#### The People of the State of New York, Plaintiff, *v.*Roland B. Molineux, Defendant.

(Supreme Court, New York Criminal Term,

April, 1899.)

1. Crimes — Indictment set aside for admission of illegal evidence before the grand jury.

Where the legal evidence before a grand jury is sufficient and alone influenced them to find an indictment it will not be dismissed for the admission of illegal evidence, but where the grand jury must have been more or less influenced by illegal evidence, which was admitted by them, the indictment will be set aside.

3. Same — Comparison of writings admissible before the grand jury.

The statute authorizing the comparison of a disputed writing with any writing proved to the satisfaction of the "court to be genuine (Laws of 1880, chap. 86, as amended by Laws of 1888, chap. 555) is applicable to hearings before a grand jury.

3. Same — Same.

Upon the hearing before a grand jury of a charge against one accused of murdering one Mrs. Adams by sending through the mail to one •Cornish a package of poison, some of which. Mrs. Adams took and from *80which she died, the grand jury may, after a certain series of hand-writings of the accused have been sufficiently established to be genuine, properly compare them with the address on the poison package which the People claim, and the accused denies, is in his handwriting.

4. Same — Disputed writings cannot be compared with other disputed writings. ,

Where, however, a second series of handwritings, purporting to be written by Cornish and by one Barnett, who also died of poison, and which are claimed by the People to be forgeries, executed by the accused, are received in evidence and are used by the grand jury as standards of comparison with the address on the poison package and are made the subject of expert testimony, although they were never proven to have been mailed, nor received by any. one, nor proved to be the genuine handwriting of the defendant except by comparison with the first series, the indictment will be dismissed as the second series are themselves disputed writings and therefore cannot be compared with the disputed writing on the package of poison, and particularly where they tend to connect the accused with the murder of Barnett, an independent crime.

Morion in behalf of defendant to discharge an indictment against him for the crime of murder, first degree, in causing the death of of one Mrs. Adams, by sending through the mail, addressed to one Cornish, a poison package, and some of which poison Mrs. Ad arris, took and from which she died. The grounds of the motion are that other than legal evidence was given before the grand jury, and that sufficient legal evidence was not- given before the grand jury te authorize the finding of an indictment.

Asa Bird Gardiner, district attorney, and James W. Osborn,, assistant district attorney, for People.

Weeks, Battle *&*Marshall, for defendant.

Williams, J.

For the purposes of this motion I shall assume that the court has power, to grant the relief asked for, if the grounds of' the motion are satisfactorily established.

I have examined the cases to which my attention has been called, bearing upon this question: People v. Willis, 23 Misc. Rep. 568, Van Wyck, J.; People v. Winant, 24 id. 361, Dickey, J.; People v. Petrea, 92 N. Y. 128, Andrews, Ch. J.; People v. Clark, *818 N. Y. Crim. 169, Van Brunt, J.; People v. Lindenborn, 23 Misc. Rep. 426, Fursman, J.; People v. Brickner, 8 N. Y. Crim. 217, Rumsey, J.; People v. Vaughan, 19 Misc. Rep. 298; 11 N. Y. Crim. 388, Hurd, J., and other reported and unreported cases.

In view of the conflict of opinion in the cases cited, I think it better that I should add nothing to the literature already published and unpublished, by any personal views of my own, but follow what seems to be the pretty unanimous opinion of the judges in the first department, including two members of the present Appellate Division, and leave some appellate court to settle the question if my conclusion should be unsatisfactory to the People.

I come, therefore, directly to the two grounds upon which the motion is based.

As to the giving of other than legal evidence before fhe grand jury it is provided by section 256 of the Code of Criminal Procedure, that the grand jury can receive none hut legal evidence. Grand jurors, however, are not supposed to be learned in the law, or able to judge correctly whether all evidence offered before them is legal or not. So long as lawyers aud judges differ as to the rules of evidence, grand jurors may be mistaken also. The jury should use the best judgment they have, and should not receive evidence, known and understood by them to be improper aud illegal. In almost every case, however, some evidence will be given which would he excluded, if the court were present to pass upon the competency thereof.

It would be an unreasonable rule, therefore, which should require the court to discharge every indictment, where illegal evidence has been given before the grand jury. If the legal evidence before the grand jury was such that, disregarding the improper evidence, the indictment would still have been found; if the jury were not influenced to find the indictment by the improper evidence, but by the legal evidence before them, then the court should permit the indictment to stand, and- the defendant to be' tried thereon.

The minutes of the grand jury show that some evidence was given by the witness Cornish which would not have- been permitted by the court.

This evidence related to the relations between himself and the defendant and was only important on the question of motive. Inasmuch as the evidence given before the coroner, by the defendant, and which was before the grand jury, showed that un*82friendly relations did exist between the .parties, it would not seem that the evidence of 0ornish which is objected to as improper could have had any material influence with the grand jury,, in'the finding of the indictment. More serious questions are raised by the claim ■ made on the part of the defendant that all the evidence given before the grand jury by handwriting experts, based upon a comparison of the disputed handwriting with the alleged genuine handwriting of the defendant, and .all comparison by the jurors themselves of such disputed with such alleged genuine handwritings was illegal and improper. Prior to 1880 the comparison of disputed with genuine handwritings could only be made when the genuine handwriting was properly in evidence for other purposes, but this rule was changed by chapter 36 of the Laws of 1880, amended by chapter 555- of the Laws of 1888. These - acts, expressly amend the law of evidence and practice on civil and criminal trials, and authorize the adinission in evidence of genuine handwritings for the sole purpose of comparison, though, not admissible in the case for any other purpose. People v. Corey, 148 N. Y. 500, and cases therein referred to.

Most, if not all, the alleged genuine handwritings used for the purposé of comparison by the experts and the grand jury in this case were inadmissible for any other purpose than comparison. The object was to show that defendant wrote the' address, upon. the poison package, which must, be regarded as the disputed writing in question. This evidence and these writings, therefore, were legal evidence before the grand jury, if at all, solely by virtue, of the provisions of the acts of 1880 and. 1888. The language of these statutes is:'

“ Section 1. Comparison of a disputed writing, with any writing proved to the satisfaction .of the court to- he genuine, shall be permitted to he made by witnesses in all trials and proceedings-, and such writings and the evidence of witnesses respecting • the same may he submitted’to the court and jury as evidence of the genuineness, or otherwise, of the- writing in dispute.

“ § 2. Comparison. of a disputed writing with any writing proved to «the satisfaction of the court to be the’ genuine" handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing, shall be permitted and submitted to the jury in a like manner.”

Evidently this second section, which was added'in 1888, was designed to obviate some uncertainty in the language of the first *83section enacted in 1880. The language to which attention is called here is, however, found in both sections: “ Comparison of a disputed handwriting wdth any writing proved to the satisfaction of the court to be genuine.” It is claimed that this statute is not applicable to hearings before grand juries.

First. Because there is no defendant there to dispute a handwriting.

Second. Because the statute relates only to the law of evidence and practice on civil and criminal trials.

Third. Because there' is no *court*with the grand jury to determine what writings are proved to its satisfaction, so as to establish their character -as standards, with which to compare the disputed writing.

In this case the purpose and object of the proof was to show that the defendant wrote the address upon the poison package. .

The People alleged that fact, and sought to prove it. Every material fact in the case against the defendant had to be proved, as though it was denied, or disputed, and there would, therefore, seem to be no reason why this address should not be deemed a disputed writing within the. meaning of the statute. The defendant could not dispute anything literally until called upon to plead, after indictment found. A plea of not guilty would put in issue merely the question of guilt, and would not necessarily dispute every fact attempted to be proved by the People for the purpose-of establishing guilt. So that ordinarily there would be no more a disputed writing upon the trial of an indictment while the People were giving their evidence in chief, than before the grand jury, where the indictment was found. There was clearly a disputed writing before the grand jury, within the meaning of the statute, the address upon the poison.package.

While the statute is entitled, “An act to amend the law of evidence and practice on civil and criminal trials,” yet in the body of section 1 the language used is “ in all trials and proceedings,” and I cannot believe the legislature intended to limit the rule of evidence to trials as distinguished from other legal hearings where evidence was to be given. There are many such hearings in civil matters, and. in criminal also. Coroners’ inquests, preliminary examinations, and hearings before grand juries are of the latter class.

The more troublesome suggestion is the third one, that there is no court present at hearings before grand juries to determine whether the standards sought to be used for comparison are proved *84to its satisfaction to be genuine. It is well to understand what power and duty is" given to and imposed upon the court by this statute. . The court on trials is to determine all questions of law. The jury are the sole judges of the facts. Under this statute the court is given the power, and has -the duty of determining, in the first instance, whether it is satisfied the standards presented for comparison are .genuine. This is, however, merely to enable, the court to say whether the writings may be used by the witnesses and submitted to the jury for the. purposes .of comparison.

The decision of the court is not binding upon the jury, when the -writings and the evidence are before them. The jury may then disagree with the court, determine that the standards submitted are not genuine, and refuse to use them for the purpose of comparison with the disputed handwriting. There can be no doubt .as to this proposition. We are here dealing with a criminal case, a murder case. In such a. case let us suppose there is a disputed ' writing, which it is important the People should convince the jury was written by the defendant. Other writings are produced and are proposed to be used as standards for comparison. The witnesses for the People -say these latter are the defendant’s genuine handwriting. The defendant, or some witnesses called in his behalf, say they are not- the defendant’s handwriting. The court, regarding the evidence of genuineness satisfactory, admits the writings as standards; Witnesses make the comparison of handwritings, and express their opinions based thereon, that the defendant wrote the disputed writing, and the evidence and writings are all submitted to the jury. The - court is requested to charge the jury, that they are-the sole judges of the fact whether the standards.• submitted are-the genuine handwriting of the defendant, and if they are not satisfied from the evidence that they are, they should so -find, regardless, of the decision of the court upon that question; and in that event they should disregard all the evidence of witnesses based upon comparison with such standards and should-make no' such comparison themselves. Would it not be the duty of the court to charge the propositions so requested? Clearly, it would.

This illustrates precisely what power and duty is imposed upon the court by this statute — merely to pass upon the genuineness of the- proposed standards, for the purpose' of applying a rule of evidence, of saying whether certain evidence shall be submitted-to the jury, not to determine what force or effect shall be given to such evidence by the jury when it is before them.

*85The jury are in the end the sole judges of the facts, including the question of genuineness of writings already passed upon by the court in admitting the evidence..

Upon a trial the court, that is, the presiding judge, passes upon and decides as to the admissibility of all evidence, and the question under this statute comes within this rule. The grand jury has no presiding judge, and, in the orderly conduct of its proceedings, the jury itself passes upon the admissibility of all evidence presented before it. Eight or wrong, its decision *goes,*and the evidence it decides proper is received. To this extent it decides all questions of law, as well as fact, in determining whether an indictment shall be found. It is not a law unto itself. Its decisions may be reviewed, as is being done here, but like a presiding judge on a trial, the jury itself rules for the time being, and its ruling controls.

In analogy to its power and duty with reference to the admissi.bility'of other evidence, why may the jury not determine the question under this statute whether the writings presented as proposed standards for compárison are genuine? What harm is done? Is not the liability to harm less in this case than where a presiding judge has passed upon the question before the jury? The whole responsibility for this finding of fact before the grand jury is thrown upon the jury itself, without any interference by the presiding judge, not only to determine the fact as one in the case, but also as bearing upon the question of the admissibility of the evidence.

A reasonable construction should be given to this statute, not a forced and unnatural one. If this species of evidence is valuable upon trials in open court, as it surely is, why should the rule not extend to any proceeding, civil or criminal, where evidence of any kind is to be taken? Can it be possible the legislature provided for a species of evidence upon the trial of a person for a crime, and yet intended to prevent the using of'the same species of evidence before a grand jury, to enable them to say whether the person should be put upon trial at all? It seems to me, not. Moreover, this species of evidence is coming to be regarded as of greater value than the evidence of persons who speak alone from their own personal knowledge of the handwriting of others. I do not refer so much to the mere opinion of experts based upon' comparison, as to the reasons they may give for such opinions'— the similarity of letters and details of the writings which they may point out to the jury, and which the jury, though not experts, *86may. be able'to see for themselves, and especially the right of the jury to examine and compare the writings for themselves;, aided and assisted it may be by the suggestions of the witnesses ■ who have ■ themselves; made comparisons and pointed out details in their work which the jury can themselves appreciate.

In a case of this kind where someone has prepared a bottle of poison, and addressed it to ■ another, and has deposited it in the post-office, and death'has resulted from taking the poison; where' the'person preparing, and sending the poison has. done his work, when and where no human eye.looked on to see him do it, and. when no confession is made by anyone, it is of the utmost importance that there should, if possible; be an' identification of the handwriting'of the address upon the poison package. Will it'be claimed that the .species of. evidence provided for by this statute, the comparison of handwritings, may be used upon the trial' of a person for such crime, but the'grand jury' may not use the same evidence with; a "view to saying whether the- person shall be put upon his trial? Suppose no other species of proof of handwriting is- obtainable, sufficient to indict or convict, and that this species of evidence with other evidence the People can produce is sufficient to’ convict on á: trial, must a .person escape- punishment for his crime, because this evidence is not admissible before a'grand-jury, ■ and therefore no indictment Can be found? I am not aware that this question has been passed-upon in this state, Some other court may hold such evidence not'admissible before ;a grand jury. I cannot do so. My opinion is that' this statute makes this species of. evidence competent and proper before-grand juries the same ■as before a trial court. • ‘ • '

The first - evidence as to handwritings given before the jury, was that as to Exhibits E 1, to Z 1, and A 2.to E 2., which we may call the *first*series.' These were claimed to be the genuine handwriting of defendant. '

They-were sufficiently shown to' be such h>y the evidence of Ennsley. He had seen some of them written, and had knowledge of defendant’s-handwriting, from seeing him write, so as to be competent to speak on the subject. McKay v. Lasher, 121 N. Y. 482. There seems to be no serious contention but that these .' exhibits were the defendant’s genuine handwriting. They were, it -may be assumed, received by the jury Us standards for comparison-under the statutes of 1880 and 1888; and if the jury were .satisfied that they were genuine, and we! may assume that they were' so satisfied, they were properly so received.

*87The next evidence was as to the Exhibits I 2 to S 2, which we may call the *second*series. These exhibits must be regarded as disputed handwritings. They certainly went before the jury as such. They did not purport to be written by the defendant, but by Cornish and Bárnett. They were claimed to be forgeries, and to have been written by the defendant, but no evidence was given as to their being the genuine writings of the defendant, except by comparison with the standards, already received, the *first*series of exhibits. Such proof of the *second*series having been made, these exhibits were received by the jury. Then both series- of exhibits were used by the witnesses as standards for comparison with the disputed handwriting of the address on the poison package, and this latter writing was then received. The-jury, had before them the two series of exhibits and the address on the poison package, and we assume compared all these writings, for the purpose of arriving at a conclusion as to defendant, having written the address on the poison package. It is" claimed the second series of exhibits was improperly before the jury for any purpose: First. That they could not be used as standards for comparison with the address on the poison package, because they were themselves disputed writings, and only proved by comparison with the •first series of exhibits. In other words, they could not be presented and used at the same time as standards and disputed writings under the statute.

Second. That they were not competent or proper for any other purpose than as standards for comparisons of handwritings; that they were not material upon any other issue.

I do not see how it can be claimed these exhibits were competent or proper .for any other purpose than as standards for comparison with the address on the poison package. There was no proof given to show that the Cornish exhibits were sent through the mail, or received by anyone. If such evidence had been given it' might be claimed that they were competent on the question of motive as showing the relations between the defendant and Cornish, that defendant had assumed his name, forged his name to letters, etc.; but proof was not made giving rise to any such theory. The Barnett exhibits certainly were immaterial upon any such issue in. the case. The causing of the death of Mrs. Adams and the death of Barnett, if murders, were separate and distinct crimes, and if both were committed by the same person, still proof as to the one crime could not be given on the trial for the other. *88I can conceive of no theory upon which the Barnett exhibits were properly before the jury except as standards for comparison with the real disputed writing, the address upon the poison package.

I do. not see how it can be said that this *second*series of exhibits, was properly received, or used by the witnesses, or by the jury itself, as standards for comparison with the address on the poison package. They were, when presented to the jury, disputéd writings, were treated as such, and were not attempted to be proved as the writing of defendant, except under the statutes of 1880- and 1888, ' by comparison with the first series of exhibits. They could not be. made standards under the statute by this kind of proof. The witnesses. and jury were comparing one disputed writing with a lot of other disputed writings, for the' purpose of fastening the first disputed writing upon the defendant. ' This could not be done. Clark v. Douglass, 5 App. Div. 547. Parker, J., says: *“*Here, then, is a case where there is as much doubt about the genuineness of the standards .as there is about the genuineness of the indorsements; yet * * * they (the standards) are received by the court as genuine, and the jury are practically told that if the indorsements Were written by the same hand that wrote the standards they are the genuine indorsements' * * * .” • There, was the same doubt as to this second series of exhibits, as to the address on the poison package; both were disputed writings. Neither could be.used as a standard. It might as well be said the address on the poison package was a standard as the second series of exhibits. In fact neither could be received and considered as standards under the statutes of 1880 and 1888. This second series of exhibits was, therefore, improperly before the jury. They were other than legal evidence.

There was,other improper evidence given before the jury, .but none that is of such importance as to call for special mention. Hone of it Would be sufficient to require the court to discharge -the indictment. The species of-evidence above referred to is, however, more troublesome, and the court can hardly disregard it, or say it was of so little importance as not to have influenced the jury to indict, when they would not have so determined had these pieces of evidence been omitted. An indictment could not well have been found, unless the jury were convinced that' the writing of the address upon the poison package was the defendant’s. The - evidence showed that a crime had been committed. The real question before the jury was, did the defendant commit *89it? Someone did it. Defendant was a chemist, or had some knowledge of chemistry. He had unpleasant relations with Cornish, and, apparently, no one else had. Some other things may have appeared before the jury which I do not recall, and then it was claimed that the handwriting upon the poison package was the defendant’s. Upon such proof the court could not say the jury should not indict. An indictment upon such proof would not be discharged, as found upon inadequate evidence. But the controlling fact would be the defendant’s handwriting upon the poison package. That was in dispute, and, considering the great importance of that issue, the grand jury and the district attorney’s office should have been careful as to the evidence received, considered and acted upon by the jury.

This second series of exhibits was improperly before the jury. They entered into the comparisons made by the witnesses, and, we must assume, by the jury, and the jury must have been more or less influenced by these exhibits in such comparisons.

In addition to this the matter contained in the exhibits was such as would almost certainly influence the minds of the jury against the defendant. If those exhibits were written by him, then the jury would naturally believe he had been assuming the. names of Cornish and Barnett, forging their signatures to letters, etc., and as to Barnett filling the letters with matter tending to show the defendant to be a man not only of dishonest but low, filthy instincts. These Barnett letters were also entirely improper, as tending to show defendant’s connection with the alleged murder of Barnett, as .well as with that of Mrs. Adams; and the jury-might well have been influenced by the suggestion growing out of the letters that he was guilty of that murder as well as of the one being investigated.

It seems to me, under all the circumstances, I cannot do otherwise than discharge this indictment.

The defendant is entitled to have his case investigated, upon legal evidence and no other. The People may present the case to another grand jury, being careful to use only legal evidence, and then the determination of the grand jury will be binding upon everyone. If another indictment is found the defendant will have to stand his trial. If he is not indicted, he will be entitled to a discharge from custody.

An order will, therefore, be prepared and presented for signature, discharging the indictment, on the ground that other than *90legal evidence was received and considered by the grand jury, and directing that the case be resubmitted to the grand jury now sitting, or to the next grand jury that shall sit, in the county of New York. - ' . ■

Ordered accordingly.