People v. Bissert

This appeal is from a j'udgment convicting the defendant of the crime of bribery. The indictment upon which the conviction was obtained charged, in Substance, that on the 15th

“The general object and design of the Code of Criminal Procedure was to collect the various statutes relating to the subject, and to furnish a uniform, harmonious, and comprehensive system of criminal practice, to apply to and govern all criminal proceedings thereafter instituted in any of the courts of .the state.”

See, also, People v. Jaehne, 103 N. Y. 182 , 8 N. E. 374 . And independent of the construction put upon the Code by the court of' appeals, the slightest consideration of the various sections of it is sufficient to indicate that it was intended by the legislature that this Code was to take the place of, and be substituted for, all of the statutes of the state bearing upon the subject, to which end provisions were made for every necessary step to be taken in every criminal case, commencing with the formation of a grand jury, leading up to a trial, conviction, sentence, or discharge of a defendant. The powers and duties of the grand jury are defined (sections 223-250); the-

If the demurrer be allowed, then the defendant must be discharged, and the judgment allowing the demurrer is a bar to another prosecution for the same offense, unless the court orders that the case be resubmitted to the same or another grand jury. It is, the order of the court which gives the grand jury jurisdiction to make a second investigation, and render a second indictment in pursuance of it. But the court cannot make this order until after it has disposed of the demurrer. A demurrer is a trial upon issues of law, and it is only upon the termination of that trial that an order can be made. Therefore, when the defendant demurred in the case at bar, there was no power in the grand jury, in the absence of an order by the court, to again investigate the same charge, or find a second indictment. It had no more power in this respect than it would have had after the case had been submitted to the

“If there be at any time pending against the same defendant, two/Indictments for the same offence; or two indictments for the same matter, although charged as different offences, the indictment first found, shall be deemed to be superseded by such second indictment, and shall be quashed.”

This section formed a part of the Revised Statutes which were in force at, and had been in force for a long time prior to, the adoption of the Code of Criminal Procedure; and under the well-recognized rule that where a later statute, not purporting to amend a former one, covers the whole subject, and is plainly intended to furnish the only law thereon, it would be held to have been repealed by necessary implication (Heclcmann v. Pinkney, 81 N. Y. 215 ), were it not for the existence of chapter 593 of the Laws of 1888. This statute expressly repeals all of the sections of the statutes relating to criminal practice prior to the adoption of the Criminal Code, except section 42; and this exception indicates an intention on the part of the legislature to re-enact and keep in force that section, for which reason the same must be construed in connection with the provisions of the Code bearing upon the same subject, and, if possible, force be given to both. This I think can be done. The Code provides the manner in which an indictment-shall be found, and the practice to be pursued after a defendant has been taken into custody thereunder; but no provision seems to have been made as to what may be done by the people for the purpose of perfecting an indictment intermediate the finding of the same and the taking of the defendant into custody. The district attorney, in case he finds any defects in the indictment, may, under section 42 of-the Revised Statutes, resubmit the case to the same or another grand jury, and it may correct any technical defects which may be found in the original indictment, and upon the second indictment the defendant may be arraigned and tried. Giving section 42 this construction, it does not destroy, nor does it in any way interfere with, the provisions of the Code of Criminal Procedure, Tut, on the contrary, gives full effect to them. It not only does this, but it enables a prosecuting officer to correct technical defects which he may discover in an indictment before the defendant has been required to plead to it. But after a defendant has been- arraigned under an indictment, and has challenged the right of the people to deprive him of his liberty under it, this section of the statute cannot be resorted to for the.purpose of finding a second indictment, because to do so would destroy and render nugatory all' of the provisions of the Code of Criminal Procedure relating to or bearing upon the subject. In the case before us the defendant

I am also of the opinion that errors were committed upon the trial, both in the reception of evidence, as well as in the unauthorized statements made by the learned district attorney in the opening and summing up to the jury, which, independent of the question already discussed, necessitate a reversal of the judgment of conviction. As to the first, the charge which the people made against the defendant was that he, while a police officer, accepted from one Lena Schmidt $550, under an agreement that he would permit her to violate the law; and, to establish the truth of this charge, Lena Schmidt was sworn. She testified, in substance, that at the time specified she gave to the defendant $550, with the understanding on his part that he would permit her, without molestation or interference, to conduct, at a place specified, a house of prostitution. If she paid to the defendant this sum for the purpose specified, she was equally guilty with the defendant, because she aided and abetted in the commission of the crime. She was an accomplice, and therefore, by express provisions of the statute (section 399 of the Code of Criminal Procedure), the defendant could not be convicted upon her testimony alone. It required corroboration. Appreciating this, the people produced a witness by the name of Nettie Drexler, who testified that she was an inmate of the house kept by Lena Schmidt, and upon a certain occasion this house was raided by -the police; that she there saw the defendant, and heard a conversation which took place between him and Lena Schmidt. She was then asked:

“Q. What did you or Mrs. Schmidt say to Bissert, and what did you hear Bissert say to Mrs. Schmidt, at that time? A. She asked him— She says: ‘Why did you do this? You took money, and now you are chasing out the girls.’ Q. What did you hear Bissert say, if anything? A. I did not hear what answer he gave.”

The defendant moved to strike out this testimony upon.the ground that the conversation had was only admissible upon the theory that the defendant acquiesced in the statement made by Lena Schmidt as to the giving of the bribe, and that such acquiescence could not be implied, inasmuch as it did not appear what answer the defendant made. The motion was denied, and an exception taken. This motion should have been granted. The evidence was manifestly improper. The only ground upon which it can be claimed that it

“When the claimed acquiescence is in the conduct or in the language of others, it must plainly appear that such conduct or language was fully known and fully understood by the party, before any inference can be drawn from his passiveness or silence. Moreover, the circumstances must not only be such as to afford him an opportunity to act or speak, but also such as would properly or naturally call for some action or reply from men similarly situated. Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to ascertain what reply the party to be affected makes to them. If he is silent when he ought to have denied, the presumption of acquiescence arises, but it is clearly otherwise when his silence is of a character which does not justify such an inference.”

And in the latter case it was held:

“There are circumstances under which the declarations of persons, made in the presence of the accused, are competent; but they are regarded as dangerous, and should always be received with caution, and should not be admitted unless the evidence clearly brings them within the rule. Declarations or statements made in the presence of a party are not received as evidence in themselves, but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the party affected hears and fully comprehends the effect of the words spoken, and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent.”

If the rule announced in these cases is the correct one, it does not require argument to demonstrate that the evidence here under consideration was improper, and for that reason should have been stricken out.

Nor do I think, under the circumstances, was the defendant bound to reply, even conceding that the statement was made as testified to, and the defendant heard it and made no reply thereto. He was a public officer, and, at the time the accusation was made, was in the discharge of a duty imposed upon him by law. Was he bound to reply to every accusation then made against him? And if he did not, could that fact be used to establish that he himself was guilty of a crime? I do not think so. The circumstances were such that he was not bound to reply to charges made against him by persons confessedly violating the law.

As to the second: In opening the case to the jury, the learned district attorney said:

“Now, the prosecution claims, at the outset of this case, that there is not a newsboy in this town, that there is not a business man in this town, that there is not a man of ordinary common sense that walks the streets of this town, but who knows that no house of prostitution can run in this town without the consent and approval of the police, and that that man does not live in New York City, that has common sense, that does not know the plain and palpable facts.”

The counsel for the defendant interrupted the district attorney, when the foregoing statement was made, and thereupon the following colloquy took place between him and the court:

“Mr. Levy: I beg your honor’s pardon, and I regret to interrupt my friend; but I desire to object to the last statement of the district attorney as improper, and not within the purview of this indictment, and as not within the limits of the indictment, and as not a proper part of an opening of a district attorney. The Court: Go on, Mr. district attorney. Mr. Levy: And I ask your honor to instruct the jury at this time to disregard the statement of the district attorney that there is not any man in this community but who knows that no house of prostitution can run in this community without the knowledge and approval of the police. The Court: I think the statement is •outside of the issue raised by the indictment. Mr. Levy: Will your honor instruct the jury as I request? The Court: I instruct the jury that the state

ment objected to is not within the issue raised by this indictment, and you must eliminate it from your consideration, gentlemen. Mr. Levy: Will your honor instruct them to disregard it? The Court: I shall not instruct them further. Mr. Levy: I take an exception.”

Thereupon the district attorney continued:

“No wonder my friend Mr. Levy would rise up and object when I say that it is within the common knowledge of you gentlemen of the jury, and will be proved in this case, that, with the number of men in the precinct, with the machinery that is within the power of the police to exercise, and with the knowledge of men walking up and down the streets, and appointed to a particular duty, that it is not within the power of men not to know it, and that this woman is corroborated when she says that she ran that house there with the consent of the police, and that the prosecution claims that it is-corroboration, within the ordinary knowledge of mankind, which you do not lay aside when you take your seats in the jury box, that that house could not run in that precinct without the knowledge of the police of that precinct Mr. Levy: I object and take an exception to that statement. Mr. Osborne: I claim that I am clearly within the law of evidence on that point. * * * In the present instance we cannot attack the tree, but we have here one of its branches, and we must begin there; and we call on this jury, in the name of their desire to promote the welfare of this community, to bring to bear upon this case their common, ordinary intelligence, and to recollect, as I said before, that, to a large extent, the morals of the community rest upon the morals of a jury, and that your verdict will either tend to continue this system, or that it will tend to end it. Mr. Levy: To the last remark of the district attorney we desire to object, if your honor please, and except,—that their verdict will tend to continue an alliance between the police and houses of. prostitution,—as being improper, and not being within the purpose of an opening address, and as an improper statement. The Court: Call your witness, Mr. district attorney. Mr. Levy: We except.”

Thus we find at the very beginning of the trial the people claiming that the defendant could be convicted, not upon evidence alone, but upon the knowledge possessed by the jury, independent of evidence,, and which knowledge they did not lay aside when they were accepted as jurors. When the court’s attention was called to such statements, instead of promptly checking them, and instructing the jury to entirely disregard the same, he impliedly approved of them, by directing the district attorney to call a witness. The prejudicial effect of these statements becomes apparent when the same are considered in connection with the statement of the district attorney in his summing up at the close of the trial, when he again repeated them. He said:

“And I repeat that there is not a single boy in the precinct, that there is not a newsboy in the precinct, that does not know the fact to be the truth, that no house of prostitution, that no gambling house, no unlawful establishment of any kind, can exist in a precinct without the knowledge of the captain, and without the knowledge of the special officer. And nobody knows that better than the defendant himself. !■ ask the jury if they are going to stultify themselves, if they are going to unite themselves with the police alliance with houses of prostitution, and if they are going to make themselves particeps criminis in the horrible crime of taking blood money. I would not take it. I would not take it if I had to resign forever my position as a district attorney, and if I had to sink into such insignificance that you could not find me with a microscope; and I hope there is not a man on this jury who would take it, and I do not believe there is. * * * I want you to ask yourselves whether you will ever convict a police officer of taking a bribe, if you do not do it in this case. I tell you, gentlemen of the jury, if you do not, you might as well tell the police to ‘go ahead and blackmail

all you want,’ because the district attorney cannot get a jury to exercise their reason. You might as well shout and proclaim all over the United States that every public officer, district attorney, or anybody else, can take a bribe, if he wants to, if you will not convict in this case. * * * We are now dealing with a ease which may mark a period in the history of our great community. We are confronted with a wall. We stand facing that wall as a Hindoo Brahman sometimes does,—facing it, with no possibility of getting over it or through it; and he stands there, year in and year out, facing that wall. That is the way this community has stood with regard to this police situation. * * * There have been a good many fights for liberty in the world. Peace has her victories, as well as war, and the fight for freedom has not ended yet; and I say that you, gentlemen, can help along, a little bit, the cause of freedom. *> * :s Consequently, if you say, on this evidence, corroborated as this woman is, that you will not convict, then give a license to every police officer and to every public officer to take money as a bribe whenever he pleases. * * * Now, gentlemen, what is the use of teaching the children in this community that honesty is the best policy? What is the use of trying to give them any theoretical lessons in morality, when they see the houses of prostitution open in this precinct, and when they know that the officers of the law that are put there to close them up are really using them for their own private profit?”

The defendant’s counsel, during the course of the summing up of the district attorney, undertook to prevent such statements, and was promptly checked; the court saying:

“Now, you should not interrupt the district attorney. You were not interrupted, Mr. Vorhaus, and Mr. Levy was not interrupted. Mr. Vorhaus: Well, we will keep our objections until the end, your honor.”

The district attorney was thereafter permitted to make such statements as he saw fit, without interruption by counsel or the court; and, when he had finished his remarks, defendant’s counsel sought to except to some of them, and the following occurred:

t “The Court: What is this? A summing up by the defense? Mr. Vorhaus: No, sir; I am excepting to the remarks of the district attorney. I am quoting them. The Court: Do you think that this court has nothing to do except to listen to exceptions by counsel on either side to the summing up? Mr. Vorhaus: I understood your honor to say we should defer our exceptions until the district attorney had closed. The Court: Oh, such practice is trivial, Mr. Vorhaus. Mr. Vorhaus: Well, what other remedy have we against the improper remarks of the district attorney? The Court: I am not here to prescribe remedies. I am here to preside over this trial, and the proposition that counsel, who may have had a couple of hours each to talk, would have the right to jot down everything that each other may say, and raise objections to it, would simply mean a continuation of objections and exceptions, and a never-ending argument.”

The defendant’s counsel thereupon called the attention of the court to the fact that the court of appeals had recently reversed judgments of conviction by reason of improper remarks on the part of district attorneys, and the court then said, “Very well, then, go on,” and exceptions were then taken.

The statement made by the district attorney in his opening, to the effect that it was a matter of common knowledge that houses of prostitution could not be run in the city of New York without the consent and approval of the police, and that the jurors, when they were accepted, did not lay aside that common knowledge, was unauthorized, and ought not to have been made; and the jury should have been immediately told by the trial court to disregard the state

“The average man cannot read the eloquent but inflammatory language of the district attorney without being impressed by it, and it is safe to presume that the effect would be heightened by hearing those words spoken with animation and enthusiasm, under the existing circumstances surrounding an important criminal trial. The jury might be told by the court to forget them, but could they forget them? They might be told to disregard them, but how can we be certain that they did disregard them? Moreover, some of the most objectionable language was not alluded to by the court in its charge, and instructions to the jury do not always neutralize, either as matter of law or fact, the effect of improper remarks in their presence. People v. Corey, 157 N. Y. 332 , 346, 51 N. E. 1024 ; Brooks v. Bailway Co., 156 N. Y. 244 , 252, 50 N. E. 945 ; People v. Hill, 37 App. Div. 327 , 56 N. Y. Supp. 282 ; Swan v. Keough, 35 App. Div. 80 , 54 N. Y. Supp. 474 . Prom our observation of jurymen, we think the language under consideration would be apt to turn their minds against the defendant, divert their attention from the evidence, and prevent the exercise of sound and dispassionate judgment upon the merits.”

It seems unnecessary to add anything further, because, if the language used by the district attorney in this case is compared with that used in the case in which the above remark was made, as well as in the Mull Case, 167 N. Y. 247 , 60 N. E. 629 , it will be found that it is much more subject to criticism than that used in either of those cases. See, also, People v. Smith, 162 N. Y. 520 , 56 N. E. 1001 ; People v. Milks, 55 App. Div. 372 , 66 N. Y. Supp. 889 ; People v. Smith, 55 App. Div. 368 , 66 N. Y. Supp. 886 ; People v. Ray, 36 App. Div. 389 , 55 N. Y. Supp. 410 .

The defendant was entitled to a legal trial, conducted in a proper way, and convicted, if at all, upon evidence such as' the law approves. This he did not have. The trial was illegal, for the reason that the grand jury acted without jurisdiction in finding the indictment under which the trial was had, improper evidence was received, and the method pursued by the prosecuting officer was such as the law does not sanction. Nor is it any answer to this suggestion to say that the defendant is guilty of the crime of which he has been convicted. Such suggestion only begs the questions. The guilt or innocence of the defendant must be determined by a jury, and not by the court; and, if the court usurps the province of the jury in this respect, it takes from the defendant what the constitution of the state has guarantied to him, viz., trial by jury. This same suggestion was made in People v. Mull, supra, and the court of appeals effectually disposed of it by saying:

“If it be said that in the case before us there is' no reasonable doubt of the defendant’s guilt, it- should be remembered that it is not for the courts, but for the jury, to say this by their free and impartial verdict; and we

cannot know that they have said It, when we do know that they were told by the district attorney * * * that their own good repute was in jeopardy, and could only be saved by convicting the defendant.”

I am of the opinion, therefore, for the reasons given, that justice requires that the defendant should have a new trial.

VAN BRUNT, P. J., concurs.

I am of the opinion that, for the reasons assigned in the opinion of Mr. Justice PATTERSON, the second indictment was regularly found and is valid; but I concur in that part of the opinion of Mr. Justice McEAUGHEIN which holds that the reception of the testimony of Nettie Drexler concerning what was said to the defendant by Mrs. Schmidt, to which she did not hear the defendant’s reply, was reversible error, and also in that part of his opinion which holds that the conduct of the assistant district attorney was also reversible error. I think that the test by which it should be determined whether a trial, either civil or criminal, is to be permitted to stand, or is to be rendered nugatory for something outside of the evidence occurring in the court room, should be whether the presiding justice properly conducted the trial, or was guilty of any error in regulating the conduct of the jurors, attorneys, counsel, or spectators. If the judge performs his full duty, it ought not to be in the power of any one to render the trial fruitless upon such grounds. If an attorney or counsel, either in his opening or closing remarks, or during the trial, attempts to say or says something improper, I doubt whether there is any case where it would not be within the power of the presiding justice, by administering a proper rebuke and sufficiently admonishing the jurors, to remedy the error, and prevent any injurious consequences; and, in case of his failure to so act, the criticism of the appellate court in reversing should fall upon him as well as upon the attorney or counsel. But the court of appeals has apparently decided that in criminal cases, at least, reversible errors may occur, owing to the impassioned remarks of a district attorney, even though the trial justice does his full duty. Consequently district attorneys and their assistants should conform their conduct to the limitations prescribed by the court of appeals, and conformity thereto should be compelled by the justice presiding. In the case at bar I think the bounds of propriety were overstepped by the district attorney far more than in cases where the court of appeals has seen fit to reverse on that ground. I therefore vote to sustain the second indictment, and also for a new trial, for the reasons stated.

I am unable to concur in the opinion of Mi-Justice McEAUGHEIN written in this case, or in the conclusion that the judgment of the court of general sessions of the peace should be reversed. Prominently appearing in the record is the fact that the rights of the defendant, as they are related to the merits of the case, were so carefully protected by the recorder who presided at the trial that not a single exception was taken to his charge. The defendant’s

In the first place, the authority of the district attorney to put the defendant on trial at all is challenged. The facts connected with that challenge are very simple. The indictment upon which the defendant was tried and convicted was found to be a true bill by the grand jury on the 26th day of June, 1901. It was found under sections 72 and 48 of the Penal Code. The grand jury previously and at the same June term, to wit, on the 17th of June, 1901, had found another indictment against the same defendant under section 72 of the Penal Code. On the same day, according to the indorsement on the first indictment, the defendant pleaded “Not guilty,” but on the 20th of June, that plea was withdrawn, and a demurrer to the indictment was filed. Argument was had thereupon on the 21st of June, 1901. On the 26th of June, 1901, the first was declared superseded by the second indictment. On the first indictment was indorsed the fact that it was superseded, and on the second an indorsement was also made that it superseded the one filed June 17, 1901. The defendant also demurred to the second indictment, and the demurrer was overruled, and the defendant put upon trial. No decision was ever made upon the demurrer to the first indictment, and upon the trial under the second the defense is advanced that the pendency of an issue of law raised upon the first indictment precludes the attachment of jurisdiction under the second indictment, and that the first indictment could not be superseded, under the provisions of the Code of Criminal Procedure, and that the defendant could not be reindicted until the first demurrer had been disposed of, and then only (if the demurrer were sustained) in the event of the court permitting a resubmission to the grand jury to be made.

That the Code of Criminal Procedure applies to all proceedings in criminal actions from the time it took effect is manifest; that it furnishes exclusive rules of procedure for all cases, and in all stages of criminal actions and proceedings falling within its provisions, needs no argument; but that such provisions cover conditions and situations not expressly or impliedly within it is not a tenable proposition. Nowhere in that Code is reference made to the supersession of one indictment by another found by the same grand jury at the same term or otherwise, and yet a statute has been in existence for more than 70 years, and is still in existence, which provides that:

“If there he at any time pending against the same defendant two indictments for the same offense or two indictments for the same matter, although charged as different offenses, the indictment first found shall he deemed te be superseded by such second indictment and shall be quashed.”

When, in 1886, the legislature undertook the task of searching the great body of the statutory law of the state, to winnow it and declare what enactments were no longer in force, it specifically excepted from the repealing act passed June 5, 1886 (chapter 593, Laws 1886), the provision of section 42 of article 2 of title 4 of the fourth part of the Revised Statutes; being that above quoted, concerning the superseding of one indictment by another. Obviously, this section of the Revised Statutes was retained as part of the body of the law, because no provision had been made in the Code of Criminal Procedure for such a case. Its retention necessarily recognized that one indictment may be superseded by another, and it was enacted simply to regulate a rule of the common law. We are not without information that such was the object of that statute. In People v. Monroe Oyer and Terminer, 20 Wend, no, Judge Cowen refers to it as being a singular statute, and states that why it should have been passed in regard to a matter which stood upon a much better footing at the common law, it is difficult to conceive. What the footing of the rule at the common law was, is referred to in the proceedings against Sratton and others for deposing Lord Piggott (21 How. St. Tr. 1048), where the solicitor general moved to quash an information because the crown might go on to trial and judgment on a new information, notwithstanding the pend-ency of a former one; stating that, on all indictments or informations for crimes, the pendency of another prosecution for the same offense cannot be pleaded, as.it may be upon informations for penalties. In Hawk. P. C. bk. 2, c. 34, § 1, it is said that another prosecution depending is not a good plea to an indictment. In the Matter of Stratton, the court refused to quash because the attorney general had it in his power, by entering a^nol pros., to dispose of the information; and that was the condition at the common law referred to by Judge Cowen in the case above cited. The amendment of the common law by the section of the Revised Statutes above quoted consists in the provision that the first indictment must .be quashed. That section declares a positive rule of law, which permits of the supersession of one indictment by another by direction of the court; for, under the case of People v. Monroe Oyer and Terminer, the action of the court is required before the first indictment may be suppressed. The indorsements upon the indictments in this case are part of the record before us, and, in the absence of anything to show to the contrary, we must presume that the first indictment was, in substance, quashed by being superseded by order of the court, and not by the act of unauthorized officials or other persons. Here, then, is a positive rule of law, which is sought to be limited by some construction which it is supposed will harmonize it with the provisions of the Code of Criminal Procedure. There is nothing in that Code to limit the operation of the rule as one of the common law, modified by the Revised Statutes,

2. We are further asked to reverse the judgment and set aside the verdict 'on the ground of the abuse of counsel for the prosecution in statements made in opening the case and in summing up to the jury, and for the reason that such statements related to matters outside and irrelevant to the issues, and “were calculated to intimidate and coerce the jury, through threats, and by appeals to their fears and public opinion, were not rebuked by the judge, nor their continuance stopped, when objected to by the defendant, and they constitute an invasion of the defendant’s right to a fair and proper trial.” It is not necessary to repeat the remarks. They are set forth in the opinion of Mr. Justice McLAUGHLIN. The recorder is now put on trial, but I am unable to perceive that he failed in his duty to the defendant. Concerning the speeches or- remarks of counsel, our attention ¿s called again, as is becoming quite the fashion, to People v. Mull, 167 N. Y. 247 , 60 N. E. 629 ; People v. Fielding, 158 N. Y. 542 , 53 N. E. 497 , 46 L. R. A. 641 , 70 Am. St. Rep. 495 ; People v. Watkins, 23 App. Div. 253 , 48 N. Y. Supp. 856 . Whatever may be drawn from these cases by way of instruction upon the subject of the duty of counsel in addressing juries, neither they nor any other cases warrant the deduction that a verdict solemnly rendered on competent and convincing evidence must be set aside because, under pressure of great excitement, counsel make statements which by their very extravagance are rendered harmless. What right have we to assume that a special jury, drawn from a selected number of the most intelligent members of a metropolitan community, and who have answered the requirements of sections 7, 8, c. 378, Laws 1896, would be recreant to their duty, and coerced or induced to violate their oaths by the tumid style and overshot declaration of counsel in argument, even if, in unguarded moments, these blemishes should be introduced in an ad-dress by so very able and accomplished a lawyer as the prosecutor in this case? What was said by counsel, and is objected to here,

3. The contention is further made by the appellant that prejudicial error was committed by the trial court in its refusal to strike out the testimony of the witness Nettie Drexler. This woman testified that she overheard a conversation which took place between the defendant and Lena Schmidt, relating to the defendant’s conduct in making raids upon the house kept by the latter, turning the inmates out, and otherwise molesting and maltreating them, after he had been paid, as the prosecution claims, to protect them. This witness swears that she heard Mrs. Schmidt say to the defendant: “Why did you do this? You had the money, and now you are chasing out the girls.” The witness Drexler was then asked: “What did you hear Bissert say, if anything? A. I did not hear what answer he gave.” Thereupon the defendant’s counsel moved to strike out the testimony of this witness. The object of introducing this testimony, undoubtedly, was to show that the defendant acquiesced in the statement made by Mrs. Schmidt in the conversation testified to. The defendant claims that the fair construction of the answer of the witness is that something was said by the defendant in reply to Mrs. Schmidt, while the prosecution claims that her answer is susceptible of the construction that the defendant made no reply. I think this testimony should have been stricken out, but the question remains whether it really could have had any effect upon the jur>r, or whether it was of such importance that a verdict found upon other and independent evidence, sufficient to establish the charge, should be set aside. That it was not regarded as of any consequence by the defense, the prosecution, or the court, seems to be a fair conclusion from reading the record of the subsequent stages of the trial. We have in the record, in full, the addresses to the jury of the defendant’s counsel, the counsel for

“The testimony of prostitutes, as a general thing, should, be very closely scrutinized and weighed by a jury; and a conviction should never be had upon the testimony of prostitutes unless such testimony conforms to the circumstances happening at or about the time, and impresses the jury With the inherent truth of the story.”

In the same connection the court quoted the language of the Presiding Justice of this court in Re Cross, 85 Hun, 357 , 32 N. Y. Supp. 942 , as follows:

“It is undoubtedly true that much of the evidence upon which we must ■rely, if crime is to be punished, comes from polluted sources. Crime is not committed ordinarily with respectable and reputable witnesses looking on, who can testify to the facts, but it has its birth largely in secret, and amongst the disreputable; and the fact of its commission must be established, if at all, by proof taken from this class of the community. These facts should be no reason for allowing crime to go unpunished. It necessitates, however, a closer examination of the evidence, and some corroboration of the witnesses,, either from the nature of the testimony given, or by the testimony of other witnesses. If the story of such a witness is of such a character, and consistent in its details, and harmonizes so well with surrounding circumstances, as to carry conviction, even where there is no corroborative testimony, -it may afford satisfactory proof of guilt. But if such evidence is not consistent, abounds in contradictions, and shows a disregard of the truth, clearly it cannot form the basis of a judgment establishing guilt.”

4. It is claimed by the appellant that there was a fatal variance between the indictment and the proof. It is charged in the indictment that the offense with which the defendant was charged was committed on October 15, 1900, while the proof shows that the alleged crime was actually committed on the 29th of September, 1900. Upon this appearing on the trial, the defendant sought to take advantage of it in a perfectly legitimate way; but the variance was not material in this case, for the allegation of time in an indictment, unless such time is of the essence of the offense, need not be proved as laid in the indictment. Such was the rule at common law, even in cases of high treason. Sir Henry Vane’s Case, 6 How. St. Tr. 131. That rule has been followed in People v. Formosa, 131 N. Y. 478 , 30 N. E. 492 , 27 Am. St. Rep. 612 ; People v. Willis, 158 N. Y. 392 , 53 N. E. 29 ; People v. Emerson, 53 Hun, 437 , 6 N. Y. Supp. 274 ; People v. Jackson, 111 N. Y. 363 , 19 N. E. 54 ; and other cases. And section 280 of the Criminal Code provides that the precise time at which the crime was committed need not be stated in the indictment, but it may allege it to have been committed at any time before the finding thereof, “except where time is a material ingredient of the crime.”

5. It is also urged by the appellant that the second indictment was improperly found, because witnesses were not re-examined by the grand jury. If a second indictment might be found at all, it was not necessary to re-examine the witnesses. “The grand jury at any time during its term of organization and service—even at a subsequent term of the court—may find a second indictment as a substitute for the first, without hearing the evidence anew.” 1 Bish. Cr. Law, 870. Where a bill has been withdrawn or quashed, a new bill may be found as a substitute by the grand jury without examining witnesses. Whart. Cr. Prac. § 365. I find nothing in the Code of Criminal Procedure which, if I am right in the conclusion that a second indictment may be found to supersede the first, requires the grand jury to examine anew the witnesses upon whose testimony or statements the first indictment was found.

6. The principal witness for the prosecution to prove the crime laid in the indictment was one Lena Schmidt. She testified that on a certain day she paid a certain sum of money to the defendant for what is called “police protection” in conducting and maintaining a house of prostitution. The prosecution was allowed to prove that, on a date a few days preceding that upon which the alleged payment to the defendant was made, this witness drew from a savings bank a sum of money. This was testified to by an officer of the bank in which Lena Schmidt kept her account. That proof was undoubtedly considered material, as showing that the witness Schmidt was possessed of money, and the source from which she obtained it. I do not think it was material evidence, but at the same time it was not of such a character as would affect the merits of the case. It was

Various circumstances and details scattered through the record, to which it is not necessary now to refer, come in aid of the truth of the testimony of the chief witnesses for the prosecution. It is not required that special reference should be made to any other of the arguments advanced by the appellant for the reversal of this judgment. I think the defendant was properly convicted on the evidence, and that the judgment should be affirmed.

O’BRIEN, J., concurs.