The opinion
Vast Bbttnt, P. J.
In concurring in the able and exhaustive opinion of Mr. Justice Daniels, it may not be amiss to add a few suggestions in reference to some of the points which were called to the attention of the court upon the argument of these appeals.
It was claimed by the defendant that he had not been afforded the fair and impartial jury which was guaranteed him by the laws. An examination of the record shows, however, that this point is by no means well founded. The defendant had no right to claim that any particular juror should be impaneled in the jury which was to try him for this offense. All that he was entitled to was that the jury impaneled, and each and every one of them should be fair and impartial.
Upon an examination of the record presented upon these appeals, it will appear that to nine of the jurors no challenge was interposed, or if such challenge had been interposed, it was withdrawn; that, as to two of the jurors, although the appellant’s challenge was overruled, no exception was taken to such ruling ; and that as to one juror only was an exception taken to the overruling of the challenge. Upon reading the examination of this juror it will be seen that he was entirely competent, and .that the decision of the court in overruling the challenge was not erroneous.
It is also to be observed that at the time of the impaneling of this juror and at the time of the swearing of the jury the appellant had, through the courtesy of the district attorney, a peremptory challenge which he never availed himself of. It is apparent therefore, that in the opinion of the defendant’s counsel this juror was one who was entirely competent to sit upon the trial of the issues raised by the indictment and plea. This being the state of the record, it is apparent *481 that no just complaint can be urged in respect to the fairness and impartiality of the jury.
The record contains many exceptions to the admission of evidence as to the doings and sayings of many of the persons concerned in the transactions testified to upon this trial, which rulings were claimed to. be justified upon the ground that, if the jury found a conspiracy between these parties to bring about a given result by unlawful means, the evidence of the doings and sayings of each one of the conspirators was competent against each and all of them.
It was contended upon the part of the defendant that as he had not been charged in the indictment with a conspiracy, but with a felony, that he was being tried for a misdemeanor and convicted of a felony. It will be seen that this objection has no weight because the defendant was not being tried for a conspiracy. He was being tried for the felony charged in the indictment. And if another or different expression had been used to characterize the combination, confederation or association of these individuals for the purpose of effecting the unlawful object, the case would have been relieved entirely of this criticism, and thus such criticism is seen to be nothing but a matter of form.
If the evidence showed a combination, confederation or association of these various parties to effect by unlawful means the object which they were seeking, this fact rendered the evidence of the doings and sayings of each in the effectuating of that object, competent against every one of them. It is a familiar rule of law that where two or more parties associate themselves together for a given object, the doings and sayings of each in the pursuit of that object, are competent evidence against all; and that is the simple rule which was applied in admitting in the case at bar the evidence of the doings and saying of these various parties who were charged with having entered into the combination to procure by unlawful means, the assent of the Board of Aldermen to the building of the Broadway Surface Railroad.
Confederations of this kind rarely can be proved by direct *482 evidence, but it is necessary to introduce circumstantial evidence from which their existence may be inferred. The books are full of cases in which from the subsequent action of parties, juries are allowed to infer the existence of previous agreements or contracts between them.
In the opinion of Mr. Justice Daniels, it is demonstrated, as had already been decided by this court in the case of the People v. O’Neill, 5 N. Y. Crim. Rep., 302, that the jury had a right to believe from the testimony of Fullgraff that there; had been an agreement to bribe certain members of the Board of Aldermen in the interests of the Broadway Surface Railroad Company. It is claimed that the evidence of Fullgraff shows that the combination or confederation of the Aldermen was for the purpose of extortion, and that therefore-the force charged in the indictment could not have been used against them by the defendant and his associates. The evidence of Fullgraff shows undoubtedly, that the Aldermen entering into the combination were anxious for a due consideration, to be ravished of their official virtue and that no force beyond a money consideration was necessary to accomplish that object. But the offer of the money which was made to the Board was a violent assault upon the virtue of those officials which they were not prepared to withstand, and the evidence of which furnished the proof of the force charged in the indictment. There is no evidence that the-offer to vote for the Broadway Surface Road for a consideration came from the combining Aldermen; but the proof' showed that the offer was made to them, and accepted by them.
The testimony of Fullgraff and the corroborating circumstances furnished by the evidence, having established to the satisfaction of the jury the agreement to bribe and the partial payment of the same, in looking for the individual or individuals who made the offer, the attention is necessarily directed to those who were most deeply interested in the enterprise in reference to which the felonious agreement was made.
*483 Upon an examination of the record it will be seen that the persons most deeply interested in the success of the Broadway Surface road were the defendant and the Broadway Seventh & Avenue Railroad Company. It appears that the executive officers of that company feared a rival upon Broadway, and that the defendant evidently expected to realize large sums out of the success of the undertaking. The Broadway & Seventh Avenue Company not only would preserve its existing lines from a dangerous rival, but it would appear that they actually realized from the enterprise additional gains, as upon the completion of the work the defendant transferred to the President of such railroad in trust for the company almost all the stock of the Broadway Surface Railroad Company. The defendant also secured large sums out of the undertaking, because it appears that he received all the bonds issued by the Broadway Surface Railroad Company amounting to two and a half millions, and no expenditure appears which exceeds much more than a million.
Having our attention therefore necessarily directed to those most largely interested, as being the probable guilty parties in this arrangement, the evidence adduced tends strongly to confirm the suspicions thus aroused.
The defendant was a director, Mr. Foshay the President, and Mr. Kerr the Treasurer of the Broadway & Seventh Avenue Railroad Company, and such President and Treasurer seem to have been the executive officers of the company and to have attended almost exclusively to the management of its affairs.
Immediately after the passage of the railroad act of 1884, we find the defendant, Mr. Foshay, and Mr. Kerr, engaged in the organization of the Broadway Surface Railroad Company, of which company four of the directors of the Broadway and the Seventh Avenue Company were incorporators, and of which company the directors were the friends, relations, attorneys and counsel of the defendant and the Broadway and Seventh Avenue Company,none ofwhom (except perhaps Mr. *484 Richmond) appear to have made any payment upon the stock subscribed for by them.
Traffic arrangements were at once entered into between these companies, although it was apparent that a long period of time must elapse before the right to build the Broadway Surface Road could possibly be secured. Early in June, 1884» the Broadway Surface Railroad Company authorized the issue of .$1,500,000 of bonds secured by a first mortgage to be used and applied in furtherance of the construction, and completion of its road. In this month the proposition to pay to certain members of the Board of Aldermen the sum of $500,000, for the purpose of securing their assent to a resolution authorizing the construction of this road, seems to have been made and accepted, and the petition of the Broadway Surface Railroad Company for the consent of the Board of Aldermen formally presented for their action. In July the Board of Directors of the Broadway & Seventh Avenue Company after reciting that for the purpose of carrying into effect the traffic agreement with the Broadway Surface Company, it would he necessary to purchase lands, enlarge the depot and extend the facilities of the Broadway and Seventh Avenue Company, authorize the issuing of $500,000 of bonds to be secured by a mortgage upon the real estate and franchises of the company, and further authorized the President for the purpose of carrying into effect such contract, to negotiate 150 bonds of a previous issue then in the treasury of the company. These bonds were printed as rapidly as it was possible to be done, extraordinary expedition being urged upon the engraver, and they were furnished by him in seven days after the passage of the resolution. Messrs. Foshay and Kerr immediately set about their negotiation, desiring that they should be sold at once in order that they might realize the proceeds. The broker to whom the negotiation was confided, told them that if he had a little time, he would undoubtedly be able to sell these bonds at par, but their impatience was so great that the securities were sold at a discount of about 15 per cent, although the stock of the *485 company was selling in the market at 160 and although there was no pressing need for any money to be used in the manner contemplated in the resolution authorizing the issuance of these bonds, as appears from the fact that no money was actually used for any of those purposes until a year after-wards, and then all of the money so used was derived from other sources. When the purchasers of the bonds came to pay for the same the extraordinary requirement was made that they should be paid for in large bills, or if checks were received they were immediately turned into bills of a similar denomination and not deposited. In this way, on the 4th of August all the bonds had been disposed of and $500,000 in bills realized upon the sale of securities amounting at par. to $575,000 No entries of this cash on hand were evermade in the books of the Broadway & Seventh Avenue Company as such, nor was any part of the same ever deposited in any bank account, and no portion thereof was ever applied to the purchase of lands, enlarging the depot or extending the facilities of the company, and from that timé no trace of that money has ever been found, except the fragments which may have been seen in the hands of some of the combining Aldermen at a later period. During all this time the defendant and Messrs. Kerr and Foshay, and others, were having almost daily interviews at the offices of their counsel and the Broadway Surface Railroad Company. On the 5th of August there was a meeting of the Railroad Committee of the Board of Aldermen to consider the question of granting the petition of the Broadway Surface Company which had been referred to them. While the committee was in the session, the counsel of the company drew the report to be signed by the committee and the resolution. This, when engrossed, the defendant sent to Mr. Richmond with a request to hand the same to Moloney, (who appears to have been the channel through which the defendant and his associates made their communications to the combining Aldermen) to be presented to the Board. This report and resolution were adopted by the committee, and at a meeting of the Board held on the 6th of *486 August, the resolution was passed. Prior to this time at a meeting of the Board of Directors of the Broadway Surface Company the proposition was received from the defendant to construct and equip the road of this company and pay all legal expenses incurred, and to be thereafter incurred, in consideration of all the bonds and all the stock of the company, except that subscribed for by the Directors, which proposition was accepted and a contract entered into between the parties. On the 18th of August the resolution of the Board of Aldermen giving its consent to the construction of the road, was vetoed by the Mayor. On the evening of this day, according to the testimony of Mr. Powell, he met the defendant at the Fifth Avenue Hotel, and in response to an inquiry as to what he was going to do, the defendant told him that he had the Board of Aldermen fixed, or words to that effect. It is true that upon previous examinations Mr. Powell made use of different expressions, but the purport of the whole of his testimony has always been that the defendant told him that it had been arranged to pass the resolution over the veto of the Mayor. Before the time arrived at which the Aldermen could act upon this veto an injunction against the Board of Aldermen was procured. The counsel for the Broadway Surface Railroad Company intervened actively in the settlement of this litigation, and succeeded in procuring a consent for discontinuance on the 29th August, upon which an order was duly entered. A meeting was called for the next morning at the unusual hour of nine o’clock; Mr. Moloney was engaged in procuring the signatures to the call of the meeting, and the defendant personally requested the attendance of at least one of the Aldermen. At the meeting of the 30th of August, the resolution was passed over the Mayor’s veto. It having been ascertained that this meeting was irregular, on the 6th of October a second petition was presented, and on the 3rd of November a second resolution was passed, on the 24th again vetoed, and on the 5th of December again passed over the veto. Shortly after this final action the evidence shows that several members of the Board of Aldermen, together *487 with Mr. Moloney, were found to be in possession of bills of precisely the same denominations as those which had been procured upon the sale of the Broadway & Seventh Avenue ■Company’s bonds.
In June, 1885, the right to construct the road having been fully acquired, the road was built. About the same time, the Broadway Surface Railroad Company authorized the issuance of $1,000,000 of bonds in addition to those already issued, to be secured by a second mortgage on the property ■of the company, $450,000 to be applied to the purchase of the stage lines with their stages, horses, harness, etc., and the balance of the bonds, $550,000 to be used and applied in furtherence of the construction, completion, finishing, equipment and operation of the road. At a subsequent meeting of the Board of Directors these bonds, together with the first mortgage bonds and stock mentioned in the contract, with the defendant, were directed to be delivered to him, he to ■complete in his own name the purchase of the said stage lines.
In this month an attempt was made to account on the books of the Broadway and Seventh Avenue Company for the $500,-000 raised upon the sale of their bonds. For this purpose vouchers were handed by Mr. Foshay to the bookkeeper to make the entries, two of which were signed by the defendant, amounting to $302,633.32, $230,000 of which being apparently for money paid to the defendant for horses, harness •and other equipments, $7,633.32 for the construction of additional sidings, etc., and $75,000 for 75 cars to be delivered. The sum of $148,866.68 was also charged as having been paid for legal expenses and $2,500 for the services of a civil engineer. By his contract with the Broadway Surface Company, the defendant was to pay these legal expenses out of the proceeds of the bonds of th it company, and there was no legal obligation upon the Broadway and Seventh Avenue Company to pay any part of such expenses, and in fact they were not so paid, the proof showing that they were paid by the defendant. The proof also shows that the item of *488 $230,000 for horses, harness, etc., was fictitious, that no harness was ever purchased by or delivered to the Broadway and Seventh Avenue Railroad Company, and that but 600 horses were delivered to that company by the defendant, the outside value of which was, $125 apiece, making altogether $75,000. In this way, the sum of $453,000 was attempted to be accounted for, and the balance was furnished by a transfer by Mr. Kerr of $47,000 from his own private bank account to the coupon bank account of the Broadway and Seventh Avenue Company. It will thus be seen that the defendant and Mr. Kerr acknowledged the receipt of the whole $500,000, the proceeds of the bonds sold by the Broadway and Seventh Avenue Railroad Company, which amount has entirely disappeared, as the amounts mentioned in the vouchers above mentioned, which were paid by the defendant in money, were paid by money realized on checks drawn from his private bank account, into which account, or into any account, no part of the proceeds of these bonds seems ever to have been deposited.
From these circumstances, the conclusion is inevitably forced upon us that the whole of those entries were made for the purpose of covering up the disposition that was made of the $500,000, realized upon the sale of the bonds of the Broadway and Seventh Avenue Company, and that the necessity for the making of such fictitious entries arose from the fact that the defendant had made some unlawful disposition of the money which he admits having received.
The story told by the defendant before the Senate Investigating Committee is evidently entirely without foundation. It is incredible that a man should within two or three days receive in payment of moneys claimed to have been disbursed by him, about four hundred thousand dollars, and so soon lose all memory as to its disposition; and we find it impossible to believe that Mr. Foshay, having on hand in cash a large sum of money belonging to the Broadway and Seventh Avenue Railroad Company, if the evidence is true-ever requested the defendant to make these disbursements. *489 on behalf of that company out of his own money, repaying the amounts almost immediately in bills. That there was an unlawful use of money in connection with this enterprise, was established to the satisfaction of the jury by the evidence of Mr. Fullgraff and the circumstances corroborating such testimony ; and as we have seen that in view of the suspicious circumstances attending the raising of the $500,000 upon the bonds of the Broadway and Seventh Avenue Company, and the attempt to account for the same by false and fraudulent vouchers and entries in the books of the company, some of which vouchers at least, if not all, were furnished by the defendant, an unlawful use must have been made of this money to which the defendant was a party, and to conceal which, these false entries were made, we cannot but conclude that this was the money used to corrupt some of the Aldermen in the interest of the Broadway enterprise, and that the defendant was cognizant of and a party to such corruption.
This review of the prominent facts shows conclusively that the proposition urged by the defendant’s counsel that there was no evidence connecting the defendant with the criminal combination of certain members of the Board of Aldermen is unfounded. There is to be found in the record a, large amount of evidence which confirms the conclusions above stated, but which it has been impossible to state within the limits of this concurring opinion, as we have been necessarily confined therein to the more salient features of the evidence.
The objection to the admissibility of the testimony of Mr. Pottle as to the interview between the defendant and himself at the Delavan House, in 1883, was strongly urged upon the court. That this testimony was properly received for the purpose of showing the intense interest which the defendant had in the enterprise of building a Broadway Surface railroad has been demonstrated by Mr. Justice Daniels in his learned opinion.
There seems, however, to be another ground upon which the admission of this testimony may be defended. The de *490 fense throughout the trial of this cause insisted that even if the jury should find that money was paid to Fullgraff by those interested in the enterprise, there was no evidence from which a corrupt purpose might be inferred. That as the money was paid after the services had been rendered, and as Fulgraff had publicly declared his intention to vote for the measure, the jury could not find that it had.been paid in pursuance of any previous agreement made for the purpose ■of influencing the action of the Aldermen, but was given as a ■gratuity. To rebut this proposition and to establish the intent with which the defendant acted in his payments of money to public officials, the prosecution had the right to show other acts of the defendant done by him in furtherance of this .same general scheme, which were inconsistent with an innocent intent. It is true that it would not have been competent to prove corrupt attempts upon the part of the defendant in furtherance of other enterprises, but the evidence offered related exclusively to a measure necessary to the success of this same enterprise, and one upon which all subsequent action in furtherance of this scheme depended, and without which no more whatever could be made towards the attainment of the desired end. All the acts of a party done in the pursuit of a given end, whether they be lawful or unlawful, form competent proof for the purpose of characterizing the intent with which the particular act under investigation h.as been committed. If only one unlawful act is proved, the evidence is necessarily of less weight than if many are established. But the weakness of the evidence forms no ground for its exclusion; it only limits the influence which it should iave upon the jury.
In his opinion Mr. Justice Daniels has conclusively shown that the objection to the admission of the evidence of the defendant taken before the Senate Committee is entirely without foundation, but there are one or two additional considerations to which it may be proper to call attention.
By article 15, section 2, of the Constitution it is provided •that any person who shall offer or promise a bribe to an offi *491 cer, if it shall be received, shall be deemed guilty of a felony and liable to punishment, except as herein provided. Then follows a provision that no person offering a bribe shall, up on any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto, and that he shall not be liable to civil or criminal prosecution therefor, if he shall testify to the giving or offering of such bribe. By this provision the privilege of refusing to answer is taken from a witness only when called upon to testify in relation to the offering and acceptance of a bribe upon the prosecution of the official bribed, and then only if he has testified to the giving or offering such bribe. A witness is therefore privileged from answering any question which may tend to criminate himself in any proceeding of any nature, unless he is called upon to testify in a proceeding relating to the prosecution of an officer for receiving a bribe, and he has testified to the giving or offering such bribe, and unless he so testified upon such a prosecution, he is liable to punishment if he has been guilty of the offense of offering a bribe.
This being a constitutional provision even if the legislature attempted to extend the exemption by making it apply to other or different proceedings, such legislation would be null and void as in contravention of the organic law of the land.
It is.apparent, however, that the legislature in framing the 79th section of the Penal Code were simply attempting to carry out these provisions of the 'Constitution, and that the exemptions inserted in that section were not intended to be and were not of greater scope than those mentioned in the constitution above referred to.
The words “ trial, hearing, proceeding or investigation” evidently were all intended to refer to judicial proceedings.
A trial of a person indicted, a hearing before a committing magistrate, a proceeding or investigation before a grand jury preparatory to an indictment, are all proceedings judicial in their character and directed against some particular person or persons. If there were any doubt as to this being the *492 proper construction to be put upon this word “ investigation” it seems to be entirely removed when we consider the sense in which it has been employed in section 4 of the article of the Constitution above referred to.
Section 4 provides that “ any District Attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to Ms knowledge, shall be removed from office by the governor, after due notice and an opportunity of being heard in his defense. The expenses which shall be incurred by any county in investigating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this state within such county shall be a charge upon the state ” etc.
This last clause is used in direct connection with that relating to the dereliction in the duty of District Attorneys and evidently relates to investigations and prosecutions conducted by the District Attorney, who is the only person authorized by law to represent the county in investigations and prosecutions carried on, on behalf of the county, and wMch can only be conducted by means of proceedings before grand juries or committing magistrates. It was this class of investigations, recognized and designated by the Constitution, which the legislature had in mind in framing the provisions of the Penal Code, and which were enacted to carry into effect the requirements of the Constitution, and the exemptions contained in Section 79 of the Penal Code were not intended to and do not apply to any other or different proceedings.
Whatever doubts may have existed at the time of the argument as to some of the points raised upon these appeals they have been entirely dissipated by an examination of the record; and the jury having before them the strong chain of circumstantial evidence presented by this record, were well justified, if they gave any credence to the testimony of Fullgraff that the Aldermen had been actually bribed, in coming to the conclusion at wMch they arrived. *493 The judgment and orders appealed from should be affirmed.
Beady, J.
The prosecution in order to make manifest the charge that the implicated Alderman had combined to vote for the consent given to the Broadway Surface Road, for a compensation in money which was furnished by the defendant, or through his instrumentality, with guilty knowledge, proved numerous facts and circumstances after the examination of one of the combination, some of which were also designed to corroborate his statement, weakened as it was by his confession that he had on the same subject committed wilful and deliberate perjury.
The defendant complains of this mode of procedure and save the assertion that his privileges and the protection afforded by the Constitution were invaded and violated, it forms the chief feature of his appeal. Justice Daniels has discussed these points as well as others, and disposed of them on principle and authority adversely to the defendant, and the other members of the court concur in the views exposed by him. It may not be improper to add that the various acts, circumstances, incidents and events arrayed by the people in relation to the combination, and the defendant’s participation in the scheme it embraced, were clearly admissible as indicated by the text books and authorities illustrative of the different elements which may be employed to establish the commission of such offenses. In all accusations therefore of persons who must act in concert to accomplish the object in view, whatever is done by either in furtherance of it, and indeed whatever is done by either after the illegal act is performed tending to prove the criminal compact and its consummation, is admissible. And as such unions are secretly formed for obvious reasons, it follows that they may not be shown to have existed except by proof of facts and circumstances, which, isolated would seem of little value—indeed, insignificant—but which when grouped present an imposing demonstration. The rules of evidence, as a consequence *494 necessarily expand to receive such proof, and therefore even remote acts and incidents, whether directly or collaterally affecting the question, hut which tend to establish the imputed, crime, are admissible, and the consideration of the subject by numerous tribunals has led to the adoption of rules in accordance with the views thus expressed. The prosecution have resorted herein to such evidence, not only to show the unlawful combination, but to establish the guilt of the defendant, and hence a multitude of facts and circumstances, which, though, when separately considered, are seemingly unimportant, become momentous when connected with others, the whole forming a compact mass—a legal mosaic, impressive, commanding, convincing.
The presentation thus made may well be regarded therefore, as satisfactory evidence of the combination and of the guilt of the defendant, and for this reason the learned justice presiding at the trial would not have been justified in withholding their consideration from the jury. It was his-province and duty to determine whether there was sufficient evidence to submit to the jury the issue whether the Aider-man named had in fact been bribed, and if yea, whether the testimony relating to the defendant’s guilt as charged, was. sufficient to require the submission of that issue to the jury.
The court is unanimous that on both of these questions the presiding justice in the court below exercised his judgment properly. If, however, during the investigation which he conducted, some fact, incident, or circumstance was erroneously admitted, nevertheless as shown by Justice Daniels, unless substantial injustice was done, the verdict should not for that reason be disturbed. Now a mere error in the receipt or exclusion of evidence, which gives rise to a technical objection, must be disregarded. Some substantial right or benefit must appear to have been violated or withheld. Code of Grim. Proc., § 542. This statutory enactment dissipates some "rules of review which heretofore existed, and perhaps facilitates the disposition of appeals in criminal cases.
Babtlett, J.
I agree with the other members of the *495 court in their concurrence in the opinion of Mr. Justice Daniels. I think the evidence for the prosecution required, the submission of the case to the jury, and that the trial was conducted without any error detrimental to the rights of the defendant.
Judgment affirmed.
Note.—As to the questions covered by this case see the cases of People v. Jaehne, 4 N. Y. Crim. 478, and People v. O’Neill, 5 Id., 302.
In the latter case the same witness, Fullgraff, was examined as to the same facts testified to by him in the present case, and it was there held (5 N. Y. Grim. 331, etseq.) that it is entirely within the power of the jury to determine what credit or belief they shall accord a witness who has previously sworn to facts deemed inconsistent with his testimony given before them ; and the court cannot instruct the jury that they must disregard the testimony of such witness.
On the question of the competency of the evidence of a witness who has sworn wilfully falsely upon the same subject, see People v. Petmecky, 2 N. Y. Crim., 450, affirmed 3 N. Y. Crim., 288.
In a recent case in Alabama it was proved that witnesses had, at a prior trial of the case, made statements different from those made by them on the present trial. Upon appeal the court said, “Founded upon the many and various considerations affecting the credibility of a witness, and the necessity for the ascertainment of the truth that the jury should be free and unembarrassed in determining what witnesses and parts of evidence they will credit, the tendency of modern authority is to relax and restrict the application of the maxim Falsus in uno, falsus in omnibus. The jury are not. bound to wholly discredit a witness if his testimony as to material facts is corroborated by other credible and unimpeached witnesses. In Grimes v. State, 63 Ala. 166 , it is said, 1 We are prepared to follow the line of authorities which hold the maxim is not a rule of law operating a disqualification of the witness, to be given in charge to the jury as imperatively binding them ; that it is to be applied by the jury according to their sound judgment for the ascertainment and not for the exclusion of truth.’ The charge given by the court is in accordance with this rule. It does not instruct the jury that they are bound to disregard the testimony of impeached witnesses, but left it to their sound discretion and judgment. * * * The present charge is based on the wilful and corrupt false swearing of the witnesses. In such case there is no error in instructing the jury that they may disregard their evidence.” Jordan v. State (Ala. Feb. 1887), 1 So. Rep. 577 ; 584.
To what extent the jury should disregard the testimony of a witness who has wilfully perverted the truth is a question for them to consider and determine. There is no rule of law that the entire testimony of such a witness must be disregarded. People v. Reavey, 4 N. Y. Crim., 1; People v. Buddensieck, Id. 230 ; People v. Stott, Id., 306.
*496 “ The jury are the sole and exclusive judges of the credibility of the witnesses. With that the court has nothing to do, and if you helieve and find from, the evidence that any witness or witnesses have wilfully testified falsely to any material fact in the cause, you are at liberty to disregard the whole or any portion of such witness or witnesses testimony.” State v. Johnson, (Mo., March 1887,) 8 West. Rep., 711,712 ; 3 S. W. Rep., 868 , 869.
Where the testimony of a witness is impeached by a proof of contradictory statements made out of court, it may not be shown that he made out of court statements consistent with his testimony. Jenkins v. Hudson, 40 Hun, 424 .
The confession or declaration of a witness made before the trial of another for a crime may be used to contradict the testimony given by such witness on such trial. If it was given under improper influences, this goes not to its competency, but to its credibility. State v. Mills, 91 N. C. 581 .
It is not error in permitting a witness, in describing what took place at an alleged disorderly house, to give his conclusion that the noises were “ infernal ” and “unearthly,” where he subsequently describes the disturbances and states that they consisted of “shrieks and yells and howls.” Berry v. People, 1 N. Y. Crim., 43.
Where it appears that a witness was not able to positively identify a person, it is error to allow the witness to testify to his “thought ” and “impression ” upon the subject. People v. Williams, 1 N. Y. Crim., 336.
Where by the ruling of the court certain evidence is taken for a certain purpose, it must he presumed that it was so used in the determination of the ease. People v. Ware, 1 N. Y. Crim., 166.
When guilty knowledge is made an ingredient of crime, acts of a similar character indicating such knowledge may be proved, and the circumstance that such evidence may establish that defendant has committed another offense does not render such proof incompetent. People v. Lyon, 1 N Y, Crim., 400.
That evidence of prior acts of violence of defendant toward the victim of his assault shows the prisoner guilty of another offense does not render such ■evidence incompetent on the issue on trial. People v. Jones, 3 N. Y. Grim., 252.
The proof of a proposition by the accused to burn the building in question, made some years before the burning for which he was indicted, to one not connected with the offense, is not competent. Carncross v. People, N. Y. Crim., 518.
An error in receiving hearsay testimony of a witness for the prosecution is cured when the fact testified to appears on the direct examination of the defendant. People v. Elmore, 3 N. Y. Crim., 264.
A declaration made by one accused of a crime denying any criminal act and explaining to. her own advantage a suspicious circumstance, is not to be deemed a confession under section 395 Code Grim. Proc. People v. McCallam, 3 N. Y. Crim., 189.
If evidence be pertinent it is not objectionable because its effect may be slight. People v. Buddensieck, 4 N. Y. Crim., 230.
That a witness has been accused or convicted of crime affects his credibility not his competence. People v. Sweeney, 4 N. Y. Crim., 275.
*497 Where it is undisputed that a crime has been committed of which complainant was the victim, a statement by the trial judge that the crime was one of the most atrocious known to the law, is not error where the judge expresses no opinion upon the guilt of the defendant and leaves all the facts to the jury under proper instructions. People v. McInerney, 5 N. Y. Crim., 47.
To show common interest and purpose of defendant and other persons indicted with him, it is competent to prove participation of defendant upon other occasions with these persons in the business in which the crime was ■committed. People v. Bassford, 3 N. Y. Crim., 219.
Whenever common purpose or conspiracy by the defendants is shown then •acts of any one of them relating to the alleged offense, though in the absence of the others, is admissible, and the acts of one in the same common purpose became those of all. Id.
Declaration and acts of a co-conspirator made in furtherance of the prosecution of the common object of the conspiracy or constituting a part of the res gestae of some act done for that purpose, are the acts and declarations of all, and are admissible against them. People v. Murphy, 3 N. Y. Crim., 338.
Though the%ommon design is the essence of the charge of conspiracy, it is not necessary to prove that the defendants came together and actually agreed in terms to follow that design, and to pursue it by common means. If they pursue by their acts the same object, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. Spies v. People, (“ The Anarchists’ Case ”) (111., Sept., 1887) 10 West. Rep., 791; 12 E". East. Rep., 865.
A conspiracy may be described in general terms as a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. It is not necessary, however, that the accused should have been an original contriver of the scheme, for he may become a partaker in it by joining the others at any time while it is being executed. Id.
As soon as the union of wills for the unlawful purpose is perfected, the offence of conspiracy is complete. This joint assent of minds may be established by circumstantial evidence. Id.
Where there is a conspiracy to accomplish an unlawful purpose, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the common purpose. Id.
Every act and declaration of each conspirator in furtherance of the general design is, in contemplation of law, the act and declaration of all the conspirators, and is therefore original evidence against each of them. Id.
After a conspiracy is established, only the declaration of each member which are in furtherance of the common design can be produced in evidence against the other members. Declarations which are merely narrative as to what has *498 been or will be done, are incompetent except against the defendant making them, or in whose presence they are made. Id.
The order in which the evidence in a trial for conspiracy shall be introduced, is largely in the discretion of the trial judge. Acts or declarations of one of the defendants may sometimes be admitted in evidence before sufficient proof of the conspiracy has been given upon the prosecutor undertaking to produce such proof subsequently. Id.
It is the duty of the jury to consider all the instructions together, and if an instruction although not stating the law correctly is qualified by others so that the jury were not likely to be misled, the error will be held to be obviated. . Id.
Although an instruction considered by itself is too general, yet if it is properly limited by others given on the other side so that it is not probable that it could have misled the jury, judgment will not be reversed on account ot such instruction. Id.
Unless objection is shown to one or more of the jurors who tried the case, the antecedent rulings of the court upon the competency or incompetency of jurors who have been challenged and stood aside, will not be inquired into on appeal, and the judgment will not be reversed for errors committed by the trial judge in overruling challenges for cause to jurors even though defendants exhausted their peremptory challenges unless it is further shown that an objectionable juror was forced upon them and sat in the case after they had exhausted their peremptory challenges. Id.
The mere fact that a juror may have a prejudice against the crime for which the defendant is to be tried does not disqualify him as a juror. Id.
“ There is just as much bribery in being paid to perform one’s duty as to violate one’s duty.” Charge of Barrett, J;, in People v. Jaehne, 4 N. Y. Crim. 496.