Supreme Court—General Term—First Department.

*'September,*1887.

#### PEOPLE v. SHARP.

Bbibeby—Accomplice who has committed pebjuey—Corroboration—Motive—Acts of co-conspibatobs—Incidentally proving other offense—Definition of “ Investigation—“ Penal Code, §§ 69, 79.—Testimony of witness before Legislative Committee. —Evidence—Code of Cbim. Pboc , § 542.

The testimony of a witness cannot be excluded from the consideration of the jury because he has sworn wilfully falsely concerning the same subject on a preceding examination. (Page 486.)

Upon a trial for bribery an accomplice, having testified that he had received as a bribe a large sum in bills of large denominations, to corroborate such accomplice, evidence of other witnesses, that he had at the time specified in bis possession, bills of those denominations, is admissible. (Page 439.)

Upon such trial, one F., an accomplice, testified that there was a scheme to bribe him, and as part of the same scheme, certain other Aldermen were also to be bribed by large sums. *Held,*that evidence of the possession by those Aldermen of large sums in bills of the denominations which at that time passed from the possession of defendant and his confederates, and the disposition of which was not accounted for, is admissible to corroborate the evidence of the accomplice. (Page 445.)

A public official who votes for a resolution from a sense of duty and to promote the interests of the public, but is also influenced in his vote by the promise and expectation of money to be paid therefor, is guilty of agreeing to receive a bribe. (Page 447.)

Upon a trial for bribing a certain public officer, where the circumstances are such as to point directly to the strong probability that the charge was truthfully made, the fact that the amount demanded as a bribe was precisely the same as that of the proceeds of the sale of certain securities by the party alleged to have offered the bribe, and not accounted for, has a strong tendency to prove the charge. (Page 473.)

Where a witness, an accomplice, was asked whether he, for money, at a certain time, made any agreement or promise to vote in favor of a railroad’s petition, the objection that the witness was asked to give his conclusion as to whether in fact an offense had or had not been committed, and that the question should be directed to some specific conversation or transaction, and that it should be first shown whether the con*389versation or transaction was had with the defendant or some other person, is of no avail where the witness was afterwards examined both on the part of the prosecution and the defense minutely as to what was said and done in regard to the alleged offense. (Page 448.)

Direct evidence that one F., an alderman, had entered into the agreement stated to have been made with him, to vote in the manner in which he did, is so far evidence against the defendant charged with bribing said alderman indirectly in that it tends to make out one of the grounds upon which the indictment rested. (Page 449.)

To establish the motive of a public officer in corruptly voting for a resolution, evidence is admissible to show that he was informed prior to his vote that the money with which he was to be bribed had been put in such a position as to be accessible to him after the giving of the vote. (Page 449.)

Where parties are acting in concert in a conspiracy, their acts and admissions are evidence against any one of their number.

Evidence is admissible upon a trial for bribery, which has a plain tendency to prove the efforts and great eagerness of defendant for the passage of a law which would enable him to acquire the franchise, for the corruptly obtaining which he was on trial. It tends to prove the fact of his interest and desire, and the state of mind by which he was influenced.

The court is bound to receive any fact or circumstance tending to sustain the probability of the truth of an accomplice’s evidence.

Upon the subject of motive or intent, other transactions, tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and restricted as to leave the jury only at liberty to use it to discover the motive or intent actuating the accused in the act for which he is on trial.

Evidence given by a witness without objection or claim of privilege on his part, and not acting under the mandate of a compulsory statute, at an investigation by a legislative committee which was not a proceeding against any person, but whose object was to discover facts which might lead to legislative action, may be used against him on a criminal trial. (Page 456.)

The provision of the State Constitution of 1875, that a person offering a bribe shall not upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto, does not apply where the witness denies the fact of his offering the bribe.

The word “ investigation,” as used in section 79 of the Penal Code, relates exclusively to judicial proceedings : *e. g.,*before a committing magistrate, or a grand jury, or in court. (Pages 460.)

The obligation created by the Penal Code requiring a person to testify as to bribery, is to testify, not against himself, but against another person in a legal proceeding by way of a trial, hearing, proceeding, or investigation of that specific charge against that person. (Page 461.)

These provisions of section 79 of the Penal Code do not extend to legislative investigations.

*390Section 69 of tlie Penal Code applying, to and, including legislative investigations, does not require a person to answer questions criminating himself or having a tendency to produce that effect, or exempt him from use of his answers in a future criminal proceeding.

A refusal to answer a question, which may elicit evidence tending to establish a criminal charge against the witness, is not a refusal to answer any material or proper question within the meaning of section 69 of the Penal Code. (Page 464.)

To oblige a witness to testify, when his testimony may have a tendency to criminate himself, it is requisite that the law imposing the obligation shall at the same time provide that his evidence shall not be afterwards used against him.

A mere expression of a supposition of a witness as to the reason for the existence of a fact, where all the evidence in regard to that fact is before the jury, while it is erroneously admitted, is not ground for reversal of a judgment, where the transaction referred to was so clearly'explained that there could be no mistake or misapprehension on the part of the jury as to the fact.

Evidence of the absence of persons implicated in the same offence as defendant, when not offered to show the flight of such persons, but only to explain why they were not called as witnesses by the prosecution, is competent.

Where one party offers testimony upon a subject, he cannot object to additional evidence upon the same subject by the opposite party.

The prosecution was permitted to show by the books of the company, of " which the defendant was one of the directors and controllers, that the sum of five hundred thousand dollars raised by virtue of a resolution of ' said company, was not in fact expended as directed by that resolution, and that no satisfactory explanation of its expenditure was given. This sum was the money claimed by the prosecution to have been used in the bribery for which defendant was indicted. *Held,*that the evidence was competent, in that the absence of a truthful statement of the use of the money raised was proper to be introduced into the case to support the theory of the prosecution.

The Mayor was allowed to state under objection the considerations influencing him in writing his message vetoing the resolution of the Aldermen, granting the franchise to the defendants’ railroad. *Held,*that as what witness said was entirely harmless and added nothing to what was apparent on the face of the message itself, the reception of his evidence was not error.

An objection to a charge that an offer to bribe might be made by agents, on the ground there was no evidence in the case of any agency, is of no avail where it is evident that the agents referred to were principals in a corrupt transaction, each one being in that transaction agent of the others.

An appeal from an order denying a motion to set aside an indictment, cannot be taken.

A charge that there are but two questions in the case, whether the crime has *391been committed and who committed it, is not error when such a division was merely a formal one, made to bring the leading attributes of the accusation as they were required to be proved, before the minds of the jury.

Upon the trial of defendant for bribing a public officer, the record of that officer’s official action upon the matter in regard to which he is alleged to have been bribed, including his official acts and votes in regard thereto, is admissible for the consideration of the jury to determine whether that official’s action was in pursuance of a corrupt agreement.

A charge to the jury that it is not safe to convict defendant upon the testimony of an accomplice who admits having previously committed perjury in regard to the same matter, unless that accomplice is fully corroborated, and that the jury may in their discretion, entirely reject his testimony, is not error.

General observations in the charge of the trial judge as to the character, enormity and disastrous effects of the crime with which the prisoner is charged are not error, when the jury are restricted by the charge to a consideration of the facts alone, in arriving at a verdict.

The defendant cannot complain of the impaneling of a juror against whom he does not exercise an available right of peremptory challenge, which challenge remains unused when the jury are sworn. (Per Tab Bkubt, J.)

The weakness of evidence forms no ground for its exclusion. It only limits the influence which it should have upon the jury. (Per Tab Bbtjht, J.)

A mere technical error in the reception or exclusion of evidence which does not violate a substantial right of, or withhold a substantial benefit from, defendant must be disregarded on appeal. (Code Grim. Proc., § 512.) (Per Beady, J.)

Appeal by the defendant Jacob Sharp from a judgment of the Court of Oyer and Terminer of New York County, of July 14, 1887, entered upon a verdict after a trial, Hon. Geo. C. Babbett presiding, convicting him of the crime of bribery.

The indictment, which was found October 19,1886, was as follows:

“ The grand jury of the City and County of New York, by this' indictment accuse Jacob Sharp, James A. Richmond, •James W. Foshay, Thomas B. Kerr, John Keenan, Robert E. DeLacey and William H. Maloney, of the crime of bribery, committed as follows:

Heretofore, to wit: on the thirtieth day of August, in the year of our Lord one thousand eight hundred and eighty-four, at the city of New York, in the county of New York, aforesaid, a certain petition and application of the Broadway Sur*392face Railroad Company, a corporation duly organized and incorporated under and by virtue of the Laws of the State o£ New York, before then duly made and presented to the Common Council of the City of New York, praying and making application to the said Common Council for its consent and permission to construct, maintain, operate and use a street surface railroad for public use in the conveyance of persons and property in cars upon and along the surface of certain streets, avenues and highways in the said city, together with the necessary connections, switches, turnouts, turntables, sidings and suitable stands for the convenient working-of the said road, was duly pending before and under the. consideration of the said common council. And the said petition and application having been so as aforesaid made and presented to the said common council, and being so pending and under its consideration as aforesaid, the said Jacob Sharp, James A. Richmond, James W. Foshay, Thomas B. Kerr, John Keenan, Robert E. De Lacey and William II. Moloney, all late of the city and county of New York, aforesaid, well knowing the premises afterwards, to wit: on the said thirtieth day of August, in the year aforesaid, and whilst the said petition and application was yet pending before and under the consideration of the said common council, at the city and county aforesaid, with force and arms, unlawfully, wickedly and corruptly, did feloniously give and offer, and cause to be given and offered, to one Ludolph A. Fullgraff, who was then and there a public officer, and a person executing the functions of a public office, to wit, an alderman and member of the board of alderman of the city of New York, and as such being then and there a member of the common council aforesaid, the sum of twenty thousand dollars in money and a promise and agreement therefor, with intent in so doing to influence him, the said Ludolph A. Fullgraff, in respect, to his acts, vote and proceeding, in the exercise of his powers and functions as such member of the common council aforesaid, upon and concerning the said petition and application of the said Broadway Surface Railroad Company, so pending before *393and under the consideration of the said common council as aforesaid, so that the acts, vote and proceeding of the said Ludolph A. Fullgraff as such member of the common council aforesaid, upon and concerning the said petition and application, should be in favor of the granting and giving by the said common council of the consent and permission so as aforesaid in and by the said petition and application prayed and applied for; against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.”

The evidence may appropriately be divided into two classes.*

The first class was in relation to the *corpus*delicti, as set forth in the indictment, *i. e.*whether or not Ludolph A. Fullgraff, the Alderman named in the indictment, had been bribed by some person or persons to vote for the petition of the Broadway Surface Railroad Company.

To maintain this part of the general issue, the prosecution called Ludolph A. Fullgraff as a witness, and proceeded to prove by the bribed official himself that the crime of bribery charged in the indictment had been committed.

Fullgraff, the Alderman named in the indictment, testified that he held the office of Alderman in the City of New York in the year 1884, and to the following facts:

In the month of June of that year thirteen members of the Board of Alderman were assembled together in the parlor of' the house of Alderman McLaughlin, one of their number, at No. 454 West Thirty-fourth street, in the City of New York. They had come together in pursuance of an understanding-made between them. At this meeting Alderman Jaehne said to the assembled Aldermen that the Cable road offered $750,-000, one-half cash and one-half bonds, for the consent and permission of the Board of Aldermen to operate a railroad on *394Broadway, and the Broadway Surface Railroad Company offered $500,000 for the said consent and permission, all in cash.

A discussion as to the merits of these respective propositions •ensued. Jaehne then suggested that it would be unsafe to accept the offer of the Cable road, because the bonds which they offered could easily be traced. The discussion being over, all present agreed by a unanimous vote to accept the offer of the Broadway Surface Railroad Company for their votes.

The amount to come to each Alderman was then considered. After making allowance for other members of the Board whose votes it might be necessary to procure in case the Mayor vetoed the ordinance, it was finally resolved that each one of the thirteen present should receive $22,000. The meeting then adjourned, the Aldermen dropping out of the house in squads of two and three at a time in •order to avoid suspicion.

At the next meeting, a week or ten days later, twelve of the same persons being present, a discussion took place as to who should hold the sum of $500,000, pending the passage of the measure through the Board of Aldermen. Alderman McCabe suggested William Moloney, the Reading Clerk. Alderman Duffy, at the instigation of Alderman De Lacy, nominated John Keenan, recommending him as a man of probity who could be relied upon to make the agreed distribution of the funds. After some debate it was finally agreed by the unanimous vote of those present, that Keenan should act as stakeholder. But De Lacy informed the others that Keenan would not act in that capacity unless each one of the Aldermen present went to him and assured him that it was all right. That they all agreed to do. Soon after, Fullgraff went to the County Clerk’s office in this city, where in an inner room he found Keenan. He said to him, “ I am Alderman Fullgraff, Mr. Keenan, and that is all right,” to which Mr. Keenan replied “ All right,” and Fullgraff went out.

*395Before adjourning this second meeting at McLaughlin’s house, it was agreed that Moloney, should act as the agent of the combination in procuring the votes of as many of the other members of the Board of Aldermen not in the combination as might be necessary to pass the franchise over any veto which might be interposed by the Mayor.

At the next meeting in McLaughlin’s house, in the month of August, 1884, it was agreed among the thirteen there and then assembled to reduce the amount coming to each Aider-man from $22,000 to $20,000, in view of the expenditure, larger than had been anticipated, which had been made for the votes of those members of the Board of Aldermen who were not in the combination, but whose votes were necessary to enable it to pass the franchise over the Mayor's veto.

The last meeting of the combination at the house of McLaughlin was in the month of October, 1884. It was there agreed to reduce the amount coming to each member from $20,000 to $18,000; and some of the members asking for money, it was agreed to pay $5,000 on account to all those who expected to run for office in the then approaching election.

Alderman Fullgraff testified that shortly after that he received $5,000 in cash from De Lacy, and that subsequently, in the month of January, 1885, after the measure was passed, he received $5,000 more, making in all the sum of $10,000. The money was paid to him in bills of the denomination of one thousand, five hundred, and one hundred. There were six or seven one-thousand-dollar bills. Fullgraff loaned $8,-000 of his money to Mr. Carnrich, a friend of his, doing business in Fulton street, and received Reid & Carnrich’s note in exchange for the same.

On cross-examination, Fullgraff testified that in voting for the petition of the Broadway Surface Railroad Company he acted upon his conviction that the public interests required him to vote as he did. But on his re-direct examination he swore that in voting dor the petition of the Broadway Surface road he was influenced by two considerations—one, be*396cause he considered the road a desirable improvement, and. another, because he had been promised a large sum of money to vote for its petition.

On cross-examination Fullgraff admitted that he had been examined before a committee of the Senate of the State of Mew York, and, under oath, had denied any knowledge of bribery or corruption in the Board of Aldermen of 1884 in reference to the Broadway Surface Railroad Company ; and he admitted that such denials were false and untrue, and that he knew them to be false at the time when he made them.

On his re-direct examination he testified that he never made a confession to the District Attorney until he learned that Alderman Duffy, another member of the combination, had confessed, and that, then seeing no alternative except confession or prison, he had yielded to the solicitations of his wife and children and made a clean breast of it. Fullgraff also testified that he did not know the defendant Sharp, had never had any transaction with him, and. in fact had never seen him until ke saw kim in court.

To support the testimony of this witness, the prosecution next called Thomas B. Brown, who testified that he was bookkeeper for Reed & Carnrich in the month of February, 1885, and that in that month he received from Alderman Fulgraff, $8,000, mostly in $1,000 bills and that he gave Fullgraff, Reed & Carnrichs’ note, dated February, 5, 1885, and due one year from eate.

The second class of evidence is as to the criminal complicity of Sharp, the defendant, with the commission of the crime charged.

The prosecution adduced evidence to show that in the summer of 1884 a conspiracy was entered into between the persons named in the indictment, namely, Sharp, Foshay, Kerr, Richmond, Keenan, Moloney, and DeLacy, to procure from the board of aldermen in the city of Me w York a. franchise for a road on Broadway, by bribing as many members of the board as might be necessary for the purpose of *397obtaining the franchise. It further adduced evidence that the defendant was a member of that conspiracy, and its author and creator, and that Alderman Fullgraff was bribed in pursuance of that conspiracy.

The prosecution began by adducing evidence to show the enormous interest that the defendant Sharp had in the project of the building of a railroad on Broadway, and that the acquisition of Broadway for the purposes of a surface railroad controlled by himself, had been the passion ■ of his lifetime, and that he had been pursuing the project for over thirty years.

Daniel D. Conover testified that thirty years prior to 1884 he was associated with the defendant Sharp in a scheme for building a surface railroad on Broadway, and that they pursued it until beaten off by the Court of Appeals.

William L. Pottle, who, in 1883, was the Engrossing Clerk in the Assembly, testified to a corrupt proposal by Sharp to surreptitiously insert a clause authorizing the construction of a railroad on Broadway in the General Surface Railroad Act of that year.

Francis L. Stetson testified that in the year 1883, on the retainer of the defendant Sharp, he performed professional services for him in reference to the general surface railroad act of that year; that he proceeded to Albany and made an argument before the Assembly Committee in favor of including Broadway, and striking out from the proposed bill the clause excluding it. The bill having passed with the clause excluding Broadway in it, Mr. Stetson, on the retainer of Mr. Sharp, procured the Governor of the State of New York to veto the bill, and promised to return to Albany the next year with a form of 'a general surface railroad act. Upon the retainer of Mr. Sharp, in December, 1883, he drew a form of a general surface railroad act, took it to Albany and submitted it to the Governor who referred it to the Railroad Committee. The Railroad Committee prepared a bill, of which Mr. Stetson’s bill was the basis. It was introduced in the Legislature, passed both houses, received the approval of the Governor, and is now known as chapter 252 of the Laws of 1884.

*398Edward R. Phelps testified that he spent the winter of 1884 in Albany; that he was there to oppose any general surface railroad act which did not satisfy. the views of his. friends; that Mr. Sharp was there, as he had been in 1883,, for the purpose of passing a general railroad act; that in 1883 the witness had opposed him and he was beaten; and that in 1884 Sharp came to him and asked his help in passing the bill. Sharp said, “ I want an act passed for the purpose of getting the Broadway Railroad.” Phelps said, “ I ought to be counted in on that.” Sharp replied, “.You shall be.” It was then agreed that Phelps should have an incorporator and a. director in the road, and that there should be nine directors. After the bill had passed, Phelps was notified to attend at Mr. Scribner’s office. He went there with his incorporator Samuel L. Pullen. He took up the articles of association and saw that his incorporator was not named as one of the-directors. He protested to Sharp, who told him that he did not know anything about it; whereupon he got. disgusted and left the room. But when, in the summer of 1885, Sharp-had gotten the resolution passed through the Common Council, and built the road, he sent for the witness, met him at Mr. Scribner’s office, offered him. $50,000 for his interest,, which Phelps accepted.

On the 6th day of May, 1884, the General Surface Railroad Act became a law.

At that time there was a corporation in the City of New York known as the Broadway and Seventh Avenue Railroad Company, engaged in operating a surface railroad on Broadway, from Fifty-ninth street to Fourteenth street, and thence through Mercer and Greene streets to the Astor Hous.e. Of' that corporation the defendant Foshay was President and Kerr Treasurer. Foshay, Kerr, and the defendant Sharp-were its three influential directors. Sharp had been a director of the road from its organization in 1852. He owned 450 shares of its capital stock, Foshay owned 50 shares, and Kerr 500 shares personally, but controlled in all 2,000 shares, owned by the Kerr family.

*399At the same time there was another corporation in the city known as the Twenty-third Street Railroad Company, of which the defendant Sharp was the President, and in which he was a large stockholder.

Sharp, under the new law, organized a corporation for the purpose of constructing and operating a railroad on lower Broadway. The prosecution proceeded to show that thirteen persons provided by Sharp, Foshay, Kerr and Richmond signed the articles of incorporation and subscribed to the capital stock, and seven of these persons became directors-of- the corporation. None of the incorporators, except Richmond, who paid in $800 in cash to validate the incorporation, paid anything upon his subscription, or ever received any of the stock. The only certificate of stock ever issued by the company was one certificate for 9,250 shares to the defendant Jacob Sharp.

Out of the seven directors of the road, two were Sharp’s-lawyers, one his son-in-law, and another his private secretary. James A. Richmond, his associate in the enterprise, was another, while Bird and Pentz were the representatives in the Board, of Kerr and Foshay.

The directors were severally examined, and testified that in all their proceedings as directors they were acting as agents for Sharp and Ms associates, Foshay and Kerr.

Shortly after the organization of the company, the directors made an agreement with Sharp wherein he agreed to construct the railroad, for the construction and operation of which the company was organized, in consideration of the delivery to him of all the stock and all the bonds of the company; so that Sharp, by virtue of this contract, became the owner of all its securities.

The office of the Broadway Surface Railroad Company was in the office of Robinson, Scribner & Bright, 150 Broadway, the attorneys for the defendant Sharp and his corporations.

The Broadway Surface Railroad Company was incorporated on the 12th day of May, 1884.

On the 13th day of May, 1884, the directors of the Seventh *400Avenue road met at the office of the Company in Broadway, near Fifty-fifth street, and entered into a contract, prepared by Sharp’s lawyers, with the Broadway Surface Railroad Company. In substance, the contract provided that the Broadway and Seventh Avenue road and the Broadway Surface road should use in common the tracks that were to be built from Fifteenth street to the Bowling Green, the Broadway and Seventh Avenue road undertaking, in consideration of the common use of the tracks to be laid by the Broadway Surface road, to guarantee 1,125 bonds of the denomination of $1,000 of the Broadway Surface Railroad Company.

On the same day the Twenty-third Street Railroad Company entered into a similar agreement with the Broadway Surface Railroad Company for the use in common of its tracks, and obligated itself to guarantee 875 bonds of the denomination of $1,000 of the Broadway Surface Railroad Company.

On the 17th day of May, 1884, the directors of the Broadway Surface road passed a resolution authorizing an application to the General Term for the appointment of Commissioners in default of getting the consent of the property-owners upon Broadway for the construction of the road.

On the 21st day of May, 1884, the directors met and ratified the agreements with the Seventh Avenue and Twenty-third Street roads above referred to.

On the 7th day of June, 1884, the directors met and voted to issue one million and a half of bonds for the purpose of building, completing and equipping a road on Broadway, from Fifteenth street to the Bowling Green, a distance of three miles, and, as we have said, a few days later the directors made a contract with Sharp, whereby Sharp agreed to construct the road in consideration of all the bonds and all the stock of the company.

It was not claimed by the prosecution that the proceeds of this million and a half of bonds, or the proceeds of the million of the Second Mortgage Bonds, which were issued by the Broadway Surface Road, and delivered to Sharp in June, 1885, were devoted to the bribery of the Aldermen. Until *401the defendant Sharp had procured from the Board of Aider-men the franchise to build a road on Broadway, and, in addition, had obtained the consent of one-half the property-owners on Broadway, or in default thereof the consent of the General Term Commissioners, the bonds were of no value at all. They had, in fact, no value until' the month of June, 1885, when, the consent of the Aldermen and the consent of the Commissioners having been obtained, the road was actually built. The prosecution claimed that the proceeds were used for the purpose of concealing the guilty disposition of other sums, which in the meantime were raised in cash for the purpose of carrying out the corrupt agreement between the members of the Common Council on the one hand and the defendant Sharp and his associates on the other.

While these contracts were being drawn and executed and resolutions passed, the thirteen Aldermen, of whom the witness Fullgraff was one, were meeting at McLaughlin’s house and listening to the propositions, made through one of their number, by rival applicants for the franchise. Fullgraff testified that the Broadway Surface Railroad Company’s proposition of $500,000 in cash was accepted in the month of June 1884.

On the 23rd day of June, Alderman O’Connor introduced a resolution in the Board of Aldermen to the effect that the Broadway franchise, and- all other franchises, should be put up at public auction and sold to the highest bidder, in accordance with the provisions of section 7 of chapter 252 of the Laws of 1884. That section gave the Common Council power to put the franchise up at auction. O’Connor's resolution was referred to the Railroad Committee and was not heard of until the month of October, 1884. At that time Aider-man O’Connor insisted upon a report, and the Railroad Committee reported that it was inexpedient to put the franchise up at auction-.

On the 30th day of June, 1884, The Broadway Surface Railroad Company filed its petition to the Board of Aider-men, asking for their consent to construct and operate a road *402on Broadway, and in accordance with the usage of the Board the petition was referred to the Railroad Committee. The statute required "that before action could be taken upon the petition, a notice of a hearing should be advertised for two weeks in the daily papers of the city. By an advertisement soon afterwards inserted, the 5th day of August, 1884, was fixed as the day on which the Railroad Committee would hear arguments for or against the petition.

The prosecution did not claim that Sharp or Foshay or Kerr, singly or together, furnished the money which was to be put up before 5th August, 1884, out of their individual funds. To show where the money came from, the prosecution points to the following facts:

In the month of July, 1884, daily conferences were taking place at the office of Robinson, Scribner & Bright between Sharp, Foshay, Kerr and Richmond. Mr. Bright testified that they were together on the 16th day of July, and that he had a consultation with Sharp, Foshay and Richmond on that day; that Sharp and Foshay were in consultation with him on the 18th day of July; that Sharp was in consultation with him alone on the 19th day of July; that Richmond, Foshay and Sharp were in consultation with him on the 21st day of July; that Sharp, Foshay and Richmond were in consultation with him on the 23rd day of July; also on the 24th; that they were constantly in consultation together on all of these days at his office, although he was not conferring with them; that on the 30th day of July, 1884, Sharp, Foshay and Richmond were present in consultation at his office ; that on the first day of August, 1884, Sharp, Foshay and Richmond were in consultation at his office ; that on Saturday, the 2nd day of August, he had no recollection of their presence; that on Monday, the 4th day of August, Sharp, Foshay and Richmond were in consultation together at his office.

William Donovan testified that he was employed in the summer of 1884 to run the elevator in the building, 150 Broadway; that frequently during the summer of 1884 he saw_ *403Sharp, Foshay, Richmond, Kerr, Maloney and Disbecker together in that building; that he took them up and down in the elevator together ; that their association was so frequent that he could not remember the times when he conveyed them up and down stairs; that often they stayed there together so late in the evening that he had to make an extra trip to take them down.

Robert E. Dowling, who, in the summer of 1884, was assistant cashier in the office of Robinson, Scribner & Bright, testified that Sharp, Foshay, Kerr, Maloney and Disbecker were constantly together in the offices of the firm.

On the 19th day of June, 1884, the defendant Foshay, carrying in his hand a form of second mortgage bond of the Broadway and Seventh Avenue Railroad Company of the denomination of $1,000, proceeded to the office of Siebert Brothers, lithographers and engravers, in Warren street. The form of this bond was prepared in the office of Robinson, Scribner and Bright. Foshay asked Siebert how quickly he could print five hundred bonds ; Siebert told him it would take him ten days to do it. Foshay said “ that wouldn’t do,” that he must have it in six days, and finally Siebert agreed to print the bonds for him in seven days.

Three days afterwards, on the 22nd day of July, 1884, the directors of the Seventh Avenue road, among whom were the defendants Sharp, Foshay and Kerr, assembled at the office of the railroad in Broadway, near Fiftieth street. One of the defendants had a resolution, which had been prepared at the office of Robinson, Scribner & Bright. As soon as the board had assembled, the resolution was adopted. It was as follows:

“ Resolved, That this board approves and ratifies the contract executed by the President of this Company and the President of the Broadway Surface Company, bearing date the 17th day of May, 1884, and

“ Whereas, for the purpose of carrying into effect the said contract, it will be necessary to purchase lands, enlarge its depot, and extend its facilities, *404“ Resolved, That this company do make and issue bonds, under its corporate seal, for the aggregate amount of five hundred thousand dollars, which shall be of the denomination of one thousand dollars each.

“ And that for the purpose of carrying into effect the said contract the President and the Treasurer are authorized to negotiate the one hundred and fifty bonds in the treasury of the company, being part of the issue of one thousand and five hundred, which were the first mortgage bonds of the Seventh Avenue company, bearing date the 1st day of June, 1883.”

This resolution authorized the President and Treasurer to spend $650,000 in bonds for the purpose of raising $500,000 in cash. Siebert lithographed the bonds within seven days, delivered them at the office of the Broadway and Seventh Avenue road, and Foshay and Kerr proceeded to convert them into cash. They applied to Prentiss, a dealer in miscellaneous securities, having an office on the corner of William and Wall streets. They told Prentiss that for the purpose of disposing of them quickly they were willing to sell them with a bonus of ten of the first mortgage bonds for every one hundred of the second mortgage bonds ; that is, $110,000 for $100,000. Prentiss told them that if he could have a reasonable time to dispose of the bonds in small lots he would have no difficulty in selling them at par. But they told him they wanted the money at once, and could give but him a limited time in which to place them. Thereupon Prentiss tried to dispose of the bonds on the terms given, but was unsuccessful. Foshay and Kerr then raised the bonus, and authorized Prentiss to sell them with fifteen first mortgage bonds for every one hundred of the second; that is, $115,000 for every $100,000. At this price Prentiss was able to dispose of a large number of the bonds. The balance of the issue was sold off by Foshay and Kerr to persons interested in the securities of the road. The bonds were all placed in the last week in July, and Saturday, the 2d day of August, was fixed for their delivery at the office of Prentiss, in Wall street. ,r On that day different purchasers appeared at the office with *405certified checks on responsible banks. But cash was demanded? and where cash could not be obtained the checks were immediately converted into bills.

In this way, by the 4th of August, 1884, the sum of five hundred thousand ($500,000) dollars, in bills of denominations running from one hundred to ten thousand, was raised by Foshay and Kerr.

On Tuesday, the 5th day of August, 1884, the Railroad Committee of the Board of Aldermen had their first meeting. The meeting was a brief one. While they were in session the defendant Sharp remained in the office of Robinson, Scribner & Bright. The defendant, Richmond, sat in the Aldermanic Chamber, while Bright argued the claims of tire Broadway Surface Railroad Company to the committee.

While the committee was in session, and before the opponents of the measure had been heard, the defendant Sharp handed to Robert Dowling a clerk in the office of Robinson, Scribner & Bright, an envelope containing the report of the committee, and the resolutions annexed thereto, granting the franchise to his railroad. When handing these resolutions to Dowling, Sharp told him to take the envelope up to Richmond in the Aldermanic Chamber, and not to let any one see it. Dowling proceeded to the Aldermanic Chamber, found Richmond, and handed him the paper, *saying:*“ Mr. Sharp sent this to you.” Mr. Richmond replied : “ What the h—1 did he send that to me here where every one can see me ? Take it to Moloney in the next room.” Dowling took the papers in to Moloney who put the envelope in his pocket. That afternoon, before 5 o’clock, the report was signed by all of the Railroad Committee except Miller, who signed it the next morning. Waite, in particular, one of the committee recollects signing it that afternoon, because he took the evening boat to New London where he was then keeping a hotel.

On the next day, the 6th August, 1884, the Board of Aldermen passed the resolutions granting the franchise to the Broadway Surface Railroad Company without debate and without requiring any compensation to the city except that *406demanded by the statute of 1884 itself. The act of 1884 provided that any corporation obtaining a franchise for a street railroad should pay into the treasury of the city three per cent, on the gross earnings of the road for the first five years after it began to be operated, and five per cent, on its gross earnings for the next five years thereafter. The prosecution claimed that the evidence in the case showed that at the time when the Aldermen granted the franchise to the Broadway Surface Railroad Company, it was possible to procure for the city a very large sum of money in addition to the statutory percentages. -

Before the vote upon the 6th of August, 1884, was taken, Fullgraff was informed by De Lacy that the five hundred thousand dollars was in fact put up.

In accordance with the provisions of the charter, the resolutions passed by the Board of Aldermen upon the 6th of August, 1884, were sent to the Mayor for approval or disapproval ; and upon the 58th day of August,- 1884, the Mayor returned the resolutions to the Board of Aldermen without his approval, and with a veto message, in which he said he was convinced that one million dollars could be obtained for the franchise and to that to give it to the Broadway Surface Railroad upon the percentages required by the act of 1884, when it was manifest that one million dollars could be obtained for it, was equivalent to giving to the defendant and his associates, of property of the City of Hew York, of at least one million dollars.

Under the charter, no action could be taken upon the vetoed resolutions until the tenth day after receipt, to wit, the 29th day of August, 1884; and if action were taken at all, the same provisions of the charter required it to be taken within five days thereafter, namely, by the 3d day of September, 1884.

While the vetoed resolutions were lying upon the table awaiting the elapse of the ten days, the defendant Sharp met in the Fifth Avenue Hotel one George V. Powell, who had heretofore been employed as a canvasser to get the consent of *407-the property owners on Broadway to the construction of the road. Powell had been in the habit of frequenting the office of Robinson, Scribner & Bright almost daily during the summer of 1884, and had'constantly observed Foshay, Kerr and Moloney in conference together. On the evening in question he went into the Fifth Avenue Hotel and found Sharp apparently waiting for Foshay. Powell referred to the veto message of the Mayor, and asked Sharp what he was going to do about it. Sharp replied in substance that he had “ fixed” the Board, and that he thought the Board would pass the resolutions over the veto. *

On the 25th day of August, 1884, the Board of Aldermen assembled, and while they were in session an injunction was served upon, them in a suit brought on by one Lyddy against Kirk and other members of the Board of Aider-men, restraining them from taking any action in granting the franchise to the Broadway Surface Railroad Company. In that suit the Board of Aldermen alone were the defendants. The Broadway Surface Railroad Company was not a party. Immediately upon the receipt of the papers they were sent to the Corporation Counsel, as the legal adviser of the Board of Aldermen. Mr. Alexander, of the firm of Alexander & Green, retained by the Broadway Surface Railroad •Company, proceeded to negotiate a settlement of the suit with Lyddy. In that negotiation several days were consumed, but finally, on the 29th day of August, 1884, a settlement was arrived at. During the 27th, 28th and 29th of August, 1884, the defendant Sharp and his associates, Foshay, Kerr and Richmond, were constantly in the office of Robinson, Scribner & Bright in consultations together, or with their attorneys. These negotiations were carried on without the knowledge ■of the Corporation Counsel of the City, who was preparing to argue the injunction on the return day of the order to show cause, to wit: the 1st day of September, 1884.

*408At one o clock on the afternoon of the 29th clay of August, 1884, the suit was settled. At that time, Lyddy gave to Alexander & Green a consent to the discontinuance of the suit and to a vacation of the injunction order, receiving from Mr. Alexander twelve thousand five hundred ($12,500) dollars in cash, which Alexander & Green had received from Richmond, the President of the Broadway Surface Railroad Company ; shortly after receiving it Mr. Alexander handed the papers to the firm of Robinson, Scribner & Bright. So> that early in the afternoon of the 29th day of August, 1884, these papers were in the hands of the defendant’s lawyers.

A Judge of the Supreme Court for several hours that-afternoon was in the Court-house. No application was made to him for an order dissolving the injunction until after-dark on that night. During the period of waiting, a conclusion was arrived at by Sharp and his friends. They decided to call together the Aldermen, friendly to them, the next morning. A messenger was sent from the office of' Robinson, Scribner & Bright to Long Branch to notify one alderman ; a telegram was sent to Alderman Waite at New London, notifying him to be present the next morning by nine o’clock. Moloney, the Reading Clerk of the Board of Aldermen, wrote a call for a special, meeting of the Board of Aldermen, at nine o’clock, and, leaving the office late in the afternoon, proceeded through the different wards-of the city, to the homes of the different members of the Board of Aldermen, for the purpose of getting the signature of the requisite number upon the call.

Sharp went up town and proceeded to the store of James-Pearson (one of the members of the Board), and notified him that there would be a special meeting of the Board of Aider-men the next morning, at 9 o’clock (Pearson had not heard, of it before), and asked him to meet Moloney at half-past 8 o’clock on the corner of Fifth avenue and Twenty-third street, for the purpose of signing the call. Pearson met Maloney, signed the call, as requested, attended the special meeting, and voted for the resolutions.

*409Meanwhile, Mr. Bright crossed to Brooklyn, and reaching Judge Bartlett’s house about half-past eight o’clock on that evening, asked him to sign an order dissolving the injunction. Judge Bartlett signed the order, but at the same time asked Mr. Bright when the next meeting of the Board was to take place, to which Mr. Bright, as Judge Bartlett testified, replied, the next meeting of the Board would take place on the Monday or Tuesday following.

Returning to New York that night, Mr. Bright communicated with Richmond, and the next morning went down with Richmond to the City Hall, arriving there a few minutes before nine o’clock, and as soon as the County Clerk’s office was open entered the order of the discontinuance of the suit and obtained a certified copy. Waite arrived from New London at half-past seven o’clock and went to the Brevoort House. Richmond, who lived there, told him to come down to the City Hall as soon as possible. He arrived there about nine o’clock and entered the Court house by the north entrance on Chambers street. As he was walking through it he met Bright and Richmond. One of them handed him a certified copy of the order of discontinuance of the suit. Putting it in his pocket he proceeded to the Office of the Clerk of the Board of Aldermen in the City Hall. There he found Moloney busy with the call, and immediately signed it.

Moloney had spent part of the night previous in getting signatures to the call. By ten o’clock that night he had reached FullgrafPs house, in the annexed district. After getting FullgrafPs signature to the call, he asked him to notify Captain Twomey, the Clerk of the Board, to be at the City Hall the next evening at nine o’clock. Fullgraff did so, and Twomey reached the City Hall a little before nine o’clock. He immediately directed Moloney to send notices to those members who had not signed the call, and Moloney prepared the notices and mailed them to the several Aldermen who had not signed the call, notifying them to attend by nine o’clock. It was then five minutes before nine o’clock.

The necessary signatures having been obtained, the Alder-. *410men entered the Aldermanic Chamber by their private entrance, the door catching behind them. The public entrance was bolted and barred and remained so until the business for which they had come together was accomplished. In the absence of Kirk, who was out of town, Waite was made chairman. He spread before the Board the order dissolving the injunction. A motion to suspend the regular order of business was immediately made. A resolution to proceed to the consideration of the Broadway Surface Railroad franchise was at once made. And then, without debate, by unanimous vote of all present, they were passed over the veto of the Mayor.

The Mayor of the city at once submitted to the Corporation Counsel an account of these proceedings, with an inquiry as to whether or not the meeting was legal and any action taken thereat valid. On the 8tli day of September, 1884, the Corporation Counsel rendered an opinion, which the Mayor presented to the Board, to the effect that the meeting of August 30, 1884, was illegally called, and that any action taken by the Board at it was null and void.

Upon the morning of August 30, 1884, the Broadway Surface Railroad Company determined to make a second petition to the Board. It was presented on the 6th day of October, 1884.

A resolution to rescind the action of August 30 was voted down.

The second petition was referred to the Railroad Committee of the Board. As before, the lawyers for the defendants prepared the notices and fixed the dates when the Railroad Committee should meet and hear persons interested for and against the measure. During this period Alderman Waite was constantly at the office of Robinson, Scribner & Bright. On more than one occasion he went there for the purpose of ascertaining what the wishes, views, etc., of the defendant and his associates were in reference to the conduct of the Committee and the treatment of the representatives of the various interests which were to appear before it. Waite testified that although he had no direct communication with the defendant *411Sharp, he observed Moloney go from him to the defendant, and that he brought back directions, which he represented the expressed wishes of the defendant and his associates.

A second report in favor of the Broadway Surface Railroad followed.

The Mayor brought another suit in the name of the municipality against the Aldermen, to compel them, in case they did confer the franchise upon the Broadway Surface Railroad Company, to secure to the City by proper guarantee at least the statutory percentages as compensation. An injunction order obtained in that suit was modified upon the 13th day of November, 1884, in such a way as permitted the Common Council to pass the resolutions upon certain conditions mentioned in the order modifying the injunction. On the 13th day of November, 1884, for the second time the Board passed resolutions granting the consent to the Broadway Surface road. As before, the resolutions went to the Mayor, who returned them with a veto message upon the 24th day of November, 1884, insisting that the franchise ought to be put up at auction. Upon the 5th day of December, 1884, by a vote of twenty-two to two, the Board passed the resolutions over the Mayor’s veto.

For the purpose of establishing the conspiracy which the prosecution claimed was formed to bribe as many members of the Board of Aldermen as were necessary to pass the franchise, the prosecution next proceeded to show that soon after the franchise was finally passed on the 5th of December, bills of the same denomination as those, which in haste and at a sacrifice were raised by Foshay and Kerr on the 4th of August, 1884, were found in the possession of other members of the Board besides Fullgraff. Arthur J. McQuade,- one of the thirteen Aldermen, had four one-thousand-dollars bills in his possession. Patrick Farley had in his possession in January, 1885, $10,000 in bills of the denomination of 500 and 1,000. In.the month of February, 1885, Patrick Kenney, another of the thirteen Alderman, had in his possession $33,000 in large bills.

*412In the month of December, 1884, William Moloney called at the Sub-Treasury in the City of New York and got changed a one-thousand-dollar bill and a five-hundred-dollar bill.

William H. Miller, a member of the Board of Aldermen of 1884, testified that in the month of December, 1884, he received from Robert De Lacy, the same person from, whom Fullgraff received his bills, $5,000 in bills of the denominations of 1,000’s, 500’s, 100’s, and 50’s. He was sure there were at at least one one-thousand-dollar bill and several five hundred-dollar bills.

Miller received a telegram from De Lacy to come to his house on a certain evening. Shortly after his arrival De Lacy gave him a roll of bills, saying there was something to buy election tickets with. When Miller received it, De Lacy said nothing, but he had his misgivings as to the account upon which the money was paid. He supposed at the time that the money was given to him for his vote for 'the Broadway surface road, and his misgivings became so strong that a few days afterwards, meeting De Lacy, he asked him to come over to his store, where he returned the money to him.

The prosecution next proceeded to show that after the franchise had been obtained from the Board of Aldermen, a proceeding theretofore begun, was continued before the Commissioners appointed by the General Term under the Act of 1884, which required in default of the consent of the property-owners, a favorable report from Commissioners appointed by the General Term of the Supreme Court, and confirmed by it. The proceeding before the Commissioners was continued during the winter of 1885, and was concluded in the spring of that year. The report of the Commissioners was confirmed by the General Term, and in June, 1885, all the proceedings having been successfully concluded, the railroad was built.

The two millions and a half of bonds which the directors had authorized to be issued, were thereupon delivered to the defendant Sharp, and by virtue of the guaranty of the Seventh Avenue and Twenty-third Street roads, at once became worth $107 per bond. So that the defendant Sharp, *413in June, 1885, came into possession of the sum of $2,600,000 in round numbers.

[The prosecution claimed that they had already proved that the plan of bonding the Seventh Avenue Railroad had been matured by Sharp, Foshay and Kerr before the meeting of the directors of the Seventh Avenue road on the 22d day of July, 1884. On the 18th day of July,1884, Sharp and Foshay had been together in consultation at the office of Robinson, Scribner & Bright. On the 19th day of July, Foshay had gone to Siebert, the lithographer, with a form of a bond, and informed him that he required five hundred copies within seven days. On the 22d day of July, 1884, the day that the directors met, the bonds were, as the prosecution claimed, therefore half printed.]

The prosecution called as witnesses all of the directors of the Seventh Avenue road who were present at that meeting, namely: George FT. Curtis, A. C. White, George Law, Alfred Wagstaff, and all of them testified that prior to the date of that meeting they had not heard of any plan to bond the road for $500,000; that the first they knew of any plan to bond the road for $500,000 was at the meeting itself; that they did not discuss the resolution when read, hut voted for it without discussion; and that it was their understanding that the money authorized to be raised by the resolution was to be devoted for the purposes of improving the depot, but that they never made any inquiry as to whether or not it was in fact devoted for such purposes.

These directors with the others, John J. Bradley, John H. Murphy, M. Sidney Smith, and M. M. White, were present at the various meetings of the directors of the Seventh Avenue road between July, 1884, and June, 1885, when the Treasurer’s reports, purporting to show the financial condition of the company, were submitted to the Board; but no one of them examined the books, or took any steps with a view of ascertaining whether or not the $500,000, authorized to be raised by the issue of bonds had been devoted to the purposes specified in the resolution.

*414The resolution authorized the issue of $500,000 in bonds to purchase lands, enlarge the depot, and extend the facilities of the company, but it was proved that no ground or timber was ever purchased out of the proceeds of these bonds, nor was. the depot in any way enlarged. No enlargement of the depot was undertaken until over a year afterwards, when the improvements upon it were paid for out of other funds of the company.

The prosecution claimed that while nothing upon the face-of the resolution indicated that the money was needed at once, yet everything that was done from the 18th to the 22d day of July, when the resolution was passed, and from the 22d day of July until the 4th day of August, when the money was finally raised, indicated a most emergent need for money at once. They further contended that the sum of $500,000, so raised, was either immediately disposed of, or else it was on hand during the next eleven months.

The prosecution attempted to prove that it was not on hand at any time during that period, by the following circumstances :

1. Although the company had two bank accounts—one in the Pacific and one in the Broadway National—the money was not deposited in either.

2. No entry was made upon the cash book of the company of the $500,000 received from the sale of the bonds.

3. The book-keeper of the company at the time, a Mr. Ramsey, was never told that $500,000 worth of bonds had been sold, much less what had been done with the proceeds.

4. In September, 1884, another book-keeper, named Townsend, was called in for the purpose of writing up the books of the company, and preparing the report to the Railroad Commissioners. Looking over the books, he perceived the resolution authorizing the issue of $500,000 in second mortgage bonds, and asked Foshay and Kerr whether or not the bonds had been issued. When they said they had, he asked what debit items he should put on the books against the $500,000, to which Foshay and Kerr replied that they could not tell *415him what the debit items were just then. Afterwards they told him to debit $500,000 to the contract with the Broadway Surface road, and thereupon Mr. Townsend debited it to the “ contract under the resolution of July 22, 1884, for $500,000 second mortgage bonds.” The contract was the contract with the Broadway Surface Railroad Company.

5. Although the treasurer made monthly reports to the directors of the condition of the company, as he was required by the by-laws to do, in not a single one of his reports from September, 1884, down to June, 1885, does he charge himself with the $500,000, or report that that sum was deposited anywhere to the credit of the company.

6. In his reports of October and November he credits himself with the first mortgage bonds which had been paid out as a bonus for the purpose of raising the $500,000, but in neither of these reports does he allude to the sale of the ° second mortgage bonds.

7. During the interval from the 1st of September, 1884, to June, 1885, three quarterly reports were filed with the Railroad Commissioners. No mention is made in any of these reports of $500,000 cash on hand. The report of September 30, 1884, says cash on hand $15,015.30; the report of December 31, 1884, says cash on hand $4,586.05; the report of March 31, 1885, says cash on hand $9,391.06.

8. The use and disposition of the $500,000 was concealed in the reports to the Railroad Commissioners. In the report of September 30, 1884, in place of stating that the company had $500,000 in cash, the proceeds of the bonds, as would have been stated if they had had it, the report states “ *sundries*” $500,000. The next reports of December 31, 1884, and March 31, 1885, omit the word “sundries,” and say “ bonds and proceeds of bonds.” Both reports avoid stating that the company had $500,000 cash on hand.

9. Not only was no part of the sum of $500,000 used to purchase lands and enlarge the depot of the company, but no part of it was used to extend the facilities of the road. For, although during the autumn of 1884 and the winter of 1885, *416some $60,000 or $70,000 were spent by the Broadway and Seventh Avenue road, upon the contract with the Broadway Surface road, which might be said to be an extension of the facilities of the Broadway and Seventh Avenue road, no part of that sum was taken out of the $500,000 raised for such purposes.

10. This $60,000 or $70,000 was raised by the sale of the balance of the first mortgage bonds which were not used as a bonus upon the sale of the second mortgage bonds in August, 1884.

11. The company was so embarrassed for cash in December, 1884, that it was obliged to borrow $5,000, and the balance-sheet of December 31, 1884, shows cash on hand, $4,-586.05, and an indebtedness for borrowed money of $5,000.

In the month of June, 1885, the book-keeper, Townsend, was handed, by either Fosliay or Kerr, certain vouchers, with the statement that these represented the disposition of the $500,000. From these vouchers Townsend made upon the books the following entries, under date of June 30, 1885 :

Amount paid Jacob Sharp, as per his receipt of this date, for horses, harness and other equipments - . $230,000 00

And for construction of additional

sidings, turnouts and switches - 7,633 32

$237,633 32

Amount paid Jacob Sharp, as per his receipt of this date, being for 75 cars to be delivered -

75.000 00

Amount paid Robinson, Scribner & Bright per receipt this date for legal services and expenses -

76,366 68

Amount paid George C. Bliss for legal services -

11,500 00

Amount paid Alexander & Green for legal services -------

50.000 00

Amount paid Robert L. Waters, civil engineer and surveyor, for services in construction as per receipt this date -

2,500 00

Total amount

$453,000 00

*417In two instances the receipts were signed by Sharp, one receipt was signed by Robinson, Scribner “& Bright, one by Mr. Bliss, one by Alexander & Green, and one by Waters. The prosecution was -unable to introduce these vouchers in evidence, because they had disappeared from the files of the company. Having proved their loss by Ramsey, who was the authorized custodian of them, the court permitted the prosecution to prove their contents.

The prosecution adduced evidence tending to show that these entries were false, so far as they indicated that the Seventh Avenue road ever paid out the sums for the purposes specified in these entries, and that the sums indicated by the entries were never paid by the Seventh Avenue road at all, but by Jacob Sharp, and that the vouchers were prepared by him for the purpose of covering up the guilty use and disposition of the 1500,000.

1. That the entries were not made upon the books of the Seventh Avenue Railroad Company until June, 1885, when Sharp, having converted into cash his now valuable bonds of the Broadway Surface road, was in funds.

2. That under his agreement of July 31, 1884, with the Broadway Stirface road, Sharp had agreed topay all the expenses incident to the establishment of a surface road on Broadway, and all legal expenses then incurred or which might be incurred within a period of eighteen months after that date. So that the defendant Sharp was obliged by his agreement to pay for the things which the entries indicated that the Seventh Avenue road had paid for.

It was proved that.as a matter of fact the Seventh Avenue road did not pay, and Sharp did pay the sums indicated by said entries. Scribner & Bright were paid by Sharp’s check on the Broadway National Bank. Mr. Bliss was paid with bonds which Sharp gave to Richmond for that purpose. Alexander & Green were paid by Richmond out of a check which Sharp gave him, and which was cashed by the Broadway National Bank on the 19th day of June, 1885. The cars were paid for by Sharp’s bonds which he gave to Richmond for that pur*418pose. Waters, the civil engineer, was paid by Richmond out-of money which he had received from Sharp.

As to the item of $237,633.32, indicating that Sharp received from the Seventh Avenue road $237,633.32 for the construction of sidings, turnouts and switches, and for horses, harness and other equipments, the prosecution pointed to the following facts:

It appeared that Sharp had made a contract to purchase the three stage lines on Fifth Avenue and Madison Avenue for $450,000 in the second mortgage bonds of the Broadway Surface road. That contract was completed in the summer of 1885, and Sharp became the owner of the horses, harness, and other equipments belonging to the stage lines. The entry in question indicated that he turned over to the Broadway and Seventh Avenue road $237,000 worth of horses, harness and other equipments. The prosecution proved that no harness was ever received by the Seventh Avenue road on that account from Sharp, but that out of its other funds the road bought harness at an auction sale of the property of the stage lines. At the same auction sale they bought out of other funds stages for some connecting line in lower Broadway. The prosecution also proved that only $60,000 worth of horses were delivered to the Broadway and Seventh Avenue road under that item, and that the item was imaginary so far as $170,000 of the sum was concerned. When the witness, Townsend, entered the item at first he partitioned it erroneously; that is, the total amount of the voucher was not altered, but he had charged more for switches, turnouts and sidings and less for horses and other equipments. Foshay and Kerr looked it over and told him to partition it differently, and to charge only $7,633.32 for switches, turnouts and sidings, and the balance for horses, harness and other equipments. Erasures upon the books of the Seventh Avenue company appeared accordingly.

By these items $453,000 of the $500,000 was accounted for. The balance of 47,000, the defendant Sharp, paid in a check of $50,000 to Kerr, the treasurer of the Seventh Av*419enue road, who deposited it to the credit of the Seventh Avenue road in the Pacific Bank, where it was used to meet the accruing interest upon the second mortgage bonds.

When the defendant was before the Senate Committee he was examined in detail as to the item of $237,633.32, the item of $75,000 for cars, the item of $76,366.68 paid to Robinson, Scribner & Bright, and the item of $11,500 paid to Mr. Bliss, and he stated that he had received these sums from Foshay, the President of the Seventh Avenue Railroad Company, in bills, upon the 18th or 19th day of June, 1885, but that he could not recollect what he had done with the bills or any of them.

Upon all these facts the prosecution claimed that the defendant Sharp had the $500,000 in August, 1884; that he had disposed of it for the corrupt purpose of bribing the Board; that no account of it could be given until defendant Sharp was in funds; that when he was in funds he furnished vouchers to cover up Ms crime; and that having accounted for all that he could with any decency charge against the Seventh Avenue Railroad Company, he paid back $47,000 of the $500,000 to the treasurer.

There was no direct proof that on the 4th day of August, 1884, the money was transferred by Foshay and Kerr to Sharp, who caused it to be delivered to Keenan, the stakeholder of the combination. The prosecution asked the jury to infer that from all the circumstances of the case. The prosecution proved that they could not produce direct evidence, because Keenan, DeLacy and Moloney were not in the jurisdiction, but were at the time of the trial in the Dominion of Canada.

The prosecution also introduced in evidence the testimony of the defendant Sharp, given before a committee of the Senate of the State of New York appointed to investigate the methods by which the Broadway Surface Railroad had obtained the franchise from the Board of Aldermen.

The defendant was convicted and sentenced to four years imprisonment and to pay a fine of five thousand dollars.

*420An application for a stay of proceedings pending the appeal taken to the renewal term of Supreme Court by defendant, was made to Justice Potter, who held that there had been incompetent evidence allowed to be given on three points, namely:

First. The testimony given by the defendant before the Senate Committee.

Second. The fact of the absence of persons charged in the indictment with the defendant with the crime of bribery, and their sojourn in Canada as the excuse for their non-production as witnesses against the defendant by the prosecution, and Third, the opinion or supposition of the witness Miller as to the motive or purpose of De Lacy when he handed Miller the $5,000.

In a very elaborate opinion, Justice Potter discussed these questions, and granted a stay of proceedings.

*W. Bourhe Cochran, Jho. JS. JParsons*and *Albert Stickney*for ndant appellant.

I. The prosecution is bound to establish, under this indictment—

1. Violence, that is, constructive violence—a constructive .•assault.

The averment, *vi et armis,*contained in the indictment, is essential. This is seen by a comparison of this indictment against Sharp with the indictment against Fullgraff, where the district attorney has alleged correctly that there was an assault, but that the assault was committed by Fullgraff.

The distinction between the two crimes is one that rests on fundamental, elementary principles, well established, and evidenced by the mere fact that there are two distinct crimes, and two crimes of bribery and extortion. Extortion consists, we submit, in the exaction of money, or things of value, by the official, as the price for doing his official duty. Bribery is the influencing of an official, by money or things of value, to violate his official duty.

The distinction is, that in the one case the official, in the *421eye of the law, assaults, and in the other he is assaulted ; in the one he is led from the path of duty, and in the other he exacts money for not leaving if;.

2. Bribery with money.

It would not be sufficient to prove bribery with bonds, or gold certificates, or other things of value, or a corruption by mere political influence. 1 *Hawkins’ Pleas Cr., Bk.*I., chap. 67 ; *Davy*v. *Baker,*4 Burr., 2471; *Johnson*v. *State,*Mark & Yerger, 129 ; *Garner*v. *State,*5 Yerger, 160; *State*v. *Stephenson,*83 Ind., 246.

3. Bribery in relation to the vote of 30th August.

4. Bribery by or through some act of the defendant; either an open act of his, or the act of another, which the defendant actively counseled, procured, aided or abetted.

Mere connivance, or permission, or sympathetic knowledge, or an after enjoyment of the fruits of the crime, is not sufficient. *Reg.*v. *Barry,*4 Foster & F., 389; *Reg.*v. *Blake,*6 Q. B. 126; *Grant*v. *Pagham,*37 Law Times R., 204.

II. Taking the testimony, as it reads, giving weight to the whole of it,

1. The case -made out by the prosecution, on its own evidence, on the only evidence on that point in the case, is one of extortion by Fullgraff. *Stephen’s Big. Or. Law,*Art. 137, p. 85; *May’s Criminal Law,*p. 115 . *Brage’s Or. Gode, German Empire,*p.286; *O’Brien*v. *State,*6 Tex. App., 665; *Com.*v. *Mc Cook, 2*Whar. Prec. Indict., 4th ed., 508; *Cutter*v. *State,*36 N. J., 135; *Penal Code,*§§ 48, 49, 50, 557, 78.

2. No act of the defendant, or of any party whom he is proved to have aided, abetted, counseled or procured to act, connected with money, is established by this evidence.

On the contrary, the evidence of the prosecution, so far as it goes, shows, at most, a combination of Aldermen to commit extortion, the receipt by one of the Aldermen of money from another Alderman, the disappearance (at most), of money in the hands of Foshay and Kerr, and a false account rendered to their principals.

Even as to Foshay and Kerr, all this evidence, as far as it *422proves anything, does not tend necessarily to prove their guilt of the crime charged in this indictment. This evidence shows only the conspiracy of the Aldermen, and their selection of Keenan as the agent of the aldermen.

Even if this indictment were for conspiracy, it is well established that the defendant’s criminal liability, the fact that he was a co-conspirator, must be established by evidence of his own acts. In this respect, an indictment for a conspiracy stands on precisely the same footing with an indictment for any other crime. There is no special virtue in the term “ conspiracy,” such as that it should establish a man’s guilt on evidence of the acts of other men. *Wright on Criminal*Conspiracy, pages 69, 71; *People*v. Toms, 3 Parker, 256 ; *People*v. Courtney, 1 N. Y., Crim, 64; *Cuyler*v. *Mc Cartney*40 N. Y., 221; *Ormsby v. People,*53 N. Y. 472; *Com.*v. *Work,*43 Leg. Intell. 57; *Johnson*v. *Miller,*63 Ia. 529; *U. S.*v. *Jones,*3 Wash. C. C. 209; *Swan*v. *Com.,*104 Penn. St. 218.

The evidence in this case, too, being as to this defendant only circumstantial, and made up, as to this bribery, almost entirely of evidence of the acts of others, must be “ absolutely incompatible with the innocence of the accused and incapable of any explanation upon any other reasonable hypothesis than that of his guilt.” *Cb'eenleaf, Pvid.,*§ 13, note (a.) *Wills Circumstantial Pvid.*141 ; *People*v. *Bennett,*49 H. Y. 137, 144.

Judging this case, by the rules here laid down, on the evidence, we submit, that the utmost conclusion that can be drawn, even as a matter of mere inference, is that the defendant had knowledge of the bribery. Even that he had mere knowledge, of his mere connivance, there is no direct evidence. That he did any act, took any active part of any kind, in connection with the use of money, there is no evidence whatever, direct or circumstantial. There is no ground for anything more than surmise.

III.—But treating the testimony of Fullgraff as the law compels, then, we submit, there is a complete failure of *423evidence as to all the essential allegations in the indictment.

Fullgraff stands, on his own deliberate admission, on this record, a confessed, wilful, deliberate perjurer. He not only .admits his perjuries as to one or two points, but he says he has committed perjury on so many matters that he cannot tell their number. He shows his utter disregard for the truth at every stage of his evidence. He makes no pretense of •any regard for honesty of statement, either with an oath or without it. He states deliberately, at one point of his cross-examination, that he is ready to give his testimony in a particular form, merely to please the examining counsel.

The law in this State is, that where there is, on the evidence, any open question as to whether the inaccuracies of the witness were honest mistakes, then the question whether the jury are to give any credit to his evidence is for their decision. If, however, there is no open question, if it is ■certain, free from doubt, that the witness has, on matters material to the issues, committed wilful, deliberate perjury, then as a matter of law, the jury are bound to wholly disregard his evidence. If the witness has been convicted of perjury, he. cannot be sworn. If, however, he has not been convicted, but it is made clear and certain on the evidence that he is a wilful, deliberate perjurer, then his testimony •ceases to have any value as evidence. *The Santissima*Trinidad, 7 Wheaton, 283, 339; *Dunlop*v. Patterson, 5 Cowen, 243 Cited with approval in *Deering*v. *Metcalf,*74 N. Y. 504.

This principle, as here stated, has nowhere been questioned in the decisions of our highest courts. The cases where ■ doubt may be deemed to have been thrown upon it, are all •cases where the evidence left the question of perjury one of ■doubt.

But when the witness is not only a confessed perjurer, but an accomplice, the law is well established in this State that his testimony is not not to be regarded. Either cir•cumstance, alone, makes it necessary to have corroboration ; hut the combination of the two circumstances together, *424makes it obligatory on court and jury to wholly disregard the evidence. *People*v. *Evans,*40 N. Y. 1.

If the testimony of Fullgraff be wholly disregarded, particularly on the points where he admits his perjury then the case of the prosecution wholly fails.

IY.—It was error to allow Fulgraff to testify almost in the exact words of the statute, that he had committed the crime of bribery.

The record is as follows, fols. 3403-3404:

“ Q. Did you, during the month of June, 1884, make any agreement on promise to vote for the Broadway Surface Bailroad Co.’s petition for a road on Broadway for money ?

Objected to by the defendant’s counsel on the grounds :

1. —That the question is, in the mere words of the statute, whether or not the offense has been committed, and that the question should be directed to some specific conversation or transaction.

2. —Even if the question be proper in form it should first be shown that the individual with whom the conversation or transaction was had was the defendant himself or some person with whom the defendant was connected by the evidence.

Objection overruled. Exception taken.

A. I did.”

This ruling allowed the witness to give Ms opinion on the very issue wMch was to be decided by the jury. *Nicolay*v. Unger, 80 N. Y., 54, 57. *Miller*v. *L. I. R. R. Co.,*71 N. Y., 380, 385. *Dewitt*v. *Barly,*17 N. Y., 340, 346. *Nichols*v. *White, 41*Hun, 152, 155.

Y.—It was error to admit the evidence of Fullgraff to the statements made at the different meetings of the combining Aldermen.

The alleged ground for the admission of all this mass of evidence, of acts of other persons, of acts of the defendant which had no connection with the crime charged in the indictment, was that this was a charge of conspiracy.

(1.) In answer to this position we say, that the indictment is not an indictment for conspiracy.

The law does not allow that a man shall be tried for a. *425misdemeanor, and sentenced for a felony. He must be tried on the charge in the indictment.

What the Court in this case really held was this: It held, in effect, that the different efforts made at one time and another during a long period of years, by the defendant with other persons, in a lawful enterprise, prosecuted, as far as the evidence shows, by lawful means, was a single crime, a single conspiracy.; and, on that ground, the Court admitted, on the trial of this indictment, which is not an indictment for conspiracy, evidence of acts of other men, and evidence of acts of this defendant, which had no connection with the crime charged in the indictment, so long as those acts had some possible connection, at some time, with the efforts made at that time to get a railroad in lower Broadway.

(2.) Even if this were, however, an indictment for conspiracy, the fact that the defendant was a conspirator, like all other criminal responsibilities, must be finally and conclusively established by his own acts. His own acts, taken by themselves, must be wholly inconsistent with any reasonable hypothesis of innocence. His own acts must prove him to be guilty, beyond any reasonable doubt.

Suppose, for instance, a case of partners; that bribery was established against one of the partners, in a matter connected with the partnership business; and that the other partner, separately on trial, was shown to have received in the end the benefit of the bribery, through sharing the profits of the partnership business. In a civil action, to establish a civil liability, this would be sufficient. In a criminal action, to establish a. criminal liability, it would be insufficient. *Wright on Criminal*Conspiracy, pages 69, 71. *Wharton Cr.*Law, Sec. 1402. *Wharton Cr. Ev.,*Sec. 695. 1 *Bishop Cr. Law,*Sec. 633-4. *Reg.*v. *Luck,*3 F. & F., 483. *Cuyler*v. *McCartney,*40 N. Y., 221. *U. S.*v. *Johnson,*26 Fed. Rep., 682. *Swann*v. *Com.,*104 Penn. St., 218. *State*v. *Parsons,*12 Missouri App., 205.

The only ground on which such testimony could be admitted was the ground deliberately avowed by Mr. Justice Babbett, *426that any evidence that would have been admissible against Fullgraff himself, had he been on trial, was admissible .■against Mr. Sharp.

The mere statement and admissions of Aldermen were undoubtedly admissible against Aldermen. But on what principle were they admissible against Mr. Sharp ? No such principle is known to the law.

VI. —It was error to admit Fullgraff’s evidence of his conversation with Keenan.

Keenan, on the evidence, was the agent only of the Aider-men. He was selected by them. No communication was •ever shown between Keenan and the defendant, or any of the parties'interested in the railroad.

VII. —It was error to admit the evidence of the witness Brown as to the loan made by Fullgraff to Carnrick and Read.

This evidence was admitted by the presiding justice, as he stated, on the ground that the evidence would have been admissible against Fullgraff, if he had been tried under the indictment against him. That ground, we submit, is untenable. The evidence cannot be properly termed corroborative. Corroborative evidence must be to some fact in itself material to the issue which tends to connect the defendant with the crime charged in the indictment. It must be something more than evidence that would be admissible against the witness, if he were the party on trial.

*People*v. Plath, 4 N. Y., Crim., 53; *People*v. *Hooghkerk,*2 N. Y. Crim., 204; *Commonwealth*v. *Holmes,*127 Mass., 424.

The evidence of the mere possession of bank bills, even if they were large bills, was insufficient.

*Walbridge*v. *State,*13 Neb., 236; *State*v. *Furlong,*19 Maine, 225 ; *Commonwealth*v. *Holmes,*127 Mass., 424.

VIII. —It was error to admit evidence of the mere statement of De Lacy, testified to by Fullgraff, that the fund of five hundred thousand dollars for corrupting the Aldermen had been deposited.

*427If it should be argued that this statement of De Lacy is admissible as the statement of a co-conspirator with the defendant, the argument is met by two answers:

(a.) Even if the indictment had been for conspiracy, there was no evidence in the case that De Lacy was a conspirator with the defendant. De Lacy was indeed joined as a party defendant with the defendant. But on that point there was no evidence. The prosecution cannot, by merely joining a party as a co-defendant, make his declarations evidence against another defendant. There was, no doubt, evidence that De Lacy was a co-conspirator with Fullgraff, in the combination of the Aldermen to exact money. But there was no evidence that De Lacy had formed any combination for any purpose with the defendant.

(6.) Even if it had been proved, however, that De Lacy had been a co-conspirator with the defendant himself, the mere statement of De Lacy as to a past fact was not such a declaration as would be admissible against a co-conspirator. It was at most an admission of De Lacy.

1 *Phillips on*Evidence, pages 207, 208 ; 1 *Taylor on Evidence*(8th Ed.), Sec 593 (530.) Sec 594 (531.) *Stephen's Pig of*Evidence, Art. IV., and Note III; *State*v. *Shumaker,*4 Storbh., 266.

IX. It was error to admit the evidence of the witness Pottle, a clerk of the Assembly, to show an alleged attempt to bribe him in May, 1883.

The law is that a man is to be tried only for one crime at one time.

Especially he is to be tried only on the crime charged in the indictment.

Even if evidence of another crime would be admissible on other grounds, the general rule is that the evidence will be excluded, for the reason that it compels the defendant to meet a charge not set forth in the indictment. *Wharton's Cr. Ev.,*Sec. 30; Sec. 48; *Regina*v. *Oddy,*5 Cox, C. C., 210; *Berger*v. *People,*9 Weekly Dig., 460; *Copperman*v. *People,*56 N. Y., 591; *Schaffner*v. *Commonwealth,*72 Penn. *428St., 60 ; *Commonwealth*v. Jackson, 132 Mass., 16.

The purpose for which this evidence was admitted was stated to be to prove motive.

The only motive which the prosecution could be allowed to prove was, we submit, motive for bribing an Alderman in August, 1884.. We submit that the fact that the defendant was or was not in favor of the General Act of 1883, has, in law, no tendency to prove that he had a motive to bribe the Aldermen in August, 1884. *State*v. Lapage, 57 N. H., 245; *Coleman*v. People, 55 N. Y., 81; *People*v. Corbin, 56 N .Y., 363; *People*v. *Gibbs,*1 N Y. Crim., 472; *People v. O’Sullivan,*5 N. Y. Crim., 235.

Assuming that this alleged attempt to bribe this clerk, in May, 1883, was caused by the interest the defendant then had in the Broadway Railroad scheme as it then existed, there is no presumption, either of law or fact, that his interest would continue to exist at a period of a year thereafter.

This defendant’s interest in the Broadway scheme at the time of the alleged bribery was abundantly proved, and was formally conceded by the defense at the time when this evidence was offered.

To establish motive it might, in some cases, be allowable for the prosecution to prove the commission of a crime, other than the one described in the indictment. But it is impossible to conceive that the bribery of the Aldermen could be effected or promoted in any way by the bribery of Pottle. The tendency and the only possible result of this evidence was to show a predisposition of the defendant to the commission of the crime of bribery. *People*v. *Corbin,*56 N. Y., 363 ; *People*v. *Gibbs,*1 N. Y. Crim., 472; *Berger*v. *People,*9 Weekly Dig., 460.

X. It was error to admit evidence of communications made to the Board of Aldermen after August 30, 1884.

The evidence thug admitted included an extract from the *Sun*newspaper, and a letter containing statements very injurious to the defendant. They had no bearing whatever on the case.

*429XI. It was error to admit evidence of the mere possession of large bills by other Aldermen than Fullgraff, and especially by Alderman Miller.

In no one of these eases was there any direct evidence that the money in question had come from Foshay and Kerr. On the other hand, there was evidence that the Aldermen got money from other railroad matters before the Board. The money in the hands of the Aldermen might have come from any one of many different sources. In the case of Alderman Kenny the amount of bills in his possession was thirty-three thousand five hundred dollars; while the amount testified to by Fullgraff as coming to each Alderman from the Broadway matter was only eighteen thousand dollars. In the case of Kenny, therefore, it was certain, on the evidence, that at least part of the money must have come from other sources.

The admission of evidence as to money in the hands of Alderman Miller, however, was a case quite different from the others. Miller’s evidence was that he had no understanding or communication with any one as to his vote on the Broadway consent; but that some time after his vote DeLacy handed him five thousand dollars, with no statement whatever as to the matter or consideration for which the money was given. Miller was not one of the combination. Nor was he one of the Aldermen who voted for the resolution charged in the indictment of the 30 th of August. There was, therefore, we submit, no ground whatever on which the mere possession of money by Miller was evidence against this defendant under this indictment, unless the mere possession by any Alderman of large bills, without evidence as to the source from which the bills came, was evidence against this defendant, under this indictment.

XII. It was error to admit evidence of the “ understanding ” of Alderman Miller, as to the receipt by him of money from DeLacy, in view of his testimony that there was nothing said as to the money being paid on account of the Broadway vote. Especially was it error to allow Miller’s evidence • that he “ supposed it was for the Broadway road.” It was *430also error to admit Miller’s conversation and the transaction ¿s to his repayment of the money to DeLacy.

XIII.—It was error to admit the evidence given by the defendant before the Senate Committee.

Upon these facts, we submit, the evidence was inadmissible on the following grounds :

(1.) The Constitution, without reference to the bribery statutes, protects the defendant against the use of the evidence before the Senate Committee.

The words of the Constitution are:

“ 3STo person * * * shall be compelled *in any criminal case*to be a witness against himself.

Before this legislative committee, which in this respect differs utterly from a court, the defendant had no protection on the ground that his answers would criminate him ; and, therefore, inasmuch as his testimony was given under compulsion, which the law did not allow him to resist, he is protected against this use of his evidence on his own trial by the Constitution.

(«.) Before a committee of either House of the British Parliament a witness had no privilege. *Gushing's Manual of Parliamentary Law*; *Mansard Pari.*Debates, 1st *Series, Vol.*38, pp. 919, 956.

(5.) Our State Legislature, within the limits of its legislative power, is supreme; and the power of either house, or of its committee, is plenary and unrestricted. First Constitution of New York, *IN. Y. Rev. Stat.*(7 th Ed.), 44; 1 *Rev. Stat.*428, 436-438; *People ex rel Wood*v. *Draper,*15 N. Y., 532; *People ex rel McLean*v. *Flagg,*46 N. Y., 401: *People ex rel McDonald*v. *Keeler,*3 N. Y. Crim., 348.

(e.) The Constitution, which must be supposed to have been framed with reference to the existing law, did not protect a witness from testifying before a Legislative Committee, nor in any way restrict the powers of the Legislature, or of a Legislative Committee, in this respect.

(d.) The Penal Code has, on this point, reinforced the-*431common law, and has declared it to he a misdemeanor for a witness to refuse to answer any proper or material question before a Legislative Committee. Penal Code, Sec. 69.

(e.) As the defendant had no privilege before the Senate Committee, he was bound to obey the law. He was not called on to commit a misdemeanor, or claim a privilege that did not exist. Inasmuch, therefore, as he was compelled to give the evidence, he was protected by the Constitution, in dependently of any statute. Any other rule would destroy the constitutional protection. *Boyd*v. *United*States, 116,U. S. 616, 630 ; *Opinion of Recorder Smyth on Me Quade trial. People*v. *Singer,*4 N. Y., Crim. 1; *People*v. *McCoy,*45 How., 216. *State*v. *Froiseth,*16 Minn., 296.

Emery’s Case, 107 Mass., 172, is an authority for the defendant.

The court in that case distinctly recognized the law, that the power of a legislative committee is unrestricted, and that a witness has no privilege on the ground of self-crimination, unless there be some Constitutional restrictions which limit the power of the legislature. The court there draws the distinction between the provisions of the Constitution of Massachusetts and that of Hew York. The Massachusetts Constitution provides that “ no subject shall be compelled to accuse, or *furnish evidence*against himself.” The Hew York provision is only “ Ho person shall be compelled in *any criminal case to be a witness*against himself.”

The whole point is this : Does our Hew York constitutional provision protect the citizen only against being actually called as a witness in his own person on his own trial, or does it protect him against the use against himself on a trial of evidence which the people have compelled him to give elsewhere ?

This, we submit, is not an open question. The authorities are all in favor of the position of the defense.

Hot only are all the authorities in our favor, but the position of the defense is impregnable on principle. If our position be not sound, the constitutional protection loses substan-

*432(2). Aside from the constitutional protection, the admission of this.evidence was forbidden by the bribery statutes.

These bribery statutes expressly protect evidence given, as this evidence was, before a legislative committee. Chapter 742 of the laws of 1869, Section 8, Penal Code, § 79.

The word “ investigation,” as used in this section of the Penal Code, when taken in connection with the previous act of 1869, evidently includes an “ investigation” by a legislative committee. It may be that the word “ investigation,”' in other passages of the Penal Code refers to investigations before a Grand Jury. In this section, which is evidently a codification of the previous statutes on bribery, the word “ investigation” clearly refers to an investigation by a legislative committee.

It is not necessary that the witness should have made an admission in his evidence that he was a “ person offending against” the provisions of the previous sections of the Penal Code against bribery. If he subsequently is put on trial as such a “ person offending against” the bribery clauses of the Code, his evidence previously given cannot be used against him. The statute is intended to prevént any witness from claiming his privilege. If a witness testifies, he has the fullest protection known to the law. The statute is evidently intended to secure protection as broad as that given by the Constitution. It is on this ground alone that acts like this section of the Penal Code have been upheld by the Court of Appeals. *People ex rel Hackley*v. Kelly, 24 N. Y., 74. *Perrine*v. Striker, 7 Paige, 598.

XIV—It was error to admit evidence that Moloney Keenan, DeLacy, Dempsey and Sayles were in Canada.

The prosecution was under no necessity to account for the non-production of these witnesses.

If this had been the purpose of the evidence, it would have been sufficient to prove that they could not be found within the jurisdiction of the Court.

Even if it had been proved that these defendants were co-conspirators with the defendant, it is well established that *433the evidence of the flight of co-conspirators was inadmissible against the defendant. *Wharton, Crim. Evid.,*Sec. 699. *People*v. *Stanley,*47 Cal., 113.

The question put by counsel for the defendant to Fullgraff as to DeLaey did not make it allowable to admit evidence of the flight of the other Aldermen or of Moloney.

*Randolph B. Martino,*district *attorney; Be Lancey, Nicoll*and *McKenzie Semple,*assistants, for the people, respondents.*

*

 The evidence in the case was very voluminous and his here given some what at lengthas absolutely necessary to a complete understanding of the case. The statement of facts is condensed from the clear narrative contained in the brief of the prosecution.

*

 The witness Powell who testified as to this interview, while certain the word “ fixed” was used by Sharp, was uncertain as to the precise words used by Sharp in telling of the fixing. The only word which was clear in his mind was the word *“*fixed.”

*

Note.—The elaborate and. exhaustive points of the prosecution, covering 134 pages, are omitted, as all the important questions therein discussed are covered by the opinions of the General Term.

The following opinions were rendered by the General Term:

Dakeels, J.

The charge contained in the indictment arose out of transactions alleged to have taken place to obtain the consent of the Common Council of the City of New York to the construction and operation of a surface street railroad on Broadway, between the Battery and Fifteenth Street. The Broadway Surface Company Railroad was organized and incorporated under Chap. 252 of the Laws of 1884. This Law was enacted and went into effect on the 6th of May 1884, and the Broadway Surface Railroad Company was incorporated under it. The Act was passed by the Legislature under the amendments made to the Constitution of the State taking effect on the 1st of January, 1875, which prohibited the construction of street railways without the consent of the local authorities having the control of the portion of the street or highway on which it should be proposed to construct and operate the railroad. The Common Council of the City of New York was the body having such control over the street, and under the authority of Sec. 3 of this Act, that body, subject to the power possessed by the Mayor to veto ordinances, was declared to be the local authority to give such consent.

The indictment charged the defendant and five other per*434sons with the commission of the crime of bribery by offering and giving, and causing to the given to one Ludolph A. Fullgraff then an Alderman and member of the Board of Aldermen of the City of New York, the sum of twenty thousand dollars in money, and a promise and agreement

erefor, with intent to influence him in his acts, votes and proceedings, in the exercise of his powers and functions as a member of the Common Council upon and concerning the petition of the Railroad Company for the consent and permission of the Common Council to lay down and operate its railroad through Broadway. Objections seem to have been taken to the sufficiency of the indictment, but its charges are clearly and explicitly made and disclose a violation by this Alderman and the defendants named in the indictment, of the statute of the state defining the crime of bribery. Concerning its sufficiency, no serious grounds of complaint were urged upon the argument of the appeals, but the objections pressed upon the court and which have been presented and answered with signal clearness and ability, relate to the sufficiency of the evidence given to prove the allegations of the indictment, the admissibility of important parts of such evidence, and the disposition which was made by the court of legal propositions presented to it in the charge given to the jury. These are the important subjects requiring consideration for the decision of the appeals, and the first in order and equally if not more important than either of the others, is the objection so earnestly made that the case, under the evidence, should not have been submitted to the consideration of the jury.

To prove this part of the case so far as to render it the subject of consideration by the jury, Ludolph A. Fullgraff, the Alderman named in the indictment, was placed on the stand as a witness for the prosecution, and he testified to a combination, or association, having been formed by thirteen of the twenty-four Aldermen of the city, to exact money from the parties or company which, it was anticipated, would apply to the board for its consent and permission to construct this

*435railway. Meetings were held, to promote this object, commencing the latter part of the month of May, after the passage of this act. These meetings were four in number, and it was stated by the witness that it was agreed between himself and the other associate Aldermen that consent should only be given for the construction of the railroad through the street for the sum of $500,000 in cash. It was stated for the information of the associates, that the Broadway Surface Railroad Company, which bad then become a corporation, was willing to pay that amount for the right to construct and operate its road through this street. This was stated to the associates as an offer the company had made, and it was concluded among them to accept this offer. And before action was taken upon the petition of the railroad company for the permission, it was stated to at least one of the same persons that this sum of money had actually been put up. And the further evidence of the witness was that it was with that understanding, on the 6th of August, 1884, that the Board of Aldermen adopted the report of its committee giving this consent to this railroad company. It was an essential fact in support of the prosecution that this evidence should be adopted and followed by the jury in the disposition of the indictment. Without, it no case existed against the defendant or his associates. But with this fact established to the satisfaction of the jury, and the further circumstance in like manner proved that the defendant either by himself or in cooperation with the other persons named in the indictment, raised this sum of money and appropriated and paid it for this unlawful purpose, his guilt would be made out.

To meet this evidence and to overthrow the credit of the witness giving it, it was proved upon his cross-examination that he was sworn as a witness in an investigation made in the early part of the year 1886, by a Senatorial Committee for the purpose of discovering the facts involved in general charges of bribery made concerning the permission and consent obtained for the construction of this railroad. In his examination on that occasion, he denied the existence of this *436agreement between himself and his associates and denied having received any sum of money whatever, either to influence, or induce him, to vote as a member of the Board of Aldermen for this permission and consent. And as the facts were all at that time as well known to him as they were stated to be upon the trial of the defendant, he then swore wilfully falsely, if his evidence upon this trial was truthfully given. And upon that circumstance, as well as other contradictions which were explained by the witness to have originated out of mistakes, it was urged in behalf of the defendant that the jury were not at liberty to consider the testimony of this witness as in any manner tending to establish the offense charged in the indictment. But it does not ^follow from the fact that the witness testified wilfully false before the Senatorial Committee that the defendant’s counsel were right in asking that his evidence should be excluded from the consideration of the jury. This subject was considered by the court in *Dunn*v. *People*29 N. Y., 523, and each of the judges who delivered opinions in that case arrived at the conclusion that the jury were still at liberty to consider the evidence of such a witness ; notwithstanding the fact of his having sworn falsely concerning the same subject upon a preceding examination. In referring to this .subject Deííio, C. Instated that, “The true question is whether, when it appears that the witness has sworn differently upon the same point on a former occasion he is to be pronounced by the judge to be incompetent and his testimony stricken out and wholly excluded from consideration, as though he had been convicted of crime rendering him incompetent to testify as a witness, or whether the testimony remains in the case to be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence. In my opinion, the latter is the correct principle of law.” Id. 529. And, as this was assented to by Img-baham, J., who delivered the other opinion, *437and by all the other judges of the court, it seems to be sufficient to establish it as the principle which should be followed under this state of facts on the trial of an indictment. The same point was further examined in *Deering*v. Metcalf., 74 N. Y., 501, where the cases were fully considered and the disposition of the court appeared to be to follow the principle which has just been stated, and not that in general terms announced in *Dunlop*v. *Patterson,*5 Cowen, 243. Further consideration was given to this subject in *People*v. *Reavey,*38 Hun, 418; 4 N. Y. Crim, Rep., where the same rule was followed, and as that case has been affirmed by the court of-Appeals it is in the nature of a conclusive authority against the defendant on the proposition urged in his behalf.

Previous to the enactment of the Code of Civil Procedure, it was provided by statute that if a person should be convicted of the crime of perjury, he should not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him should be reversed. 2 R. S., 2nd Ed., 567; Sec 1. Sub. 3. This legislation proceeded upon the understanding that in the absence of such' a conviction the evidence of the witness might be taken. And a much broader principle than that applicable to this subject has been now adopted by Sec. 832 of the Code of Civil Procedure, for that has provided that a person who has been convicted of a crime, which will include that of perjury, is, notwithstanding the conviction, a competent witness in a civil or criminal action or special proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his own cross examination. This section necessarily repealed and abrogated the provision already quoted from the preceding statutes, and it has restored the competency of a person as a witness who before was incompetent by reason of his conviction of á felonious criminal offense. Andasaperson previously convicted has been in this manner declared to be competent as a witness, it follows from the enactment that he cannot be held incompetent because of the commission of this crime, when no *438conviction as a matter of fact has taken place. It would be little less than absurd to hold a witness to be incompetent or to require his testimony to be excluded from the consideration of the jury, where he had been convicted of no criminal offense, and to hold him competent in case such a conviction had taken place. The theory and principle on which this enactment was made, is, that in the absence of a criminal conviction, the evidence of the person was entitled to be taken and submitted to the consideration of the jury. And this enactment was introduced for the sole purpose of rendering a person who had in fact been convicted equally competent with the other as a witness. The position taken in behalf of. the defendant, that the evidence of this witness should have been withdrawn from the consideration of the jury, is accordingly considered to be incapable of being legally supported.

In the testimony given by him before the Senatorial Committee he had a strong motive for his own protection inducing him to make this false statement. No disclosure • had then been made by either of his associates concerning the combination stated to have been made between them, or of the money which had been received, inducing and rewarding their action. At that time they stood together affirming their innocence of the charges made against them and other members of the Board of Aldermen. And it was not until a disclosure of their misconduct by one of their number had taken place that he concluded to retract the evidence he had given, and to give the testimony which he did upon this trial and, with some discrepancies, upon two preceding trials. This state of facts presents a probability at least in favor of the truth of his evidence, for the motive which .would impress itself upon his mind would be to conceal the offense he and the associate Aldermen had agreed to, and, in fact, did commit. And the strength of that motive, considering the infirmities of human nature, might then well be sufficient to induce him to make a false statement under the obligations and solemnities of an oath. And there is a further probability that in retracting that statement and making one *439-directly different, as this witness did, that he had finally been induced to do so with the design of disclosing the truth.

In the course of his examination he stated the fact to be that the two sums of five thousand dollars which were paid to him, were paid in large bills; that they were of the denomination of thousands, five hundreds and, he thought, some hundreds and fifties. The last of the meetings, the witness testified, took place in October, and the first payment of five thousand dollars received by him shortly after that time, and in January or February he received the other sum ■of five thousand dollars. Early in February of the same year he loaned the sum of eight thousand dollars to a friend of his, engaged in and carrying on business on Fulton Street in the City of New York, and in making that loan testified that he paid out these large bills. The business was stated by him to have been transacted on behalf of the firm of Reed & Carnrick, by Thomas B. Brown who was in their employment. And the testimony of Brown, as a witness, was that the bills which were received were large bills, mostly of the denomination of a thousand dollars. This evidence did have a tendency to corroborate the testimony of Fullgraff, and so did the proceedings of the Board of Aldermen after the information was given that the money had been put up and awaited for its distribution the action to be taken on the petition of the Railroad Company. Those proceedings characterized the conduct of. the witness and his associates, and at least some others acting with them, as that of men who had been unlawfully influenced. The hearing, preceding the passage of the resolution on the 6th of August, was formal and without effect in the way of delaying the consummation of the proceeding, and so was the action of these members of the Board in what was done after the resolution was vetoed, as it was by the Mayor on the 18th of the same month. That veto prevented the resolution from taking effect, and deprived the Railroad Company ^of the consent it, for the time, had secured of constructing and operating its railroad in Broadway. And a suit was then brought in behalf of John H. *440Lyddy against the President and other members of the Board of Aldermen, restraining them from granting the desired permission and consent. This suit continued until the 29th of the same month, when it was settled and discontinued on the payment of twelve thousand five hundred dollars, by a person acting under the authority and employment of the President of the Broadway Surface Railroad Company. Immediately upon that settlement taking place, and in the evening of the same day, a call was circulated and subscribed for a meeting of the Board of Aldermen on the following morning at the hour of nine o’clock. This was an unusual hour for convening the Board, and the notice given for the purpose was entirely unreasonable. For that reason it was held in the General Term of this Department when the application was made for the appointment of commissioners to-report as to whether the Railroad should be constructed, that the consent and resolution adopted at this meeting was without authority and void. And upon that subject no difference of opinion existed among the judges. Extraordinary means were taken to obtain the attendance of absent persons, one in New London, another on Staten Island, who were friendly to the concession of the right to construct the railroad. The proceedings, from the manner in which they were set on foot, and carried into effect, were entirely inconsistent, with any just sense of the obligations that the persons engaged in them were under in the performance of their official duties.

In November the resolution was again adopted conceding to the company the right to construct and maintain the railroad. This resolution went again before the Mayor and was-vetoed by him the same as it had originally been. His vetoes were communicated to the Board by messages accompanied by letters and newspaper articles strongly condemnatory of the action of these Aldermen. And the statement was made to them that the franchise for the street could be sold for the sum of one million of dollars in addition to the percentages required to be paid to the city by the act of 1884. But not *441withstanding all the information given and the arguments made use of, the resolution was finally adopted over the veto of the Mayor on the 5th of December, 1884, by a vote of 22 to 2 of the Board. These proceedings as they were disclosed by the evidence upon the trial were reckless and shameless, and the natural inference from them is that they would not have taken place in the manner in which they did, had it not been for the fact that the testimony of this witness Fullgraff was substantially true as he gave it upon the trial. Certainly the tendency of these facts as well as the evidence given by the witness Brown was sufficient to justify- the court in holding that the evidence of Fullgraff was proper to be considered and weighed by the jury. *People*v. Jaehne, 103 N. Y., 182 ; 4 N. Y. Crim. Rep., 478. And if they found it to be truthful,, as under these circumstances they very well might, that would support the first important fact required to make out 'the charge contained in the indictment.

The other and more important fact for the defendant is-whether the evidence sufficiently established his concurrence or confederation in this unlawful proceeding to allow the jury to find the fact against him. To so far prove this fact as to permit the jury to consider the evidence, it was shown that for at least thirty years this defendant had been anxious to acquire the right to construct and operate a railroad through Broadway. He was also interested in two companies-one of which at least would be vitally benefited by this right and very greatly injured if it should be conceded to ‘some other railroad company. For the object of securing this-right he was-in Albany during a portion of the session of the Legislature in the year 1883. A General Surface Railroad Bill was at that time before the Legislature, but in its provisions it excluded from the streets of the City of New York upon which such a railroad could be constructed, Broadway and Fifth Avenue. In case of its passage in this form, that would have defeated the hopes and desires of this defendant, He accordingly employed counsel to aid and assist him in obtaining such a change in the bill as would exclude Broadway *442from the exception, and the efforts of the counsel were strenously directed to that end. They, however, failed of success and the bill was passed by the Senate and the Assembly containing the exception of these streets. The defendant is then stated, by the witness Pottle, who was an engrossing clerk of the Legislature, to have sent for him and upon the occasion of the interview afterwards taking place, he desired the witness to change the bill in such a manner as was indicated by him, the witness stating the defendant’s request to be that Broadway and Seventh Avenue should be inserted in the Act. The witness declined substantially to make the change, and he was then, it is stated desired by the defendant to produce the bill and hand it to him, which was also declined, although an offer of a pecuniary reward was at the time made to accomplish either of these results. This evidence tended to establish the intense eagerness of the defendant to secure the passage of the law, or a fabricated change in it that would enable him to avail himself of the right to construct a railroad in Broadway, And after he failed in obtaining either result in this manner, counsel was employed by him to appear before the Governor and resist the approval of the law by the Executive. The ■counsel so employed directed his '"efforts and arguments to that end, and they proved to be successful, for the bill was disapproved by the Governor.. During the next session the act of 1884 was introduced, containing no exception of these streets as was contained in the bill of 1883, and the defendant interested himself to promote the passage of that act, and for that purpose also employed to aid and assist him the witness, Edward R. Phelps, who had contributed to his defeat during the session of 1883. This employment was made under an agreement with Phelps that he should be one of the incorporators in the company afterwards to be formed to construct and operate a railroad in Broadway. And by their joint efforts and efforts of their counsel, the bill was enacted and received the sanction of the Governor. But in the organization of the corporation, the witness Phelps was not included as a corporator and was greatly dissatisfied with the proceeding *443of the defendant resulting in his omission. This, however, was afterwards settled by the defendant with Phelps, by paying him the sum of fifty thousand dollars. These facts, together with others disclosed by the evidence, to which further allusion is not considered necessary, sufficiently sustain the conclusion that the defendant was willing to resort to extreme, as Avell as unlawful, measures to obtain the consent secured by him for the construction of the railroad, and render it probable at least that himself and his associates co-operated with the Aldermen favorable to his enterprise in an unlawful manner to bring about the result which was finally secured.

It appeared by the evidence of Fullgraff that it was at one time proposed in the meeting of himself and his associates that the money to be divided between the Aldermen voting for the measure should be placed in the hands of Moloney, who was a reading clerk of the Board, and is one of the defendants charged with crime by this indictment. That disposition was not made of the money, but the proposal was evidence of the fact that he was considered to be accessible for carrying out the designs and purposes of the combination. And it was made to appear by the- evidence that Moloney,, before the vote taken upon the resolution or report of the Committee on the 6th of August, 1884, was in the habit of meeting with the defendant and others named in the indictment, at the office where the business of the Broadway Surface Railroad Company was made the subject of attention and consideration. No reason appears explaining the fact of his attendance there other than the probability that he was acting as the representative of the associated Aldermen and conferring with the defendant and his associates concerning the concession or permission desired to De secured for the construction of this railroad. The circumstances were such as justly to arouse this suspicion and induce the jury to believe that he visited the meetings of the persons interestedin this and the other street railroads which would be benefitted by the Broadway road, to arrange and perfect the terms on Avhieh the votes of the majority of the Aldermen were to be *444secured in favor of the defendant’s company. This presumption is further extended and matured by the fact proved by the witness, Robert E. Dowling, who, on the 5th of August, 1884, received a paper from the defendant to be taken to the place of meeting of the Board of Aldermen and there delivered to the defendant Richmond, who was the president of the Broadway Surface Railroad Company, with the injunction, “ Don’t let any one see you giving it to him. Give it tó Mr. Richmond and tell him to give it to Mr. Moloney.” The witness looked at the paper while it was in his possession and gave such a description of it as left ground for believing that it was the document the Aldermen were expected to adopt giving permission for the construction of this railroad. And such seems to have been the understanding, at the time, of Mr. Richmond, for he declined to receive it, and expressed himself as disapproving the action of the defendant in sending it personally to him, and directed Dowling himself to hand it to Moloney, who was in another room, and that was then done by the witness. These facts are not reconcilable with any other view than that the defendant was engaged in endeavoring to influence these Aldermen and to promote and complete his object by the intervention of Moloney.

It further appeared that in the month of July, 1884, the Broadway and Seventh Avenue Railroad Company, which was vitally interested in securing this privilege from the Board of Aldermen for the Broadway Surface Company, issued a ser-ies of bonds, secured by a mortgage, for. the sum of $500,000. The object of that was stated to be that it would be necessary for this company, in consequence of a contract made with the Broadway Surface Railroad Company, to purchase lands, enlarge its depots and extend its facilities.

An application was made to an engraving Arm on the 19th day of July to engrave these bonds, and more time was asked by the engravers than the defendant Foshay, who was the president of the Broadway and Seventh Avenue Railroad Company, was willing to allow, and the time was so far reduced at his solicitation as to secure the preparation of the *445bonds in seven days.' These bonds, after they were engraved, were executed by the proper officers of the Seventh Avenue Railroad Company, and were negotiated, together with 75 bonds of the Broadway Surface Railroad Company, by an agent employed by the president and treasurer of the Seventh Avenue Railroad Company, and the sum of $500,000 was raised upon them. In negotiating the bonds, checks were declined and the money was obtained in large bills, many of them similar to the denominations mentioned by the witnesses Fullgraff and Miller. This sum of money was in this manner secured before the action taken by the Board of Aldermen in. the early part of August, 1884, and the fact that Fullgraff and other Aldermen appeared to have bills in their possession corresponding with the bills secured from the negotia tion of these bonds, was a circumstance certainly tending to create the conviction that the money received for them went afterwards into the hands of the Aldermen conforming their action to the desires and wishes of the defendant. This inference is also strongly maintained by the fact that no part of the money raised upon the bonds appeared to have been used in the purchase of lands, or in enlarging the depots, or extending the facilities of the Seventh Avenue Railroad Company. And the fact that the defendant himself gave no account of about $400,000 that went into. his hands, when he was examined before the Senatorial Committee, has a very decided tendency, to say the least, in the same direction. For, if he had used the money in any lawful enterprise, it is incredible to suppose that he would not at that time have been willing to give a substantial account, at least, of what he had done with it. A further fact, conformatory of the same view, was the circumstance that the defendant himself proposed to a meeting of the Board of Directors of the Broadway Surface Railroad Company to construct and equip the railroad and pay all the expenses incurred or to be incurred, in consideration of all the bonds and all the stock of the company. That was accepted by a vote of the Directors, who acted without further inquiry or discussion, as the Board of Directors of the *446Seventh Avenue Railroad Company did in resolving upon the issue of the series of $500,000 in bonds, on which that amount of money was raised. The stock of the Broadway Surface Railroad Company consisted of 10,000 shares of $100' each share, and, under this resolution, 9,520 shares were passed over to the defendant. And so were two series of mortgage bonds upon the railroad and property of the company, the first amounting to. the sum of $1,500,000, and the second to the sum of $1,000,000. These shares and bonds were received by him in consideration of his proposal to construct the railroad for a distance of probably less than, and certainly not exceeding, three miles. The evidence given upon the trial tended to establish the fact that but a very small part of the money represented by these shares of stock and these bonds would be required to construct, equip and maintain the road and pay the expenses mentioned in the proposal. But they were all conceded and turned over to the defendant, practically giving to him, as the evidence probably indicated, four-fifths of their amount beyond any consideration whatevei^being received by the company. This circumstance tended to show the fact to be that he was the prime mover in all the proceedings which have been mentioned, and determined to accomplish a favorable result without reference to the means which might he employed to bring about that end. But the evidence afforded by these facts against him tending to implicate him with the action of these Aldermen in raising and paying to them the precise amount of money which they required, did not stop here, for, after the action of the Board on the 6th of Augfist, 1884, a conversation is stated to have taken place between himself and the witness, George V. Powell, who had previously been in the employment of the company, endeavoring to obtain the consent of the property owners to the construction of the railroad.'

This witness states that the fact of the Mayor having ve toed the favorable resolution which had already been passed by the Board, was mentioned- in their conversation, and that in that conversation it was in substance stated by the' defend*447ant that the resolution would be passed over the Mayor’s veto for the reason that the defendant had the Aldermen fixed. There was some, but no very great, discrepancy between this statement of this witness and the evidence given by him before the Senatorial Committee as it was stated in the omission to use the word “fixed,’' his statement there being that the defendant informed him that it made no difference, it would be passed over his, the Mayor’s, veto. Upon further examination of the witness, however, he testified that he recollected that this word “ fixed ” was used by the defendant, but he was in doubt as to the manner in which that use was made. It was also shown that the defendant personally interested himself in securing the special meeting of the Aldermen on the morning of the 30th of August; that in the preceding evening he called upon Pierson, one of the Aldermen, and notified him that the Board was to meet the next morning at nine o’clock, and requested him to meet Moloney,, who had charge of the call, at half-past eight o’clock, on the corner of Fifth Avenue and Twenty Third St.,, and sign the call, which Pierson states that he did. The case is not without further evidence, but not so direct and important as that which has been mentioned, indicating the probability that the defendant was instrumental in obtaining the concession of this privilege from the Board of Aldermen by corrupt means, and the promise of, and use of money, as the facts were stated in the testimony of Fullgraff.

In the course of the cross-examination of the latter, he testified that he voted for the resolution from a sense of duty, and believing that the interests of the public would be promoted by the construction of this railroad. And upon that evidence it has been insisted by the counsel, who have so ably represented the defendant, that the case was not one- of bribery, but rather of extortion on the part of the Aldermen themselves. But the further testimony of the witness in which he stated that he was influenced in his vote by the promise and expectation of the money which was to be paid, sufficiently meets this point to justify its submission to the jury.

*448Upon the whole case there was evidence as to each material branch of it, which the court could not withhold from the consideration of the jury, and its decision to submit" the case as it was to them was fully supported by the law as well asthe testimony. The offense charged is one in which the parties concerned in it always seek concealment of their acts and endeavor to avoid discovery and detection; and when it may be made out upon a trial in a court of justice it must be mainly dependent upon circumstances as it was in this instance. These circumstances were such as to point directly to the strong probability that the charge was correctly made, and together with the circumstance that the amount required by the Aldermen was precisely the same as that raised by the sale of the bonds, warranted the jury in arriving at the conclusion which they did by their verdict.

In the examination of the witness, Fullgraff, he was asked whether in June, 1884, he made any agreement or promise to vote for the Broadway Surface Railroad Company’s petition for a road on Broadway,, for money. To that the counsel for the defendant objected on the ground that it was asking the witness whether in fact an offense had, or had not, been committed, and that the question should be directed to a specific conversation or transaction, and that it should be first shown whether the conversation or transaction was had with the defendant or some other person. The court overruled thes.e objections and allowed the evidence to be given, to which an exception was taken, and the witness answered, “ I did.” While this objection was dwelt upon by the counsel in the argument as an erroneous ruling of the court, it is not necessary to consider whether that was so or not, for the witness was afterwards examined both on the part of the prosecution and the defense minutely as to what was said and done. And the gatherings of the Aldermen, their conversations and resolutions were all given with great particularity, and the answer to this question consequently could in no manner have prejudiced the defendant in any of his rights.

It was also objected that the statements made in the meet*449ings of these Aldermen should not have been received as evidence upon the trial. But. these were not mere conversations between the Aldermen who were gathered together on these different occasions, but they were negotiations and arrangements by which a definite understanding and agreement was reached as to what the vote should be on the petition of the railroad company, and what consideration they could expect in the way of money to secure such vote. What was proved was evidence to establish the agreement through and under which the witness Fullgraff was to receive the money mentioned in the indictment, and which, according to his testimony, was carried out in the future proceedings of tlie Board of Aldermen. It has been urged in this connection that the testimony was received, in part at least, if not wholly, under the announcement made by the judge presiding at the trial, that any evidence would be admissible against the defendant that could be received against Fullgraff if he was on trial. And, to a certain extent, and perhaps as far as the learned justice intended to go, this was a correct ruling. For direct evidence sustaining the charge that Fullgraff had entered into the agreement which is stated to have been made with his associates to vote in the manner in which he did, was so far evidence against the defendant indirectly, for it tended to make out one of the grounds upon which the indictment rested. To that extent the ruling seems to have been free from objection, and no evidence appears to have been received upon the trial under this ruling, beyond that which was appropriate to this object.

It was also objected that the statement made hy De Lacy that the money was up, should not have been received. But this objection certainly cannot be sustained, for it was important information communicated to Fullgraff by one of their number, having a material relation to and explanatory of the subsequent action. They had agreed to vote in favor of the concession of the right to lay the railroad through Broadway for this sum of money and it was important evidence indicating the inducement to the action of Fullgraff at *450least, to prove the fact that he understood, or was informed that the money had been put in such position as to be accessible to him after his vote had been given. It was. evidence tending to establish the motive by which he acted in the proceedings afterwards before the Board of which he was a member. The testimony concerning the conversation with Keenan, one of the defendants in the indictment, was equally admissible; for he was the agent whom it was agreed should hold the money for its future distribution, after the promised action of these Aldermen should be taken. And it was given to prove the fact only that Keenan was willing •to do so, and to act upon the simple assurance that “ it was all right.” These were integral parts of the transaction through which the Aldermen were led to bind themselves by this unlawful agreement to support the application of theBroadwayrSurface Railroad Company ; and it had a direct tendency to indicate the motives by which they were actuated in giving their votes, and that such motives were not the extortion of money from the company but the sale of their votes and influence for this consideration. Besides that* these parties were all apparently acting in conqert, as the case was finally proved to the satisfaction of the jury, and these statements were in the nature of acts, and admissible as evidence under the rule establishing the right of the prosecution to prove the acts and declarations of confederates against any one of their number, who may be indicted and placed upon trial.

No more need be added as to the admissibility of the evidence of Brown concerning the loan made by Fullgraff to Carnrick & Reed. For as that was evidence tending to corroborate the testimony of Fullgraff, it was legally received upon the trial. There was a coincidence between the character of the bills which were received by Fullgraff from Do Lacy, who appears finally to have acted in the distribution of the money and those used to make the • loan, which entitled this evidence to be admitted for the consideration of the jury. It is true that it was in no manner 'conclusive, but *451it was a circumstance connected with the others having a bearing upon the probabilities of a part of the charge contained in the indictment.

An exception was also taken to the allowance of the evidence given by the witness Phelps, concerning the fact that he resisted the passage of the bill for Surface Street Railroads in 1883, and upon an agreement with the defendant that he should become an incorporator in the Broadway Surface Railroad Company, aided and assisted him in obtaining the passage of the Act in 1884. Bat this evidence had a plain tendency to prove the great eagerness of the defendant for the passage of a law which would enable him, through the means of a corporate organization, to acquire the right to build and operate a railroad hr Broadway. It was a subject that he apparently never lost sight of, but constantly directed his mind and his energies to bring it into successful legal existence. And as he was actuated by the same design continuously down to the time when he obtained from the Board of Aldermen the concession which he did, this evidence was directly connected with the transactions referred to in the indictment. And as such it was admissible as tending to prove the fact that his interest and desire were such as probably to lead him to purchase by the unlawful use of money what he might consider it was doubtful he could obtain in any other manner. The facts to which the evidence of this witness was directed exposed the state of mind by which the defendant was influenced, and within the rule which will presently be considered, they were clearly admissible against him upon this trial.

Little time is required to be devoted to the consideration of the objections made to the introduction of communications to the Board of Aldermen after the 30th of August, 1884. That evidence has already been considered. It clearly had a bearing in the way of maintaining the probability that the confederated Aldermen were actuated by the motive, expectation and design mentioned by Fullgrafli in his evidence as a witness. They had a tendency to sustain such evidence, and *452for that reason, having been brought to the attention of the Board of Aldermen as they were, were properly received upon the trial of the indictment. Indeed, any fact or circumstance tending to maintain the probability of the truth of Fullgraff’s statement was legal evidence which the court was bound to receive, and this was of that description.

The admission of the testimony of the witness Pottle a reading clerk of the assembly was very strenuously objected •to, and it has been likewise resisted upon the argument of the appeal. His evidence has, in part, already been mentioned in considering the question whether the case should have been submitted as it was to the jury. The proposal was to prove that the defendant offered Pottle the sum of five thousand dollars to add the words “ Broadway and Fifth Avenue” to the bill, thereby permitting a horse railroad to be constructed upon such streets, when it otherwise could not be done; and that when the witness declined that proposition, the defendant offered him the same amount if he would give him the original bill, which had then been passed. This offer of proof was objected to upon several distinct grounds, but the one now relied upon is that it tended to establish the commission of another crime by the defendant. And such, no doubt, was the effect of the evidence ; for the witness stated that these two offers were made to him, the first for the alteration of the bill, the second for the bill itself, by the defendant. But while the evidence did tend to establish the commission of another crime in this manner by the defendant it also had a tendency to establish the crime charged against him by the indictment. It was in the same relation to it as was the testimony of Phelps for it tended to show that the defendant was determined, as far as he might be able to do so, without being particular as to the means, to obtain the right to build a railroad in Broadway. That was his overpowering motive, as it had been during many preceding years of his life, and it continued to be so until this right or privilege was secured. And its existence was direct evidence sustaining the probability that he would *453be willing to purchase it, as it is alleged he did, before he would be defeated or frustrated in accomplishing the end he had in view. It distinctly presented the motive which, to a great extent, had actuated him through his life, and which, there was good reason for believing, was never lost sight of, but continued to influence his conduct in the same manner that it illustrated it in this instance, through the proceedings of these Aldermen, by which the privilege was finally secured. And where that may be the character of the evidence objected to the courts, are bound to receive it upon the trial of the alleged offender. And that in creating it he involved himself in another criminal charge is no good reason why the evidence should be excluded. That was the fault of the defendant himself. He was not called upon under this indictment, either in form or effect, to answer what did transpire between himself and Pottle as another criminal charge, but he was simply called upon by means of the evidence to avert its effect so far as it tended to illustrate or prove the motive existing in his mind. That was all the relation it had to the charge contained in the indictment and it was all the use which was made of it upon the trial. A prominent point included in the prosecution was the motive operating upon the defendant’s mind. It was charged that he was extremely desirous of obtaining this franchise. And if he was, that fact lent some countenance to the further charge that he had resorted to this illegal mode of securing it. That was a pertinent subject of inquiry, and all this evidence was appropriate to its development, aiding and assisting the jury in reaching the conclusion which they did. Upon this subject of motive or intent it has frequently been held that other transactions tending to prove its criminal existence may be given in evidence against the defendant. *Weyman*v. People, 4 Hun, 511. *Mayer*v. *People,*80 N. Y., 364. *People*v. *Shulman,*Id. 373, note, where Judge Eabl delivering the opinion of the court used this language: “ But it is said that the transactions proved here were too remote and not sufficiently related to and connected with the principal transac*454tion to be competent evidence. It is obviously impossible to lay down any general rule limiting the time within which such transactions must have taken place in order to render proof of them competent. It is generally said in the cases that they must have occurred about the same time as the commission of the alleged crime, but that is quite indefinite ; and in some of the reported cases proof of them has been received although they occurred months before and after the time of the crime. Each case as to the application of this rule must depend largely upon its own circumstances, and not unfrequently the limit of them must rest entirely in the discretion of the judge presiding at the trial.” Id. 376. The criterion ordinarily followed is, whether the defendant in the different transactions appears to have been actuated by the same motive or intent, and if he does, one may be proved to exemplify and sustain the existence of the alleged intention leading to the other. In *People*v. *O’Sullivan,*104 N. Y., *481; 5 N.*Y. Crim. Rep., 235, it was held to be competent upon an indictment for a rape to prove a preceding assault by the defendant on the prosecutrix for the same purpose. And in *Weed*v. People, 56 N. Y., 628, the general rule was followed, that evidence tending to prove any fact constituting an element of a crime charged in an indictment is competent, although it may tend to prove the person guilty of some other crime. This evidence had a tendency directly to sustain á distinct element in the case set forth by the indictment. And *Commonwealth v.*Tuckerman, 10 Gray, 173, 200 : *Commonwealth v.*Jackson, 132 Mass., 16; *State v.*Lepage, 57 N. H., 245 ; *Commonwealth v. Abbot,*130 Mass., 472, and *Commonwealth*v. *Merriam,*14 Pick., 518, support the same view. What is required, and all that is required to entitle the court to receive and act upon it, is that it shall have a direct bearing upon the development of the case presented by the indictment. And *Shaffner s. Commonwealth,*72 Penn., 60, is not in conflict with, but concedes the correctness of this principle. And so does the case of *Commonwealth v. Bradford,*126 Mass., 42, and also the case of *Commonwealth v. McCarthy,**455119 Id. 354. It is subject however, to the qualification that the evidence tending to establish the commission of another offense shall be so far limited and restricted by the court as to leave the jury only at liberty to use it to discover the motive or intent actuating the accused. *Commonwealth*v. *Shepard,*1 Allen, 575, 581-2; *Commonwealth*v. *Choate,*105 Mass., 451; *Commonwealth*v. *McCarthy, supra.*

And the same qualification was attached to the rule in this state in *Mayer*v. *People,*80 N Y, 372. And the principle permitting the admission of this character of evidence receives the additional support of *People*v. *Wood,*3 Parker, 681; *People*v. *Stout,*4 Id., 71, 129; and *Pierson*v. *People,*79 N. N., 424. At the close of the trial the bearing, weight and effect of the evidence was carefully guarded by the court, for the jury were directed by the justice presiding at the trial only to consider it as showing the extent of the defendant’s feeling, interest and desire. And the statement was then made to them that, “ It is here because it was part of a •conversation tending, like other evidence in the case, to show-motive and desire. So far as it tends to throw any dark shadow upon the character of the defendant, I desire you to •eliminate it from your consideration, and treat it merely as •evidence tending to establish depth of interest, motive and •desire.” That was all that was required by either of these authorities, to guard the jury against any improper use being made of this testimony. It has been said in answer to this position that jurors hearing such testimony would be affected by it, no matter what might be said to them in the way of guarding against such a result. But while such intimations have sometimes been given concerning the trial of •criminal cases, they were much better adapted to periods when intelligence and judgment were not so general as they now are. Jurors are now reading, thinking, and intelligent men, having control of their inclinations and judgments. And when they are directed under the solemnity of their oaths to restrict a particular species of evidence exclusively to one consideration or aspect of the case, it may not unreasonably *456be supposed that they will have the ability as well as the disposition to comply with the direction. That there has been progress made in this branch of the law is evident from the form of the present statute defining the competency of jurors, and allowing them to hear and determine a criminal charge even where they may have formed or expressed an opinion, provided they can lay that opinion out of sight and receive the evidence and dispose of the case without being affected by it. The law assumes the existence of this ability to control the action of the mind, and so do the authorities to which reference has been made. The ruling has been further assailed because the offer was regarded by the defense as. specious and insincere and made for the purpose of laying before the jury the fact of an attempt by the defendant to commit another offense. If that were the case, within the principle sustained by *Coleman*v. People, 55 N. Y., 81, the ruling would necessarily be an improper one. But there is no evidence in the case which would warrant the conclusion being adopted that the proof was offered for any other purpose than that disclosed during the trial, which was to establish the fact of the defendant’s inclination, interest and desire to obtain this franchise. The case of *People*v. Gibbs, 93 N. Y., 470 ; 1 N. Y. Crim., 472, has really no application to this appeal, for there the assault which was allowed to be proved was upon a different person, and it had no relation whatever to the one for which the defendant was then upon trial. The objections are considered therefore to have been properly overruled and the evidence legally received, as it was limited in this manner by the charge of the court.

Proof of the answers made by the defendant in his examination before the Senatorial Committee in the year 1886, was in like manner objected to on the part of the defendant.. The objections were overruled and the defendant’s counsel excepted to the decision, and these answers were, in part, read by the counsel for the prosecution, and the residue after-wards by the counsel for the defense. As the answers were given' before the Senatorial Committee they tended to *457establish the fact that he had untruthfully answered questions propounded to Mm, and that, instead of disclosing, as it was reasonable to assume he had the ability of doing, what had been done with a large amount of money wMch had passed through Ms hands during the period referred to in the indictment, he denied having any recollection of its disposition. TMs evidence afforded ground for argument that the defendant had used these moneys in a manner .which he was unwilling to admit; that instead of being applied and appropriated to some lawful purpose or business, they had been used to bring about an illegal result, and probably the one charged to have been secured by him in the indictment. TMs evidence is urged by the counsel for the defendant to have been improperly received upon the trial, for the reason that by Sec. 6 of Article 1 of the Constitution of the State, it has been declared that no person shall be compelled in any criminal case to be a witness against Mmself. And this provision of the Constitution having been liberally construed in favor of the accused, has been held to include all cases where he may be compelled to furnish or supply evidence, which may be used to his injury afterwards upon any criminal trial or proceeding brought against himself. *Boyd*v. *United States,*116 U. S., 616 ; *State*v. *Froiseth,*16 Minn., 296; *People*v. *Mather,*4 Wend., 230; *People ex rel. Hackley*v. *Kelly,*24 N. Y., 74, 82.

The question accordingly arises whether these answers given before the Senatorial Committee were compulsorily extorted from the defendant. As a matter of fact they were not; for the proceedings before the Committee show that these answers were all voluntarily given by the defendant. There was no objection on his part that he could not answer the questions without Ms answers having a tendency to criminate himself, and no ruling by the Committee that he must give such answers. But he was simply brought before them by their summons' and the examination proceeded without any objection whatever, without interposing any privilege of the defendant by which he was entitled to be shielded or *458protected from making any answers, which in any other trial ■or proceeding would have a tendency to establish the existence of a criminal charge against him. It is not necessary, however, that the defendant should have invoked this protection from the Committee before he made his answers to entitle him to the exclusion of the evidence, if in fact he was by statute compelled to answer the questions propounded to him, for that compulsion may as well be created by statutory authority requiring the witness to answer, as it would be by a direct ruling on the particular occasion compelling him to answer. So that while his evidence before the Committee appears to have been voluntarily given, so far as a failure to object or claim his privilege would render it voluntary, still, if he was acting under a mandate of a compulsory statute, the ■same principle of protection would apply as would exist if he had actually objected to answering the questions put to him. And it is on the ground of the existence of such a statutory •enactment that the endeavor has been made to sustain the ■objection to the admissibility of the answers of the defendant given before the Senatorial Committee. The statute, and the only statute relied upon as compulsorily requiring the defendant to answer the questions which were then put to him, is Section 79 of the Penal Code of the State, which has declared that: “ A person offending against any provision of any foregoing sections of this Code relating to bribery, is a competent witness against another person so offending, .and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as .any other person. But the testimony so given shall not he used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution.”

And an effort has been made to bring the evidence given *459"by the defendant before the committee within this section of the Penal Code, for the reason that its members were engaged at the time in making an investigation under a resolution of the Senate, and that such investigation was directed to the charge of the bribery of the Board of Aldermen in granting this concession to the Broadway Surface Railroad Company. To give this word “investigation” as it has been used in the section, point and effect in this case, reference has been made to the preceding law contained in Section 8, Chap. 742, of the Laws of 1869. But that does not aid in the construction of this section contained in the Penal Code, for the investigation mentioned in this preceding law was clearly ■expressed and differently described. It was an investigation “ by any committee of the Legislature or either house thereof into the conduct of any member thereof, ” and that is all that was provided for in this respect by Section 8 of the preceding law. The investigation was there particularly limited to an inquiry into the conduct of any member of the Legislature, by either house, or a committee thereof; while in this section of the Penal Code it has not been so applied and has in no manner been controlled in its signification, otherwise than by the context and language of the section itself. It was evidently not intended as a continuation of the preceding ■ law, but it was a new and distinct provision from that embodied in that law. And instead of being designed to perpetuate that legislation, it was probably more expressly intended to carry into effect article 15 of the Constitution of the State, as that was adopted in 1874 and went into effect on the 1st of January 1875. By that section it was declared that “ Any person who shall offer or promise a bribe to an officer, if it shall be received, shall be deemed guilty of a felony and liable to punishment, except as herein provided. No person offering a bribe, shall upon any prosecution of the officer for receiving such bribe, be privileged from testifying in relation thereto. And he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving or offering of such bribe. Any person who shall offer or promise a bribe, if it *460be rejected by the officer to whom it is tendered, shall be deemed guilty of an attempt to bribe which is hereby declared to be a felony.”

The case of the defendant is manifestly not within the language of this section of the Constitution. For while the jury were supported in the conclusion adopted by them that he had both promised and given a bribe, he did not testify either to the giving or offering such a bribe upon his examination before the Senatorial Committee. And it is only when such testimony shall haves been given by the witness, that under this provision of the Constitution it has been declared that the person offering the bribe shall not be privileged from testifying in relation thereto and not to be liable to civil or criminal prosecution afterwards therefor. To exonerate himself under this provision and to be entitled to the privilege provided for in it, if it applied to the case at all, the Constitution has required that he shall first testify to the giving or offering of such bribe. No such testimony was given by the defendant in his examination before the committee, and no such exoneration was therefore secured to him by this language. In his answers before the committee he expressly denied having either promised to give, or, in fact, to have giveii a bribe to this or any other Alderman, and for that reason his testimony did not bring him within this provision of the Constitution. The objection which has been made, must therefore rest upon the effect to be given to Section 79 of the Penal Code.

The connection in which the word “ investigation ” has been used in this section, leads directly to the conclusion that it was designed to relate exclusively to proceedings in court, or before a committing officer, for it has required the offending witness to attend and testify only “ upon any trial, hearing, proceeding or investigation ” in this connection subjecting it to substantially the same signification as the preceding words are entitled to receive. And they clearly include no other than such proceedings as have just been mentioned. It is simply a continuation or a. repetition of what has before *461been declared for more abundant caution, and to include only-all legal proceedings carried on in courts of justice or before judicial officers. It is a general rule of construction applicable to statutes in this manner, that the words repeated and continued, as these have been, shall be held to relate to the same subject-matter or course of proceeding. *Corning*v. McCullough, 1 N. Y., 47, 68-9; *Sands*v. *Hill,*55 N. Y., 18, 28; *Gleadell*v. *Thompson,*56 Id., 194, 197; *Me Gaffin*v. *City of Cohoes,*74 N. Y., 387, 389.

The subject evidently within the legislative mind, was a trial, hearing or proceeding upon a particular charge. And that was the subject which it was intended to include in this additional word “investigation,” for it was not used independently to include a different or distinct class of cases or proceedings as the words were in the act of 1869, but in connection with the preceding language which it was intended to some extent to characterize and enlarge. And.it may be very well so limited, and full effect still be given to the preceding words “trial,” “hearing,” “proceeding.” For it will then have ample room for all the effect to which it may be entitled, including in that manner investigations properly so called before a grand jury, or before committing magistrates, or coroners, each of which is a legal investigation of a criminal charge, and a proceeding or hearing in the nature of a preliminary trial. That these words were designed to be restrained in this manner is further apparent from the preceding portion of the same section, for they relate to the trial or proceeding of some other person than the witness who may have offended against the provisions of the statute. And the only obligation which has been created, requiring a person offending against one or more of the preceding provisions of the Code, is to testify against another person. That is, another person besides himself so offending. And it is to testify in that manner, and only in that manner, upon a charge against another person, that the offending witness may be compelled to attend and testify on any trial, hearing, proceeding or investigation. And it is only in cases of giving *462such testimony against another person, that it has been provided that the testimony so given by the witness shall not. be used in any prosecution or proceeding, civil or criminal* against himself. To derive the legislative meaning from the section, it is essential to examine and consider together all of its provisions. Neither can be rejected as not entitled to consideration. And, by considering the entire section together, it is manifest, although perhaps somewhat obscurely expressed, that the proceeding in which the witness is compelled to attend and testify is to be not only a legal proceeding, but it is to be a proceeding against another person charged with having offended against one of the preceding provisions of the law, by way of a trial, hearing, proceeding or investigation of that specific charge, and no other, and no less than that. And this construction conforms to the section of the Constitution already quoted, and section 4 of the same article, which have been clearly limited by their language to a legal prosecution.

Beyond these considerations is the additional circumstance that the legislature provided by sections 68 and 69 of the same Code for the precise cases of investigations before either house of the legislature, or any committee thereof. And having so expressly provided for that proceeding, it cannot be reasonably supposed that it was intended to include it again in the provisions made by section 79. For if that had been the intention, and the word “ investigation ” as used in this latter section was intended to include proceedings before the legislature, or a committee of either house, there clearly would have been no occasion whatever for the enactment of these preceding sections. Arid it is not to be supposed that the legislature would uselessly have included in section 79 a subject-matter already fully provided for by the preceding sections of the same Act. The presumption on the contrary is that distinct and different subjects were made the objects of these different enactments, and that is precisely what has been done, for by section 68 provision has been made for summoning persons to attend before the legislature* *463or any committee thereof. And the next section has declared that “ a person, who, being present before either house of the legislature, or any committee thereof authorized to summon witnesses, wilfully refuses to be sworn or affirmed, or to answer any material and proper question, or to produce upon reasonable notice any material and proper books, papers or documents in his possession or under his control, is guilty of a misdemeanor.” This section fully includes the investigation made before this Senatorial Committee. It was not an investgation or proceeding against any person, but its object was to discover facts and obtain information which might lead to legislative action. • So far, it was within the province of the legislature. But to have extended it to a proceeding against the defendant himself, on a criminal charge, or against another person, was beyond its province or authority as that has been defined in *People ex rel McDonald*v. Keeler, 99 N. Y. 463; 3 N.Y. Crim. Rep. 348. That case has also determined that on such an investigation before a legislative committee, the person examined as a witness is not entitled to counsel, as he manifestly would be if it was a legal proceeding or investigation against himself. For by section 6 of article 1 of the Constitution a person proceeded against on a criminal accusation is entitled to be allowed counsel to appear for and defend him. And this provision, although in its language applicable only to a trial, has been liberally enlarged by construction so-far as to include proceedings before a court-martial. *People ex rel. Gailing*v. *Van Allen,*55 N. Y. 31. And it may in the same spirit be properly extended to all proceedings where a criminal charge against a person as an accused individual, may be made and heard. The fact, therefore, that counsel is not entitled to appear on behalf of any witness in investigations of tins description, supports the construction already mentioned, that it was intended to confine the provisions of section 79 to proceedings against a distinct person and not to legislative investigations, which are not proceedings of that description. Section 69 applying to and including these investigations, although enacted in broad lan*464guage has not required a persons appearing before a legislative committee to answer question criminating himself, or having a tendency to produce that effect, or exempted him from the use of his answers against him in any futriré criminal proceeding. It has directed in general terms, it is true, that the witness who shall refuse to answer any material or proper question shall be guilty of a misdemeanor. But a refusal to answer a question which may elicit evidence tending to establish a criminal charge against the witness for which he has been provided with no protection by this section, is not a refusal to answer any material or proper question within the meaning of this provision. For the section has not undertaken to deprive the witness of Ms privilege or to exonerate Mm against the consequences of its loss, by declaring that the evidence given by him shall not afterwards be used against him. Such a provision in the law is necessary for the protection of the witness before he can be obliged under it to answer any question which may have the effect of subjecting him to a criminal charge. Without it the constitutional provision applies in its full force in favor of the wit-mess, declaring that he shall not be compelled to be a witness against himself. ’And to oblige him to testify when his testimony may have a tendency to criminate Mmself, it is therefore requisite that the law imposing the obligation shall, at the same time provide that his evidence shall not be used afterwards against him. *People ex rel. Hackley*v. Kelly, 24 N. Y. 74, 83. This section contains no such provision and it accordingly is not to be construed as requiring the witness .to be compulsorily deprived of his privilege by giving answers tending to his own crimination. He is to answer every material and proper question, wMch, under the Constitution, includes only such questions as have no tendency afterwards to criminate him, or subject him to any criminal legal proceeding. The section is to be construed with reference to ■ the fact the Constitution deprives it of any greater effect. .This subject was considered very much at large in *Kmery's Case,*107 Mass. 172. He was a witness brought before a *465legislative committee for examination under a somewhat similar statute. He declined to answer for the reason that his answers might have a tendency to subject him to a criminal proceeding, and he was committed for a contempt in not answering the questions. After his commitment he was brought before the court upon a writ of *habeas*corpus, and it rvas held by the court that he was entitled to his discharge, for the reason that the law could not oblige him to answer such questions in aúsav of the constitutional provision of the state, AAÚthout at the same time specially providing for his protection in such a manner that his answers should not afterwards be used against him. That case is direct and apt in its application to the construction and effect of this section of the Code, and requires it to be so construed as to subject the authority of the legislature, as Avell as its committee, over witnesses brought before them, to the existence and continuation of the Avitness’s privilege to decline to answer any question having a tendency to criminate himself.

That it should be so construed appears to follow from other and more general statutory provisions uniformly so understood. By subdivision 6 of § 143, of the Penal Code, it has been de dared in the same unqualified manner that a person shall be guilty of a misdemeanor who contumaciously and unlawfully refuses to be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatory. The same provision-was contained in 2 R. S., 1st Ed. 207, sec. 10, sub. 5, making it, as the present Code, as Avell as the Code of Criminal Procedure have, a contempt to refuse to answer any legal or proper interrogatory. Sections 619 and 635 of the Code of Criminal Procedure. These provisions, as well as. that contained in section 69 of the Code, by their general language ostensibly include every material or pertinent question that may be propounded to the witness. But they never haAre been construed to have that effect. The construction placed upon them on the contrary has been, that Avhile'the language has been employed in this general manner, the witness is not *466deprived of his privilege by it or compelled to answer, but may insist upon that privilege as a protection against answering any question which he deems to be criminatory in. its effects. And if, after availing himself of this privilege, he is then compulsorily required to answer by any tribunal or committee before which he has been sworn, that compulsion will entitle him to the protection of the Constitution, and prevent his testimony from being used afterwards against him. These laws have always been so administered and carried into effect.

And for that reason as they do not compel the answers where the witness may appear, and without invoking the protection of his privilege, voluntarily gives his evidence, that evidence may be afterwards read against him, although it may have a tendency to subject him to a criminal charge.

The rule upon tins subject was stated in the leading opinion of the court in *Hendrickson*v. People, 10 N. Y., 13, and its correctness was also agreed to in the opinion of Gardner, C. J. It was there held as the law that “It is now regarded as a well-settled rule and recognized in the elementary books, that where a witness answers questions upon examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes. 2 Stark, Ev. 50, Roseoe Cr. "Ev., 45.

Such answers are deemed voluntary, because the witness may refuse to answer any question tending to criminate him. 1 Greenl. Ev. sec. 225. If, however, he should be compelled to answer after claiming his privilege, his answer will be deemed compulsory and cannot be given in evidence against him.” Id. 27.

This states the law of the case applicable to this appeal. The witness was not obliged by any statutory provision to make or give the answers which he did before the committee. And, not being so obliged, if it was his purpose to protect himself against the use of such answers afterwards in a criminal proceeding which might be instituted against himself, it was necessary that he should claim and insist upon his *467privilege, protecting him against the obligation to answer if such answer would criminate him. He did not do so, but voluntarily answered the questions propounded to him bythe committee. And having given those answers voluntarily and without any compulsion of law, or of the committee, they were admissible in evidence upon his present trial under these general rules of law, and particularly under their enunciation and explanation contained in the case just referred to, where it is also added that “ Independent of any supposed authority I do not see how upon principle the evidence of a witness not in custody, and not charged with crime, taken either on a coroner’s inquest, or before a committing magistrate, or grand jury, could be rejected. It ought not to be excluded on the ground that it was taken on oath. That reason would exclude also the statements of witnesses on the trials of issues. The evidence is certainly none the less reliable because taken under the solemnity of an oath. Ho injustice is done to the witness, for he was not bound to criminate himself, nor to answer in regard to any circumstance tending to do so . . . Hor can the exclusion of the evidence depend on the question whether there was any suspicion of the guilt of the witness lurking in the heart of any person at the time the testimony was taken. That would be the most dangerous of all tests, as well because of the readiness with which proof of such suspicion might be procured, as of the impossibility of repudiating it. Besides, the witness might have no knowledge of the existence of any suspicion, so that his mind could not be affected or his testimony influenced by it. It is only when crime is imputed to him and he is examined as to such charge, that there is good reason for treating him as a party to the proceeding. The common law has been as tender of the rights of witnesses as of parties. It is the policy of the common law never to compel a person to criminate himself. That policy secures as well to a witness, as to a party, the privilege of declining to answer. The former is supposed to know his rights ; the latter is to be specially instructed in regard to them by the presiding magistrate. *468But if either fail to avail himself of the privilege, his answer is deemed voluntary and may be used as evidence.” Id. 29-30. And the fact that the witness may be present under the direction of a subposna or summons will not change the application of this rule. *People*v. *McGloin,*91 N. Y., 241 ; 1 N. Y. Crim. Rep., 154, where the substance of the authorities was held to be that “ all confessions material to the issue voluntarily made by a party, whether oral or written, and however authenticated, were admissible as evidence against him on a trial for a criminal offense.” And “ that it was no objection to the admissibility of such confessions that they had been taken under oath from a person attending before a coroner in obedience to a subpoena, upon an inquiry conducted pursuant to law into the causes of a homicide.” Id. 247. And this was again conceded to be the law in *People*v. Mondon, 103 N.Y., 211; 4 N.Y. Crim. Rep., 552. The substance and effect of the authorities therefore is, that where the witness is not in custody on a charge or suspicion of his guilt, and is neither compelled by any statutory provision, nor by the ruling of the tribunal before which his testimony may be taken, to answer criminating questions, but he vol- ' untarily proceeds without objection or claim of his privilege to make a statement detrimental to or inculpatory of himself, that statement may be used as evidence against him in a subsequent prosecution for the offense it may tend to establish. This rule seems to be general and well supported by the authorities and it is directly applicable to the disposition of this point, inasmuch as there was no statutory or other compulsion exercised over the defendant at the time when he gave his evidence before the Senatorial Committee. But the statements were made by him after securing the aid and assistance of counsel, one of whom at least, was permitted to be ..present during his examination. This construction of the law has been resisted as harsh and hazardous to the witness, who may be unable to understand it in that manner. But it is not considered to be so, for, if such inability be conceded, his full protection is secured by his privilege not to *469answer, and insisting on the observance of that privilege in all doubtful cases. The objection now under consideration consequently cannot be sustained but was correctly overruled by the Judge presiding at the trial.

The possession by Aldermen Farley and Miller of large bills after the action had been taken by the Common Council, and by Moloney of two gold certificates, one for a thousand and the other for five thousand dollars, was not improperly allowed as proof on the trial. It at least tended to establish the probable relation between the money in the hands of these different Aldermen and the large bills that were obtained upon the sale of the five hundred thousand dollars in bonds; and as the evidence tended to establish the fact that there was concert of action between these different persons and the persons making sale of the bonds and disposing of the money for distribution, it was within the established rule of law permitting the facts to be laid before the jury as having some probable connection with the charge contained in the indictment.

The law as to cases of this description where there is probable confederacy of action between different individuals in the commission of a crime, some performing one act, others another, to carry into effect what may appear to be a concert of action resulting in the crime, is that what each person in the promotion of the common enterprise may say or do, is admissible against the others. They are circumstances tending to establish the commission of the offense alleged in the indictment, and they are so considered and mentioned in a standard work upon the administration of the criminal law. Wharton’s American Grim. Law 4th Ed., Sec. 2351, 2355. There is ordinarily no other mode in which the commission of the crime of bribery can be established, as a matter of fact. Very large liberty is justly allowed in making the proof by means of circumstances having either a direct or even a remote bearing upon the probability of the truth of 'the charge. And whether it be alleged in the form of a conspiracy between the persons charged, or a mere confederation *470or concert of action is not important. The test is whether the parties charged were probably co-operating together to bring about a particular criminal result. And when that probability has been reasonably well established, evidence may be received of their acts and statements contributing to that end. And it has been so considered in *Kelley*v. *People,*55 N. Y., 565 ; *Place*v. Minster, 65 N. Y., 89; *State*v. *Winner,*17 Kansas, 298. And the cases referred to by the counsel for the people of *Cox*v. *State,*8 Texas Appeals, 302; *Avery*v. *State, 10 id., 210,*and *Hurd*v. *State,*9 *id.,*1, support the same general principle of law. All these acts tended to shed light on the conduct of these parties, and they were connected with the charge in the case by the evidence of Fullgraff and that of the individuals who purchased the bonds and paid for them in large bills of the description mentioned in this evidence.

A further objection was taken to what took place between Miller and DeLacy, when the latter handed the former $5,-000 in bills of this general description. When the bills were handed to Miller, he was told by DeLacy “There is something to buy election tickets with.” And that, according to the evidence of Fullgraff, was one of the objects for which $5,000 were to be first paid over—to defray the expenses of the members of the Board of Aldermen who should be candidates for re-election in the fall of 1884. Miller was asked whether he understood at the time that the payment was on account of the Broadway Railroad Company, and replied that he had no understanding of that kind. He was then asked what his understanding was, which was objected to by the counsel for the defendant, but the court allowed it and they excepted. The witness, however, stated that there was no particular understanding; that there was nothing said about it, which, of course, rendered this ruling of the court entirely harmless. The inquiry was then made of Miller as to what he thought the money was given to him for. The court permitted that to be answered, and the witness not answering this inquiry as it was put, replied that he sup*471posed it was for the Broadway road, “ although there was no contract entered into either by him or myself.” Strictly, speaking, this ruling was erroneous, and an answer to the question should not have been permitted to be given, for what the witness thought in no way arose to the dignity of evidence, as it is defined and received in courts of justice. But while it was erroneous to permit the question to be answered, the answer that was obtained was not responsive to it, and in no manner could have prejudiced the defendant, for a mere supposition of this description would never be accepted or acted upon by the jury as proof indicating the existence of a fact. And the subsequent examination of the witness also laid before them all the facts relating to the payment and receipt of this sum of money, for Miller stated without objection that he, on the second day afterwards, met DeLacy on Broadway and requested him to call at the store of the witness. The next day DeLacy went there, and the witness stated to him, “ DeLacy, here, I have received this money from you, and I says, ‘ I am going to give it to you back.’ He says 1 What is that for ? ’ I says 11 don’t want it.’ Says I ‘ I never would agree to vote for that railroad or any other railroad.’ And, says I, ‘ This money I will give you back,’ .and I gave it back to him.” This interview, as well as what Lad previously taken place between the witness and DeLacy, .sufficiently explained the transaction, so that there could be no mistake and no misapprehension on the part of the jury. They saw precisely from it what had been said and done. And certainly the jury could not, after that, if they would •otherwise have been disposed to do so, have given any effect whatever to the mere expression of the supposition of the witness. In the case of a long and intricate trial, as this was, it may not be unexpected that slight and formal errors will intervene. And if the judgment should be reversed because of the correctness of mere technical objections of this character, the administration of the criminal law in cases of this description must necessarily fail. To prevent that has been •one of the objects of the present codifications of the law re*472lating to criminal proceedings. And to secure that end it has been declared by Section 542 of the Code of Criminal Procedure, that, “After hearing the appeal, the court must give judgment without regard to technical errors, or defects, or to exceptions, which do not affect the substantial rights of the parties.” This was an exception, even if the answer was within it of that description. And as mere supposition of the witness in no respect tended to prove any fact to the prejudice of the defendant, for that reason, under this authority, it is required to be disregarded.

In the course of the trial the prosecution were allowed to prove that Moloney, Keenan, De Lacy, Dempsey and Sayles. were in Canada. The defense excepted to the ruling allowing this proof, but it was given under the announcement of the district attorney that the object was no more than to-show their absence from the state, and the consequent inability to produce them as witnesses upon the trial. The object of this proof, which was given as it was proposed, was to avoid any anticipated or expected argument on the part of the defense that the prosecution should produce and swear these witnesses who would be able to give positive evidence of the facts if a crime had been committed, instead of relying upon the circumstances which the testimony in the case tended to prove. It was not given to establish the fact of flight on the part of either of these persons. And the case therefore is not within *People*v. Stanley, 47 California, 113, but it was solely and only to prove their absence beyond the jurisdiction of the court. And that proof was received by the court, and properly so too. *Pease v.*Smith, 61 N. Y. 477. And beyond this is the further fact to which weight and effect should here be given, that the defendant’s counsel previously proved by the cross-examination of Fullgraff that De Lacy, one of these persons, was in Canada. And having in this manner opened the door to such proof, they could not very well prevent the district attorney from following it up by additional evidence on the same subject, and including these four other persons. *People*v. *Buddensieck,*4 N. Y. Crim. Rep. 230 ; 103 N. Y., 487, 496.

*473No good reason appears in favor of sustaining the objections taken to evidence as to the state of the books of the Broadway & Seventh Avenue Railroad Company, or as to the reports which were made by its treasurer. The object of the proof was in part to establish the probability that the purpose mentioned in the resolution for issuing the five hundred thousand dollars in bonds, was fictitious and designed to conceal the real object and motive which the managing directors of the company had in view. For that purpose it was legitimate proof to show that their proceeds and the distribution of such proceeds were not accounted for in the books of the company. The defendant was one of the directors of that company, having something certainly to do with the management and direction of its affairs. And the absence of a truthful statement of the sale of the bonds and the use and disposition of the money, was a circumstance which it was proper should be introduced in the case by way of evidence, supporting the theory of the prosecution. This business_ was carried on in his interest by his associates. And, if it had been the design to raise the money and use it for the purposes mentioned in the resolution, it is fair to presume as a matter of fact, that some evidence of that design would have been found upon the books or in the reports of the company. No intelligible account was given of any disposition of this money in either of these documents. The witness, by whom the entries were proved, did apply to the officers for information as to what he should debit in the books on account of the disposition of the five hundred thousand dollars in bonds, without obtaining any such information. There was, however, placed upon the books a statement of expenditures amounting to the sum of five hundred thousand dollars after the completion of these transactions. This proof was objected to on the part of the defendant. But it appeared that the material or larger part of the entries were made upon vouchers authenticated by the defendant himself, and the account was allowed to be read only after the proof was given of the inability to find and produce *474the original vouchers upon the trial. A large amount of the •charge on the books consisted of horses, which the evidence of Newell stated were obtained under the instructions of Mr. Foshay, the President of that company. And evidence was given tending to establish the fact that the price of these horses was greatly overcharged and that the account itself was probably a fictitious attempt to explain the disposition of the five hundred thousand dollars in the early part of the year 1885, after the transactions referred to in the indictment were substantially consummated and completed.

In the same general line was the testimony which related to the transactions with the banks, for they tended to explain the dealings between these different individuals, not only connected with this statement of the account, but with the disposition of a part of the proceeds of the issue of the fifteen hundred thousand dollars, in bonds, by the Broadway Surface Railroad Company and connecting them with a part of the general transactions involved in the examinations made .at the trial. It was, perhaps, not very important evidence in any respect, but it was sufficient to justify the court in receiving it, that it had a tendency to explain some of the obscurities otherwise presented by the case. And the same thing was true as to the loans made by Kerr to Sharp in 1884, and adjusted and paid in June, 1885. These, together with the other circumstances likewise made the subject of objection, were part of the *minutice*of the case which the court could not well have excluded, although they might prove of little service in its solution and disposition.

No possible injury was occasioned to the defendant by allowing the Mayor to state in his testimony the considerations influencing him in writing his veto message, for they clearly .appeared from that document, and those accompanying it, Avhich were sent in to the Board of Aldermen. What he said upon this subject was entirely harmless and gave no other point or influence to the documents themselves than was entirely apparent from their face. It has already been held that the court was right in receiving them as part of *475the proof bearing upon and indicating the probable motives of the members of the Board of Aldermen, who, after they were received, still voted for the granting of this franchise to the defendant’s company.

These latter objections have neither of them been argued with any degree of earnestness, but have been suggested by way of memoranda in the points upon which errors are affirmed to have intervened in the progress and disposition of the trial. They have been examined the same as though they were more fully impressed upon the attention of the court, but their examination fails to sustain either position. And for that reason neither of these exceptions is found to be of any substantial benefit or advantage to the defendant.

The other objections arise upon exceptions taken to the charge of the judge presiding at the trial. It is not requisite that they should be examined fully in detail, as they have been noted upon the brief, for the reason that the charge is not liable to the objections contained in the notation. And as to some of them, the points have already been considered and disposed of adversely to the defendant. The more prominent exceptions, and those deserving some consideration, relate to particular suggestions or remarks made in the submission of the case to the jury.

Exception was taken to the reference made by the judge to the acts of agents participating in carrying forward the criminal intent, if that should be found to be maintained by the evidence. It has been urged that there was no evidence of any agency; but what the court evidently intended by this reference was the acts of the parties who might be found to have concurred in planning and completing the commission of the offense. The agents so referred to were no others than the principals in the transaction, either of whom would be, strictly speaking, in what he did to further the general design, the agent of the others. And for such conduct on the part of either, the defendant, if these persons were acting in concert with him, would be legally, as well as criminally, responsible. Penal Code, § 29.

*476Exception was also taken to the division of the charge into two parts,* but that was formally done to bring the leading attributes of the accusation, as they were required to be proved, before the minds of the jurors. There was no error in what was said upon this subject, and not the least ground for supposing that the jury could have misunderstood the case in any of its aspects by this suggestion.

A further exception was taken to what was said to the jury concerning the record of Fullgraff, † as bearing upon the probability of the truth of his testimony. That, according to the explanation which was given, included his acts and votes as a member of the Board of Aldermen from the time when the unlawful confederation was entered into until it was finally completed, and it was so explained by the court. This record of this series of acts was ad*477missible and justly to be considered by the jury, as tending to indicate that Fullgraff and the others acting with him, in conceding this franchise by their votes were actuated by a corrupt agreement and understanding, made upon the expectation that they were to be paid for it, as he states they were, by persons acting in the interest and for the Broadway Railroad Company. The Lyddy injunction was not referred to as .a corroborating circumstance in the case, but as one included in its history, explanatory to some extent of, and affecting the conduct of the Aldermen, whose influence was favorable to sustaining the application of the company.

Indeed, there seems to be no substantial point presented by either of the exceptions to the charge of the court from which the defendant can derive any practical advantage. The case was very clearly submitted to them, and, although general remarks were made in the course of the charge that were simply suggestive from the evidence, the jurors were finally confined in their action to the disposition of the case upon the testimony. They were required to exclude all other considerations than the evidence from their minds, and to dispose of it under their obligations to the people and the defendant. And .after these instructions had been given to them, there was left no reason for supposing that their minds could possibly be diverted from their duty or the proper disposition of the case by the general remarks otherwise made in the course of the charge. Many requests were made for instructions to the jury, which were acceded to by the court, again guarding the defendant fully from the possibility of any misuse being made to his prejudice of testimony which the jury were not at liberty to consider on the question of guilt. In this view the ■court was requested to charge again that the attempt to bribe Pottle in the year 1883, if they believed his evidence, was not to be considered by them in any aspect of the case. And the court responded'it is only to be considered as tending to show the defendant’s interest in the Broadway enterprise, and motive ; it is not to prejudice the defendant as tending to show an independent crime. And upon the effect'of the evi*478dence of the witness, Fullgraff, it was in like manner added, that it was not safe for the jury to convict the defendant upon his testimony unless he was fully corroborated, and that the jury in their discretion, might entirely reject his evidence. In all these respects great care was taken to protect the defendant from an unjustifiable result in the consideration and disposition of the case. All that he could ask was conceded to him. No statement was finally left to go to the jury, which could improperly prejudice him, and no legal ground has been found upon which either of the exceptions generally referred to in the argument of the defendant’s counsel, can be maintained.

The court was asked upon the argument, to set aside the verdict of the jury, because of the general observations made to them concerning the character and enormity and the disastrous effects of the crime of bribery mentioned in the course of the cliarge. This argument was further impressed upon the consideration of the court by the fact that eleven of the-twelve jurors who sat in the case had formed an opinion as to the guilt or innocence of the defendant. But, for the reasons already advanced, this verdict should not be set-aside, for the jury were not left at liberty to dispose of the case upon any influence which might be produced in their minds by the circumstances alluded to, but they were confined to the evidence itself and the convictions which such evidence should impress upon their minds. The jurors cannot, because of their opinions, be regarded as liable- to have been improperly influenced by such observations, for they all testified certainly with apparent candor that they were still able to try the case and dispose of it without being influenced by these opinions. In this respect the case was not exceptional. And it is to be presumed that the verdict which the jury rendered had no other basis or foundation, in whole or in part, than the legal evidence in the case which they were left at liberty only to consider.

An appeal was taken from an order denying a motion to-*479quash the indictment.* But it was held by three members of the court in which the decision the presiding justice did not participate, that this appeal had not been authorized, and that the order then made, which preceded the trial of the indictment, being no part of the judgment roll, as that has been provided, for by section 485 of the Code of Criminal Procedure by an amendment taking effect on the 1st of June, 1887, was not before the court for its consideration. The appeal which the Code has provided for, is to be from the judgment, including-any actual decision of the court in an intermediate order or proceeding forming a part of the judgment. This order being no part of the judgment, as that is now provided for, was not considered to be before the court in the form in which the appeal was presented, *Commonwealth*v. *Eastman*1 Cresh. 189, but the entire subject matter of the case has been considered in the appeal from the judgment, and the order denying a new trial and denying the motion in arrest of' judgment.

As the case appears,' no sufficient reason has been found for interfering with the result attained by the judgment. The charge while among the gravest which can be made and most difficult to establish, was proved in such a manner as to render the subject of the defendant’s guilt within the province and decision of the jury. Their conclusion was adverse to his innocence. And, as no legal errors intervened to his prejudice during the progress of the trial, the case as it is presented, is one for the affirmance of the conviction and the orders included in the appeal, and which, by the practice, are regularly before the court.

As the evidence has been given with all its great details, it leaves the conviction upon the mind after a full examination of it, 'that it was not only sufficient, but that the jury were *480right in drawing, and acting upon, the conclusion which they did from it.

Both the judgment and the intermediate orders included in the appeal should therefore be affirmed.

*

 In his charge (page 1882 of case on appeal) Judge Barrett said : “ There are two questions in the case, and but two. The first is, whether Fullgraff was bribed. The second is, if he was, and if DeLacy handed him the money, who are the reahprincipals. Is this defendant, under the law I have read to you, and the facts which have been laid before you, a principal in the commission of the crime?”-This was excepted to by defendant’s counsel (Id. page 1914) : “I except to the charge that there are only two questions, and to the statement of what those two questions are.”-The Court : “ That is a mere form of expression to convey to the jury a general idea of the inquiry. There is really but one question, and that is, whether the defendant is guilty under the indictment.”

†

 Judge Barrett charged (page 1884 of case on appeal) : “I have always considered that, where a public officer is attacked in his reputation and charged with corruption by an alleged accomplice, the key-note of guilt or innocence (when we are looking, I mean, for the corroboration of the accomplice or the reverse) is the public officer’s record. We may look at his record, we may read the accomplice’s incriminating evidence, or indeed anyone else’s, in the light of that record. The record always speaks in clear tones. It sheds a light upon the page of every public official’s life. We are all judged by our record. How look at Fullgraff’s. action as an Alderman with reference to this particular matter. Look at each step m that record as stamped upon the papers of the journal of the Aldermanic body. Look, also, at the extraneous evidence of what he did in that connection, and see whether that evidence tends to corroborate him in his confession of guilt, or whether it tends to prove that he falsifies when he says he was guilty, that he was really innocent and that his own record shows it. On that head you have several facts,” etc.

*

 Judge Tan Brunt, before whom this motion was made, held upon the authority of *People*v. *Petrea,*1 N. Y. Crim. Rep. 233, that an indictment can only be set aside for a cause embraced in section 313 of the Code of Criminal Procedure. For an extended discussion of this question, see *People*v. *Clements*5 N. Y. Crim. 288.

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 *481that 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 *482evidence, 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.

*483Upon 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. *484Richmond) 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 *485company 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 *486August, 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 *487with 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. *489on 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*490fense 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*491cer, 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 *492proper 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. *493The 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 *494necessarily 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 *495court 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.

*497Where 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 *498been 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.