. Pr.(N. S.) 500. When photographs of places or persons have been received to show their appearance or condition, it has been always because such appearance or condition as existing at some-past time was material, and could not be shown at the trial never, as in this case, where the original, of the photograph, in precisely the same condition, might be inspected by the jury at. the time the photograph was. taken. Cozzens v. Higgins, Abb. Ct. App. Dec. 451.
Photographs, at best, are but secondary evidence — mere “ hearsay of the sun; ” and when the lack of better evidence compels a resort to them, the correctness of the photographic copies offered must be shown by proof that the process of taking them was conducted' with skill and under favorable circumstances, as well as that the result has been a fair resemblance of the object. Taylor Will Case, 10 Abb. Pr. (N. S.) 300, 318; Hynes v. McDermott, 82 N. Y. 41 , 50; Cowley v. People, 83 id. 464, 478. The testimony of the witness Chandler, that the photographs in question were “ accurate pictures ” and a correct resemblance of the original, fell far short of what was requisite to authenticate them, and no other proof was given for that purpose. On the trial of an issue involving the condition, appearance or identity of a person, place or. thing at a previous time,
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a photograph at the time in question is competent upon proper evidence of its fidelity. See Ruloff’s case, 11 Abb. Pr. (N. S.) 245 ; Cozzens v. Higgins, 1 Abb. Ct. App. Dec. 451 ; Cowley v. People, 83 N. Y. 478 . In all cases, photographs have only been competent when they represented the condition of the article at the time involved in the issue. Photographs have never been allowed as competent witnesses when the article itself could be seen in the same condition as represented by the photograph.
XIH. The errors herein are not such technical errors, not affecting substantial rights, as can be disregarded under Code of Criminal Procedure, section 542. It is not possible for the court to say, in any case, that the evidence for the prosecution, illegally admitted, such as that objected to here, had no effect upon the minds of the jury, and did not contribute to a conviction. Technical errors in other respects may be shown not to have affected any substantial right; but error in the admismission of illegal evidence cannot be disregarded on that ground, since it cannot be shown that the jury disregarded the illegal evidence admitted. Boland v. People, 19 Hun, 80 ; Lambert v. People, 76 N. Y. 220 , 229; 6 Abb. N. C.. 181 , 192; Petrie v. Howe, 4 Thomp. & Y. 85.
Randolph B. Martine, district attorney (De Lancey Nicoll, assistant), for the people, respondent.

The defendant was indicted with three other persons for the crime of manslaughter committed by culpable carelessness in the erection of a block of buildings on the south side of Sixty-second street, between Tenth and Eleventh avenues, in the city of Hew York, which, while in the process of erection, fell and caused the death of Louis Walters, who was a workman employed in the buildings. The indictment has been objected to as insufficient upon various grounds, to some extent colorably supported by the authorities cited by the counsel for the defendant But in urging these objections and endeavoring to sustain them by the authorities referred to, the counsel seems to have overlooked the fact that they no longer furnish the rules for testing the sufficiency of an indictment These rules at the

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common law were exceedingly technical and artificial in many respects, so much so as to have substantially .obstructed the administration of criminal justice, and to have sacrificed that object to the observance and application of rules having but little, if anything, to do with the protection of the accused or the sensible administration of the law. They may have been very well for the time in which they were devised, but became totally unadapted to the intelligence and progress of later periods, and their abrogation became necessary in the promotion of the ends of public justice. The present law accomplished a valuable purpose without entrenching upon the rights or securities of the accused in abrogating and superseding the absurdities of many of these rules. As the law has now been enacted, what the indictment is required to contain in the description of the crime alleged to have been committed is a concise statement of it without unnecessary repetition. And a general precedent required to be followed in framing indictments, has been inserted in section 276 of the Code of Criminal Procedure. And that permits the defendant in a case of this description, to be by the grand jury, accused of the crime of manslaughter, following the accusation with a brief description of the crime, as it is given by the statute. And when that is done, and the indictment complies with the rules prescribed by section 284 of the Code of Criminal Procedure, then it is to be held to be sufficient by the court. People v. Reavy, 1 N. Y. Crim. 1 ; 38 Hun, 418 . This indictment does comply with these rules, for it alleges the crime to have been committed at a place within the jurisdiction of the court, prior to the finding of the indictment, and plainly and concisely sets forth the act, or omission intended to be charged as the crime. And it was accordingly not defective in omitting to point out the precise locality where the ofíense was designed to be alleged to have been committed. And the time was sufficiently stated, although it was continuous, for it related to and charged culpable negligence in but one thing, and that was the erection, and the progress of the erection of the building afterwards falling. And it set forth as that was required by subdivision 3 of section 193 and section 195 of the Penal Code, the facts constituí
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ing the crime of manslaughter, within these provisions as that had been directed in the form of the indictment prescribed by section 276 and by section 283 of the Code of Criminal Procedure. And that it did so in language exceeding in its significance what may have been required by the statute was productive of no possible injury to the defendant

After the close of the trial a motion was made on various grounds for the arrest of the judgment This motion by section 467 of the Code of Criminal Procedure as amended by chapter 360 of the Laws of 1882, can only be founded on defects in the indictment mentioned in section 331 of said Code, and they by that section, include only the objection to the jurisdiction of the court over the subject matter of the indictment, and the objection that the facts stated do not constitute a crime. The facts stated in this indictment did constitute a crime, and the court had jurisdiction over the subject of the indictment, and the motion in arrest accordingly was lawfully denied.

Three jurors were allowed to sit and act in the case against the objections of the defendant’s counsel made to their competency. They had formed opinions from what they had read concerning the case, and these opinions were retained at the time of the trial The opinions of two of the jurors were not upon the guilt or innocence of the defendant, but were confined to the subject alone of negligence. The juror Jacob M. Bloom was of the opinion that the building had fallen by reason of the culpable negligence of some person. And the juror David F. Meyer had the impression “ that some one was guilty of negligence.” These opinions did not implicate the defendant, or in any manner predetermine the point of his guilt They were no more than conclusions that the building had fallen on account of the carelessness of some person; it might be that of a workman, a sub-contractor, or superintendent, or any other person than the defendant himself, and therefore did not necessarily include the charge made against the defendant. And it related to an isolated fapt which would commonly be assumed from the falling of a building caused by no intervening agency likely to affect its stability. The presumption would at once arise that there bad been carelessness somewhere, without trac

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ing or attributing it to any particular person. And such an opinion or impression, partial as it was, would not disqualify the person entertaining it as a juror. Hagadorn v. Connecticut Mutual Life Ins. Co., 22 Hun, 249 ; Rowenberg v. People, 27 N. Y. 336 ; Dew v. McDivitt, 31 Ohio, 139 ; Carpenter v. People, 4 N. Y. Crim. Rep. 39 .

In the further course of the examination of the juror David F. Meyer, he testified that he had no prejudice against the defendant, that he could render a verdict upon the evidence alone he should hear from the witness stand, and that his verdict or judgment would be entirely uninfluenced by any other person or persons. And he was accordingly a qualified juror. For what the law requires to render a person entertaining an opinion a qualified juror in a criminal case, is that he shall be able to swear, and shall swear “ that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict, according to the evidence.” § 376, subd. 2, Code Crim. Pro. This juror’s evidence brought him within this legislative provision and as the court was satisfied that he did not entertain such a present opinion or impression as would influence his verdict, the exception taken to the ruling accepting him as a juror is unsupported.

The juror Jacob M. Bloom at the conclusion of his evidence, stated that if the evidence removed his opinion that this act was the result of culpable negligence, then he could decide the case on the evidence alone, and that he would first before considering that evidence, require the removal by evidence of his opinion that this act was the result of culpable negligence. But these answers were upon the supposition as the questions were propounded that the opinion he entertained was to be overcome or removed by evidence. And such must always be the answers when an opinion has been formed and still remains upon the mind. For when an opinion has once been formed, it can only be changed or removed by evidence. But the law ■does not require that change or removal for the competency of the person as a juror. It on the contrary by its language assumes the continuance of the opinion and places the competency of the person on his ability to free his mind for the time from the

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control and effect of the opinion. And that is not an uncommon mental process. If the opinion is to he opposed to the evidence it will always require evidence to counteract its effect But the competency of a person as a juror consists in his .ability to put his opinion aside and not permit it to antagonize the evidence. And when he swears that he can and will do that, the law permits his acceptence as a juror. This person did so swear. His testimony was that notwithstanding his opinion which he had formed as to the occasion of the disaster, he believed he could dismiss that opinion from his mind “ and render a verdict upon the evidence alone uninfluenced by it.’’ He further added that he could render an impartial verdict “ according to the evidence alone.” This evidence complied with what the law required, and. proved that in the last answers which were given, the juror was testifying as to what would become necessary to change or remove his opinion if that should be undertaken, and not as to his ability to consider and decide the case wholly on the evidence. The answers of this juror were very much the same as were those of the juror Toplitz in People v. Court of Oyer and Terminer, ( 83 N. Y. 436 ). For he in like manner swore that he had read of the case in the newspapers, had formed in some degree an opinion in regard to it, and it would require evidence to remove it But as he was also able to swear that he could hear and decide without being influenced by his opinion he was considered a competent juror. ' Id. 457 . In Balbo v. People ( 80 N. Y. 484 ), the juror Edward H. Betts had formed an opinion which he said would “require strong evidence to remove.” But as he was able to and did swear that he could give a verdict upon the evidence that should come from the witnesses, and was not conscious of having in his mind any impression which would prevent him from acting fairly and impartially, his competency as a juror was approved And in Phelps v. People ( 72 N. Y. 334 ), a. juror was held competent even though he stated that he hardly thought he could pass upon the evidence as free and unbiased as if he had never heard of the case. Within these authorities'as well as the language of the statute itself, Bloom, was a legal juror; for he had testified to his unqualified ability
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to hear and decide the case without being influenced by his opinion and by his final answer detracted nothing from the force of these answers, but only described what would in Ms judgment be required to change or remove his opimon if that should be required to be done in the course of the trial of the defendant, no such change has been rendered necessary. But the juror may still retain Ms opimon in all its force, provided he can swear that he believes that the opimon will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied of the truth of such statements. These provisions were complied with, and this person was lawfully received as a juror. Cox v. People, 80 N. Y. 500 , 512-13.

The juror Samuel Beil had formed an opimon from what he had read in the newspapers, and had that opimon at the time of the trial. His impression was that some one was guilty of negligence, but as he swore to Ms ability to hear the evidence and decide the case alone on that, without being influenced by his opinion, he too was rightly held to be a competent juror.

In the case of People v. Tyrrell, 3 N. Y. Crim Rep. 142 , which has been cited by the defendant’s counsel, the’juror failed to express himself as to Ms ability to form Ms conclusion solely from the evidence, without being biased by Ms opinion, as the statute has declared that to be necessary to render Mm a competent juror. In that respect he failed to do what each of these tMee jurors most positively affirmed. And the authority is entitled to no effect in the decision which is now to be made.

It was made to appear on the trial that reports were from time to time made to the bureau of inspection of buildings, by one of its examiners, of the condition of the block of buildings wMle it was in process of erection by the defendant. The earlier reports made in January, 1885, while they stated the building to be defective and unsafe were accompanied with evidence that on notice to the defendant, he had removed and supplied the defects. And so far they were read in evidence by his counsel without objection from the prosecution But there were twelve other reports made from and including the 17th day of January, not brought to the attention of the defendant, which stated the

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building to" be in another part of it defectively built and unsafe, which the defendant’s counsel did not offer in evidence. They continued until the day the building fell, the 13th of April,. 1885. And the defect and danger they referred to were in no way removed or corrected, but it continued until the block fell. The first of these reports stated that the easterly gable was out of plumb, and bulged above the second story, and was unsafe. Those subsequent to that report stated that this was an unsafe building without specifying in what respect it was unsafe. They were all offered in evidence by the prosecuting attorney and objected to by the defence as incompetent, irrelevant and ex parte papers, and that no knowledge of the matters they contained was obtained by the defendant, or any notice of them given to him. The court allowed the reports to be read, and an exception to that ruling was taken by the defendant These statements of the examiner were no more than his declarations not under oath, that the buildings were being unsafely erected. And if they had been received on proof alone that such reports had been made, the ruling could not be sustained. For as the reports contained no more than the unsworn statement of the person making them, that was not evidence either in a civil or criminal trial The “law rejects all hearsay reports of transactions whether verbal or whether given by persons not produced as witnesses. The principle of this rule is that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary tests enjoined by the law for ascertaining the correctness and completenes of his testimony, namely, that oral testimony should be delivered in the presence of the court, or a magistrate, under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motives and deportment of the witness can be examined, and his capacity and opportunities for observation and his testimony can be tested by a cross-examination.” 1 Greenleaf on Ev. § 124. This is a general rule of the law of evidence which, subject to certain necessary exceptions which do not affect this case, excludes mere unsworn statements and reports not made by or under the authority of the person to be affected by them as evidence in legal contests.
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But this judgment is not to be reversed even though the court may have erroneously received the reports themselves in evidence. For before either was received, the witness, Albert D’Oench, was interrogated concerning them, and their full import was disclosed by him in his evidence. The report which has been most strenuously objected to is the one which is dated on the 17th of January, 1885, in which it is stated that the easterly gable of the building was out of plumb, and bulged above the second story and was unsafe. The report went no farther than this in its statement of facts. Upon that the building was reported to be unsafe and dangerous. And as much as that was obtained from the same witness in the course of his cross-examination by the defendant’s counsel. He had stated previously that in his judgment the building had fallen towards the west. And he was asked by the counsel what other reason he had for this belief beyond the fact that the eastermost building had fallen against the others, and one after the other had then toppled over. And his answer was “ The other wall of the east house had been reported out of plumb.” “Q. Then from some report that came to your knowledge that the wall was out of plumb, you concluded that that building had first fallen ? A Yes; that was the only wall reported out of plumb at the time. Qi Was there any other reason except that report that the wall was out of plumb that induced you so to conclude ? A. The material and the position of the fallen brick; everything tended to the west”

And that this answer related to this particular report is further evinced by other answers afterwards obtained, when the further cross-examination was resumed of the same witness. For he was then asked: “ Q. That bulge of the easterly gable that you refer to—is it from that fact that you primarily base your judgment that the fall of these buildings commenced at the eastermost building ? A Yes, sir. Q. Did that bulge in or out? A. Outward. Q. Outward? A That I assume.”

The counsel then moved to strike out all the testimony of the witness about the easterly gable, as it appeared to be hearsay. But that was denied, and properly so too, for the reason

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that it had appeared in the first examination of the witness as to this fact by the counsel that he was speaking only from what had been reported. After the first evidence had been obtained from the witness he was further examined concerning the same fact both by the court and the counsel for the defense, as well as the prosecution. His answers to the questions then put to him still further discloses the nature of this and the other reports, if anything could have been required for this purpose beyond the answers first obtained by the defendant’s counsel. This evidence was all taken without the least intimation that there was any objection to receiving it, and it is accordingly to be assumed that it was taken with the assent of the defendant’s counsel, inasmuch as that subject had been opened and introduced by the evidence which he obtained

The other eleven reports did not particularize in what respect the building was unsafe, but simply reported it under the head of unsafe buildings. And they accordingly added nothing whatever to what was contained in the report dated the 17th and usually referred to in the evidence as the report of the 19th of January. From the evidence which was given it appeared that they were not designed to add to or extend that report, but merely followed it by way of repeating the statement that the building for same cause was still an unsafe building. In the evidence which was taken these reports were mentioned in this manner. And it was further shown that when a building has once been reported unsafe, it was a practice afterwards to continue to make reports upon it until it should be made safe, and then the reports would be discontinued. In the course of the first cross-examination of this witness he was asked to detail what were the duties of the inspectors and examiners. But the answer was excluded on the objection of the district attorney. That, however, was immediately corrected, for the witness was allowed to proceed and make a statement of such duties, and nmnncr them was stated to be the duty of reporting unsafe buildings. The question was then asked by the defendant’s counsel: “It is their duty to properly make their reports to you after examination of the buildings ? A. They must make proper reports. Q. Is it their duty to pay attention to materials

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that are used in the construction of the buildings ? A. Certainly. Q. What ? A. Report if bad materials are used. Q. Was any report made at any time by the examiners of any improper material being used or other violation of the building law in the erection of these buildings ? A They were reported unsafe. Q. When ? A I will have to refer to the papers.” The witness then looked at a report of January 19, stating that the rear wall above the third story is bulged outward and unsafe. The witness was afterwards asked: “ Q. What are those reports you have in your hands ? A Unsafe reports. Q. By the court: With reference to those buildings ? A Yes, sir.” After the reports as to the defects in the rear of the wall were read, and it appeared from them that those defects had been removed by the builder, the witness was further cross-examined by the defendant’s counsel and asked: “Q. Is there any subsequent report prior to the falling of these buildings of like character in the records of your department respecting these buildings ? A. There is that one you had received, 96, that easterly wall Q. Uinety-six is a part of the series? A Yes.” '

And that report designated as 96 is the one dated on the 17th and called the report of January 19, 1885. The court then inquired: “ Q. Is there any report between the 19th of January and 13th of April, when these buildings fell, with reference to their condition? A Yes, sir.”

Then the defendant’s counsel interposed with the question: “ Q. This is not a complete report ? A Uo, sir. Q. It is not a final report ? A. Uo, sir. Q. By the court: There are other reports between the 19th of January and the 13th of April—is that right? A Yes, sir. Q. By the defendant’s counsel: Uo. 96, so that we may be clear about it, is one of a series referring to the other buildings, and referred to in reports of January 19? A Yes. Q. Did you say you had any reports with refference to these building on Sixty-second street, between the 19th of Januuary and the 22d of January? A Yes, sir. Q. And prior to the falling? A Yes, weekly reports.”

The direct-examination was after that resumed and the witness was asked by the district attorney: “Q. Look at the papers now

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shown you, and tell me what they are ? A. They are weekly reports of Examiner Mackey of what is being done in regard to unsafes. Q. Unsafe buildings in the city of New York? A. Yes, in his district; it embraced his district.”

These reports were then offered in evidence and the defendant’s. counsel interposed and said: “ Before they are put in evidence I have a right to examine this witness upon them Q. These are weekly reports made by the examiner of the district ? A. Yes, sir. Q. To whom? A. To me; to the fire department Q. For what purpose ? A. To report the condition of the buildings; to keep a record in compact form of the condition of the unsafes. Q. That is, if a building is once reported unsafe, as this building was, on January 19, that thereafter with respect to this building there is a weekly report ? A. Yes. Q. A weekly report does not mean that the buildings are unsafe and new, but refers to reports made before; is that right? A Yes. Q. Then these are simply continuous references to the weekly reports concerning these buildings which had been reported unsafe on January 19; is that what you mean ? A. Yes. Q. Does the report contained in this paper constitute a report of new and unsafe buildings, or does it mean a report of the condition of the building that at some time previously had been reported unsafe ? A The report on that day of how the building is. Q. Which at some time previously had been unsafe? A Yes; whether it had remained so or had been changed. Q. There must be a complaint regularly made before the builder is notified? A Yes, sir. Q. In the form of 90 to 96 inclusively? A Yes. Q. This paper is for mere private information? A Yes. Q. Private information for the department? A Yes, to keep a report of all unsafes. Q. For your own private information? A Yes. Q. And the report commences immediately when a building has once been reported to be unsafe and is then reported to have, been made safe ? A Yes, sir. Q. Does it mean that those buildings having been reported are to be regarded as unsafe from the fact of that report? A Yes. Q. And therefore having once been reported to be unsafe they were continuously reported for the information of the officers of the department ? A. Yes, sir, unless made safe.

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And when made safe, the witness answered, they would not be reported. As to these reports the witness was further asked: “ Q. And they show that the requirements of the orders that were made under those other papers had not been- complied with? A. Yes. Q. That the wall had not been done? A Yes, sir.”

In questions propounded to the witness concerning the first of the controverted reports, it is mentioned as the report of -the 19th of January, although dated the 17th because that was the date on which it is stated by an indorsement upon it, that it was forwarded to the board of fire commissioners, with a recommendation that the accompanying notice should be served. The others are the general reports, including.this among the unsafe buildings. From all this evidence it is too clear for any ground of controversy, that the jury had been made fully aware of the contents of the reports of the condition of the building before they were offered in evidence by the course of the examination commenced by the defendant’s counsel, and chiefly carried on by questions which he required to be answered by the witness. And after having acquired that information as fully as it was given by the witness, whose evidence upon this subject was in no manner contradicted or reduced in force, the reading of the reports themselves to the jury, added nothing to the weight and effect of the testimony. It was simply reading formally what before had been stated in its full substance and effect, without objection on the part of the defendant and mainly at the instance and solicitation of his own counsel The reading of these reports therefore could in no respect prejudice or work any injury whatever to the case of the defendant ' And where that appears to be the fact the evidence erroneously received cannot be made the ground for a reversal of the judgment

Tn Lancaster v. Collins ( 115 U. S. 222 ), it was said in the course of the opinion and sustained by the citation of authorities that “Ho judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made.” Id. 227 .

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The Code of Criminal Procedure, by section 542, embodied tin same principle; for it has been there provided that “ the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” These exceptions which were taken to the introduction of the reports in evidence cannot be sustained for the reason already stated, that they added nothing whatever to the force, effect, or weight of the evidence previously received concerning the same facts upon the trial

Exception was also taken to the ruling of the court by which specimens of mortar obtained from a mortar bed in front of the fallen buildings, and mortar taken from the wall of the buildings, on the afternoon after they had fallen, were allowed to be exhibited to and examined by the jury. But this exception is clearly without any merit for its support. For as these were substances required to be described for the intelligent understanding of the case by the jury, they could very well be exhibited to and examined by them, for the purpose of creating entirely accurate impressions as to their condition in the minds of the jury. The effect of the evidence may have been slight. But that was no reason for its exclusion. As long as it was pertinent to the case as it clearly was, it was for the jury to consider it

A piece of brick was also shown to the jury which was stated to have mortar attached to it which was designated as good. That was likewise evidence to enable the jury to distinguish between that which had been taken from the building and which the experienced builders designated as bad, from that which it was the duty of the defendant to have used in the erection of these buildings. Mortar was also obtained from the walls of the building on the 25th day of April, twelve days after it fell, by the witness Chandler. This was put into bottles which were allowed to be exhibited to the jury. And as the specimens were selected from the walls in different localities of the building, they were, for the same reason, evidence which the jury might inspect and consider.

Photographs were also exhibited to the jury of the appearance of the wall taken while the trial was progressing. These

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photographs exhibited cracks in a portion of the wall which they included. But in that respect they were stated to be in the condition, so far as the walls remained, in which they were when the witness had first observed them, upon the 25th of April There was no impropriety in allowing the jury to inspect these photographs, as they aided and assisted them in obtaining a correct impression of the condition of the walls as they were probably left at the time of the disaster.

It was a mistake to affirm, as has been done in the points, that the court refused to allow the concession of the prosecution to be placed upon the record, that the iron work was aE right. For the case discloses the fact that this concession was received precisely and as fuEy as it was made

It would have been improper to allow evidence to be given that complaints had been made against the defendant concerning his conduct in the erection of other buildings. And the evidence given by the witness did not prove the making of such complaints. He was asked: “ Q. Did your department during your administration make any complaint against him? A I beheve they did. Q. For the use of bad mortar ? A. I don’t know.” This evidence feE far short of establishing any such complaint and it did the defendant no possible harm, and the exception, therefore, to the ruling of the court aEowing it to be given is not to be sustained.

These are the most important exceptions which were taken to the admission of evidence during the progress of the trial For those which were taken to the allowance of expression of judgment by the witnesses who were builders, concerning the building and the materials used in erecting it, were clearly admissible. They were men of experience in this occupation and were capable of speaking inteEigently as weE as effectuaEy from the knowledge acquired by their experience and skill

After the close of the defense the prosecution gave evidence which had the direct effect of controverting the truthfulness of the statements made by the defendant as a witness in his own behalf. And it would very well be considered as rebutting evidence by reason of that circumstance, even though it at the same time had a tendency also to make out the charge con

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tained in the indictment If the latter was its only effect, the court in its discretion still had the right to receive it. And the objection that it was not proper proof by way of rebuttal is without legal support

Upon the cross-examination of the witness O’Reilly he was asked whether he did not say to Glydon, that: “ Buddensieck told you to take your man in there and strengthen the wall; that you would not do it for him, and that you did not care if the house would fall, and as soon as Buddensieck’s back was turned you will take your man out ? ” The witness answered that he did not, and as the case was about to close the witness Glydon was asked: “ Did OReilly on the day when'the buildings fell, come after you when you had gone to Bainum’s circus and say to you that Buddensieck had told him to take his men in and fix up the foundation walls that morning, but that as soon as Buddensieck left he had taken his men away and that the buildings would fall that day he thought, and that he did not care,” etc., “or that in substance? ” This last inquiry it will be observed, was not precisely that made of the witness OReilly, but if it had been there was no error in excluding the answer for the reason that it did not relate to a material inquiry in the case. What may have been said between O’Reilly and Glydon on this subject could have no material effect upon any part of the inquiry included in the indictment. And the rule is well settled that a witness cannot be interrogated as to an immaterial statement, and afterwards contradicted in his statement by evidence given on the part of the person interrogating him.

The other exceptions to the evidence have all been examined, but neither of them seem to require any special consideration for the decision of the appeal. As a general rule, care was taken to receive whatever evidence was pertinent to the charge -contained in the indictment as well as that otherwise offered when it could have any effect whatever in the way of excusing the defendant from the charge made against him

The indictment appears to have been framed and the trial had under subdivision 3 of section 193, and section 195 of the Penal Code of the State. The charge against the defendant was that he had, by means of culpable negligence and miscon

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duct in the business in which he was engaged, occasioned the death of the person named in the indictment And the case was submittted to the jury in the charge of the court, elaborately discussing and explaining this charge. The subject to which the principal exception has been taken on this part of the case includes what the court said to the jury concerning the definition of the phrase “ culpable negligence.” Care wastaken to explain and illustrate the meaning of this phrase to the jury. And it was finally explained to them in a manner that certainly did no injustice to the defendant _ For it was finally held and stated that, “ Culpable negligence is the omission to do something which a reasonable and prudent man would do, or the doing of something which such a man would not do under the circumstances surrounding each particular case. Or it is the want of such care as a man of ordinary prudence would use under similar circumstances.” And that was in accordance with the definition contained in subdivision 1 of section 718 of the Penal Code, by which it has been enacted, that: “ Bach of the terms neglect, negligence, negligent and negligently, imports a want of such attention to the nature or probable consequence of the act or omission as a prudent man ordinarily bestows in acting in his own concerns.”

What the law designed to render criminal was such a careless act or omission on the part of accused as will endanger the personal safety or life of another, and which, by the exercise of reasonable attention and exertion would be avoided. As much as that is a duty which every person owes to another, and it was upon the failure to observe the requirements of this rule that his liabihiy to conviction by the jury was placed by the court It is not correct to affirm that the court relinquished the construction of the law to the jury, for that was not done. But they were required to find whether the conduct of the defendant was included within the definition which was given of culpable negligence. They were instructed: “It is for you to say on the question of negligence whether this defendant took the ordinary, usual and reasonable precautions, everything being considered, to prevent the falling of the build

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ings. And one of the questions in this case for you to determine will be whether under all the circumstances this defendant was not bound to resort to every reasonable and proper means within his power to prevent the softening of the mortar by the action of the water, snow and ice in those cellars, and whether he did so ,and whether he was not bound to exercise a larger amount of care and caution in' consequence of there not being a sewer in that street at the time he commenced the erection of those buildings. And it was his duty to exercise the necessary care and protection which a prudent man would exercise and ordinarily bestow in acting in his own concerns.”

In responding to the requests made on behalf of the defendant the jury were further directed that: “ In order to constitute the crime of manslaughter in the second degree, under subdivision 3 of section 193 of the Penal Code which is applicable to the definition of the offense charged in this indictment, the jury must find that the defendant by some act of culpable negligence 1 procured the killing of the deceased.’ ”

And that: “ The jury must not only find that the evidence establishes, before they can convict, the presence of mere ordinary negligence on the part of the defendant, but they must find it in such extreme degree as the use of the term 1 culpable negligence ’ imports in the section of the Code referred to.”

And “ If the evidence leaves the jury in doubt as to whether such a degree of negligence exists as the statute thus contemplates, they must find its presence not proven, and acquit the defendant; that is, if they entertain a fair and reasonable doubt as to the establishment of such a degree of negligence as the Code contemplates by the use of the word ‘culpable.’ ”

And “ the jury must find beyond a reasonable doubt that the defendant by his procurement or culpable act, through unlawful negligence or reckless means, occasioned the death of Lewis Walters, otherwise they must render a verdict of not guilty.”

And “ if the defendant did exercise such ordinary and usual care and caution, as men generally in the performance of their business affairs are accustomed to exercise, the jury must find

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that the killing charged in the indictment was misadventure and not crime, and the defendant must be acquitted”

They were further directed that “if they were of opinion that the defendant, though practically unskilled as a builder, provided what he believed to be proper materials for the erection of such building; that his contracts were with persons whom he regarded as competent to perform the labor required of them; that he expended his moneys and devoted his time in and about such erection with the honest purpose and intention that such buildings, when completed, should be safe and suitable for the uses for which they were intended; then and in such case the jury must find that the falling of such buildings was misadventure, the act charged not a crime, and the defendant must be acquitted.”

These directions, it is true were qualified by the statement that he was bound to use ordinary and proper care. But that was no more than the law required from the court In giving these directions with those contained in the charge previously delivered, full and complete justice was done to the rights of the defendant. He was guarded in every way that could be done against the chances of an improper conviction. And the jury were restricted in their determination of the defendant’s guilt by the legal considerations strictly applicable to the case.

It has been objected to the charge that the court directed the jury to disregard, the testimony of one or more witnesses, if they were found to have sworn wilfully or corruptly false. But such a direction was not given. What the court did direct the jury to do was that if they came to the conclusion that any witness, or more than one witness, had wilfully and corruptly sworn to a state of facts which he knew to be untrue when he swore to it, they had the right to disregard the evidence of such a witness. And that was very far short of a direction intended tz> be, or which could have been understood to be, controlling or compulsory upon the jury. It left them to the free exercise of their own judgment, and to reject or accept the evidence of the witness, as that might be found to be justifiable or prudent under the circumstances. And that is the legal rule

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required to be observed in the disposition of this point People v. Reavey, 38 Hun, 419 ; 4 N. Y. Crim. Rep. 1 .[1]

There was no evidence given upon the trial from which it could be said that Walters, the deceased, had brought about or exposed himself to the disaster by any want of care, or fault on his part. And no inquiry based upon such an assumption could have been submitted to the jury. Besides that, the defendant could not be exonerated from guilt if this man’s death was caused by his culpable negligence, even though there may have been a want of care on his own part. That rule, as it was acted upon in Palmer v. Dearing ( 93 N. Y. 7 ) is not applicable to an indictment under these provisions of the Code. But the charge will be made out according to the language employed by the Legislature in the enactment of the law, when the death of the person has been produced by the inexcusable or culpable negligence of the party charged

Great care has been devoted to the examination of the numerous exceptions and objections taken upon the trial and urged in support of the appeal That has been regarded as a duty more than commonly obligatory to avoid the possibility of any intervening influence causing injustice to the accused by means of public censure, excitement or condemnation. And it is believed that the effect of such influences have been wholly avoided, and that no injustice whatever has been done to the accused in the adoption of the conclusions which have been already stated; They seem to have been well warranted by what transpired upon the trial. The evidence fully sustained the conviction of the defendant, and the result is that nothing is found in the case upon which it can be impeached or set aside, but that the judgment from which the appeal is taken should be affirmed

Macomber, J., concurs.

Although as demonstrated by the opinion of Justice Daniels there were many exceptions taken upon the trial requiring consideration, that which related to the reception

* See People v. Petmecky, 2 N. Y. Crim. 450 ; 3 Id. 288.

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of some of the reports filed in the bureau of the department of buildings seemed to be the most formidable. But a thorough investigation of the whole of the testimony of Mr. D’Oench, upon whose examination it was taken, shows it to be unavailable. The prosecution was not predicated on reports of any kind emanating from any source, but upon the asserted and material fact that the appellant had constructed the buildings designated with improper materials, and, as a result, had caused the death of a human being. The answer to this charge, if established with sufficient certainly to call upon him to make one, would be that proper materials were in truth employed This would indeed be indispensible, as we can readily understand, even if the fall of the buildings arose from some unforeseen circumstance which could not be conjectured or provided against The prosecution proved that the law as to the quantity of sand to be used in making mortar had been violated, and violated by order of the appellant, who instructed his workmen to use for that purpose the loam which was taken from the land, and the mortar, so called, made from it practically contained no sand at all, according to the evidence of Professor Chandler, which must be regarded as having been accepted as satisfactory and true by the jury. He made, he said, an analysis of eight samples of it, taken from the debris of the buildings and at different places. It was, it may be said, a composition readily dissolved by water and washed away. Indeed, in legal contemplation it was not mortar—certainly not such as required by law. It is quite clearly established, that the buildings fell because of the use of that material, without reference to ■ any other defect They fell, too, it must be observed, before completion, and it would seem to be beyond dispute that, unless their destruction was due to some unusual occurrence arising from some extraordinary circumstance which mortar properly made would not have prevented—a fact for the defense to establish, but which was not done—it must have been the result of improper, unlawful construction. Here, however, two facts concurred—the mortar, so called, was improperly, unlawfully made and useless, and the buildings fell These facts
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stand prominent and cannot be overlooked or diminished in importance.

The prosecution, as suggested, did not resort to any reports on file in the department of buildings to establish the offense charged. It was an element of defense and one which operated, it may be, no matter what the theory of the defense was, both for and against the appellant; for him so far as it showed his compliance with the requisitions issued in regard to the buildings, although this could have been enforced under the statute and may not be regarded as voluntary, therefore — and against him, as evidence that the construction of the buildings required constant supervision and invoked several reports impugning their safety, of which the appellant was advised, and which should not have been necessary if that construction had been marked by the use of all the safeguards which a proper consideration for their safety demanded; safeguards not only provided for by statute, but established as a necessity by experience and observation, and impressive and imperative as involving protection to life. It was no answer to this charge to say: “We have complied with the requisitions of the department ; ” for the officers of the department might fail to observe some defect or omission which was inexcusable. Such was not the issue. It was whether the law had been violated and culpable negligence established by the use of improper material. The design of the law in regard to buildings is to prevent such a casualty as resulted from the appellant’s acts and he must be held to knowledge of this law in theory and in fact, for he had been concerned in erecting numerous buildings. He cannot complain, therefore, when charged with causing the death of a human being, if he be held to a strict accountability for his abandonment of plain rules intended for his own protection as well as that of the community at large. He must take the consequences of disregarding them.

The prosecution, as already said, did not rely upon reports, but upon facts wholly independent of them, and the charge was to be met, if successfully, by a similar and responsive element. When the reports were resorted to, therefore, the appellant’s de-fense was commenced. He called for them for that purpose and

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for that purpose only, and as to them, the witness interrogated was, under the circumstances characterizing their development, one examined on appellant’s behalf. He introduced this new matter, asking generally as to reports, when the judgment of the witness was invoked. He thus, to use a familiar phrase, opened the door, and could not then .walk in and out with only such reports as he chose, selecting those which were advantageous and rejecting those which might not be. He exposed his witness to a cross-examination as to this new matter, and himself to all the consequences resulting from it. The reports excepted to were, therefore, properly admitted as a part of the cross-examination, which from its development had become, in part at least, an examination in chief on behalf of the appellant.

The gravity of the offense charged cannot well be over-estimated. The construction of a buildingcás an important undertaking, as it may involve the loss of life, and should be accomplished, even though no statute prevailed on the subject, with strict regard to its absolute safety as a structure. It should not, indeed, must not, be constructed upon any other principle under any circumstances, and most especially not for gain, if such be the object in view. Human safely must not be made subservient to thrift or the hope of gain to be attained by the exercise of a spirit of perilous economy. The statute points to the dangers of faulty construction and is a constant warning to the builder by its requirements, with which he must be supposed to be familiar, especially after a long experience in the erection of buildings.

For these reasons, in addition to those fully and ably given by Justice Daniels, I concur with him in the result at which he has arrived.

Note.—“ In reference to manslaughter by negligence (the only form of a crime by omission which is at all common), the legal and popular meanings of the word are nearly identical so far as the popular meaning goes; but in order that negligence may be culpable it must be of such a nature that the jury think a person who caused death by it should be punished; in other words it must be of such a nature that the person guilty of it might and ought to have known that neglect in that particular would or probably might cause appreciable positive danger to life or health, and whether this

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was so or not must depend upon the circumstances of each particular case.” 2 Steph. Hist. Crim. Law, 123; see People v. Melius, 1 N. Y. Crim. Rep. 39 .

Stephen gives the following able statement of the law of culpable negligence in Digest of Crim. Law:

Art. 211. “Every one upon whom the law imposes any duty, or who has by contract or by any wrongful act, taken upon himself any duty tending to the preservation of life, and who neglects to perform that duty and thereby causes the death of any person, commits the same offense as if he had caused the same effect by an act done in the state of mind as to intent or otherwise which accompanied the neglect of duty. Provided, however, that no one is deemed to have committed a crime only because he has caused the death of, or bodily injury to, another by negligence which is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case. Provided, also, that no one is deemed to have committed a crime by reason of the negligence of any servant or agent employed by him. Provided, also, that it must be shown that death not only follows, but is also caused by the neglect of duty.

Art. 212. “It is not a crime to cause death or bodily injury, even intentionally, by any omission other than those referred to in the last article.” ■

Cases cited