MILLER, J. The defendant was indicted for the crime of grand larceny in the first degree, and convicted of grand larceny in the second degree.

There was sufficient evidence upon the trial to submit to the jury the question whether the defendant was guilty of the crime for which a conviction was had, and, under the facts proved, the court was not authorized to direct a verdict of acquittal. The proof established beyond question that the crime of larceny had been committed, and there was evidence which pointed to the defendant as the guilty party. There was also evidence showing that the defendant had been informed by the wife of Hennessey that the money stolen was in a trunk belonging to Hennessey, and kept under a lounge in his house. No person had access to the place where the trunk was kept, from the time it was last seen there prior to its being taken, besides Hennessey and his wife, except the defendant. The defendant was there on the night when the larceny was committed for the purpose of obtaining a bedstead of Hennessey's wife, as she stated; and while, at her request, Mrs. Hennessey went up-stairs to procure the bedstead, she was alone for a period of about 15 minutes, Curing which time she had ample opportunity to remove the trunk and its contents without being detected. She was thus in a position where she might have committed the crime alleged. Several gold coins of the same denomination, and bearing the same date as those stolen, were found concealed in the defendant's wood-shed wrapped up in a newspaper, other portions of which were found in the defendant's house. There was also evidence of some tracks of the defendant and her daughter, made as if engaged in carrying something, and which led to the place where the trunk was found, with its contents gone, excepting a few small silver coins. In regard to these tracks, the defendant and her daughter gave testimony which was contradicted by other evidence. The facts referred to, with other circumstances not necessary to enumerate, point to the defendant as the perpetrator of the crime, and it cannot be said, we think, that no offense was made out against her. It was for the jury to draw the inference as the case stood, and to determine the guilt or innocence of the accused.

No error was committed by the court upon the trial in refusing to hold, at that stage of the case, that upon a presumption that a larceny had been committed, no presumption can be founded that the defendant committed the crime, and that, as matter of law, no presumption of guilt can be raised from the possession of stolen property, except where the possession is conscious and exclusive on the part of the defendant. The court clearly had a right to reserve the disposition of these questions until the entire testimony was in, and could not, in accordance with any well established practice, be required to indorse propositions before the case was finally closed. No motion was, at that time, before the court requiring its opinion on the abstract questions presented, and it was eminently proper to withhold its decision in regard to them until all the testimony was introduced, and the case was ready for submission to the consideration of the jury. Any other course might lead to confusion, and tend to embarrass the action of the court in its final disposition of the questions involved.

The same questions were raised in the requests made to charge, some 27 in all, at the close of the case. In regard to all of these it may be said that they embraced mostly abstract propositions which would tend to confuse the case in the minds of the jury, and not lead them to a correct result.

The first proposition, above cited, may properly be said to be strictly accurate, but its presentation, in the form adopted, was in no sense required for the protection of the rights of the accused. The charge, as made, fully covered all the facts elicited by the evidence; and there is no rule, under such circumstances, which demands that the court should deal in presenting abstract theories which would not serve to elucidate or explain the case as presented by the testimony. The correctness of the proposition made would

necessarily follow from the presentation made by the judge, in his charge, of the evidence upon the trial, and the rules applicable to the same. The effect of the entire charge was that the commission of the crime alleged did not, of itself, raise a presumption of the defendant's guilt, and that evidence was essential to establish such guilt.

As to the second proposition, it may be remarked that it was not strictly accurate. It was not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant, and such a rule only applies in a case where the evidence of guilt is the possession of the property stolen, and it is to be presumed from that fact. The question whether such possession establishes guilt is one for the jury. In the case considered, where there was no direct proof of an actual possession, but evidence of circumstances which tended to show that the defendant took and had possession of the money, it was for the jury to say whether she was guilty of the offense charged, and the proposition stated would seem to be inapplicable.

What has been already remarked generally as to the first proposition is also applicable to the second as well as to the other requests made.

The rule applicable to the requests made is stated in Caldwell v. New Jersey S. B. Co., 47 N. Y. 282, by CHURCH, C. J,, as follows: "If the charge, as a whole, conveyed to the jury the correct rule of law on a given question, the judgment will not be reversed, although detached sentences may be erroneous; and, if the language employed be capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were, or at least might have been, misled." Having this rule in view, we are unable to discover any ground of error in any of the refusals to charge any of the requests made.

Upon the trial a motion was made by the defendant's counsel to strike out all the evidence given by one Kinney in regard to the admissions made by the defendant after certain statements made by the officer, Guest, to the defendant, and also all the evidence of one Champlin, as to the admissions made by the defendant that certain tracks, testified to, were hers and her daughter's, for the reason they were made under threats by the officers, and that she was told she might as well own up, as they had proof to convict her. A further motion was made to strike out all the evidence given on the subject subsequent to the statement that there was evidence sufficient to convict the defendant. The court denied each of the motions, and the defendant excepted separately to the rulings. It appears that three of the constables were at the defendant's house to make a search for the money stolen when they had the conversation with the defendant as already stated, and after which she told them about the tracks.

The question arises, in the first place, whether the statement made by the defendant was in the nature of a confession to the effect that the defendant was guilty of or had any connection with the crime which had been committed, within the meaning of section 395 of the Code of Criminal Procedure, which declares that "a confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor." The evidence given by the defendant was a statement in regard to her action, so far as it related to the tracks which had been found in the vicinity of the house where she lived. Conceding that the declarations made by the defendant can be regarded as confessions, we think, under the testimony introduced, and under section 395, of the Criminal Code, supra, the evidence was competent. No threat was employed by the officers which can be said to have induced the defendant to make any statement as to the alleged offense. The assertion of the constable that he had enough to convict her, and that she might consider herself under arrest, did not, of itself, constitute

a threat which it can be claimed operated upon the mind of the accused, and caused her to make the declarations which she did.

In People v. Wentz, 37 N. Y. 304, the officer told the accused "he was in a bad fix, and had got caught at last." The defendant then confessed his guilt, and it was held that there being no inducement, promise, threat, or menace used to obtain the confession, or influence its being made, the evidence was properly admitted. It is not apparent that any distinction exists between the case cited and the one now before us. In both of them the statement was to the effect that the defendant had been detected in the commission of the crime alleged. The statement in each case was substantially alike, and the case cited is directly in point. There is nothing here which indicates that any threat was made, or that the declarations of the defendant were induced by fear. That they were untrue is of no consequence, so long as they were made by the accused as voluntary statements in her own behalf.

The evidence of Champlin as to the declaration of Angelina Quinn was, we think, competent. Tlie evidence showed that she was an accomplice in the commission of the crime charged, and she had already testified in regard to the transaction. The evidence introduced tended to contradict her testimony, and was clearly admissible.

There was no error in the charge of the court to the jury, to the effect that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in the first degree; and, if the property taken was of the value of more than $25, they might convict of grand larceny in the second degree; and, if less than $25, the verdict might be for petit larceny.

The only evidence as to the amount of money lost was that of Hennessey, who swore on his direct examination that he lost $540. He was cross-examined at great length in regard to the amount of money that he had, and evidently with the view of showing that it was uncertain what amount of money in fact was in the trunk. If the amount was less than $500 and more than $25, then the crime was grand larceny in the second degree. Assuming that the money in the trunk was not stolen, as $20 in gold and $3.75 in silver quarters were found, and these, with the trunk and socks, made property over the value of $25, the crime of grand larceny in the second degree would be established by the evidence. The charge, as made, had a direct bearing upon this portion of the evidence; and, if the jury believed that there was doubt as to the property taken amounting to over $500, they might properly have found the defendant guilty of a lesser degree than the first. So, also, if the evidence was uncertain as to the taking of the trunk, and the amount of money testified to by Hennessey, they might have convicted the defendant for the taking of the smaller amounts found, in whole or in part, and brought in a verdict of guilty of petit larceny. The crime charged was grand larceny; and, if the evidence established only petit larceny, there is no reason why a conviction should not be had for that offense.

We have examined the other questions in the case, and find in none of them any ground of error which justifies a reversal of the judgment. The conviction should be affirmed.

(All concur, except RAPALLO, J., not voting.)

(103 N. Y. 626)

MARTIN, General Guardian, etc., v. NEW YORK, N. H. & H. R. Co.

(Court of Appeals of New York. December 17, 1886.)

1. EVIDENCE-RES GESTE-STATEMENTS OF DECEASED AFTER INJURY.

In an action to recover damages for the death of plaintiff's father, caused by the negligence of defendant, testimony showing declarations of deceased explaining the manner in which the accident happened, made after the fatal injury was received,

and while being conveyed from the scene of the accident, is not part of the res gestæ, and is inadmissible; following Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274.

2. TRIAL-OBJECTIONS TO TESTIMONY-WAIVER-INTRODUCING SAME KIND OF TESTIMONY. A party does not waive his objection to the admission of testimony by introducing like testimony on the same point.

Appeal from supreme court, city and county of New York, First depart

ment.

This action was brought by plaintiff to recover damages from defendant for the killing of plaintiff's father, William T. Quigley, caused by the negligence of defendant. Testimony was introduced at the trial showing the statements made by Quigley, after the fatal injury was received, and while being carried from the scene of the accident, as to the manner in which the accident happened. Judgment for plaintiff. Defendant appeals.

Thomas P. Wickes, for respondent, Martin, General Guardian, etc. What Quigley said after the accident happened formed part of the res gestæ, and was admissible. Tilson v. Terwilliger, 56 N. Y. 273; Casey v. New York Cent. & H. R. R. Co., 78 N. Y. 518; Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274, 283, 284; Com. v. Hackett, 2 Allen, 136; Insurance Co. v. Mosley, 8 Wall. 397.

Frank Loomis, for appellant, New York, N. H. & H. R. Co.

The court erred in admitting evidence of what Quigley said after the accident happened. It was offered to prove, by the unsworn declaration of the deceased after the accident, the vital proposition of the plaintiff's case. It was no part of the res gestæ. Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274; People v. Murphy, 101 N. Y. 126; S. C. 4 N. E. Rep. 326; Bigley v. Williams, 80 Pa. St. 107; 2 Whart. Ev. § 1174.

RAPALLO, J. The decision of this appeal is controlled by the case of Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274, in which it was held, after much discussion, that the declarations of a person who had been fatally injured upon a railroad, made after he had sustained the injuries, explaining the manner in which the accident had happened, were not competent evidence in favor of his administratrix, in an action brought by her against the railroad company for causing his death by negligence. The plaintiff was allowed to prove in the present case, under objection and exception, that, after the deceased had been taken out from under the car by which he had been injured, and while he was being conveyed to the switch-house by his fellow-employes, some one asked him how the accident had happened, and he said: "I pulled the pin, and made a grab for the car, and there was nothing there for me to grab." Another version given by the witness was that deceased said he cut off the car, and made a grab for the handle of the car, and there was nothing there for him.

The deceased was an employe of the defendant, and the sole ground upon which the plaintiff's claim to recover was founded was that the car which he was directed to detach from the train was not furnished with a horizontal grab-handle on its end, and that that alleged defect was the cause of the injury. The testimony thus erroneously admitted therefore tended to sustain the vital point of the plaintiff's case.

The learned counsel for the respondent seeks to avoid the effect of the erroneous admission of this testimony by claiming that it did no harm; but we think that position cannot be maintained. Whether the car on which the deceased attempted to climb after he had cut it off, was or was not furnished with a grab-handle, and whether or not he met his death in the manner in which the witness testified that he said he did, were contested questions of fact which were submitted to the jury, and the evidence of his declarations very soon after the accident, must have had weight with them in determining those questions.

It is further contended that the defendant is precluded from insisting upon this exception, by having itself inquired into the declarations of the deceased on the occasion referred to. One witness testified that he attributed the blame to one of his fellow-workmen, and another that, when asked how he came to fall, he answered that he did not know. All this testimony was taken after the declarations of the deceased, while being taken to the switch-house, had been admitted, notwithstanding the defendant's objection and exception, and was introduced by way of contradiction of the witness Malone, who had given the objectionable testimony. The defendant did not waive his objection and exception by attempting to disprove the matter testified to, or to prove facts inconsistent with them. A party excepting to the admission of testimony is not bound to concede its truth, or to refrain from combating it, in order to retain his exception.

There are numerous other exceptions in the case worthy of attention; but, as they may not arise on another trial, it is needless to pass upon them now. For the error pointed out, the judgment should be reversed, and a new trial ordered; costs to abide the event.

(All concur, except DANFORTH, J., not voting.)

(118 III. 391)

CLOYD v. TROTTER.

(Supreme Court of Illinois. November 10, 1886.)

:

1. WRIT AND PROCESS--NON-RESIDENTS-SERVICE OF COPY OF BILL AND NOTICE-SIGNATURE.

Where a suit against a non-resident is begun under section 14 of the Illinois chancery act, and the copy of bill and notice of suit begun, provided for therein, are attached together, the signature to the bill is a sufficient signature for both papers. 2. SAME-SERVICE WITHOUT STATE WILL NOT SUPPORT PERSONAL DECREE.

Service upon a non-resident, or person without the state, under section 14 of the Illinois chancery act, will not confer jurisdiction to sustain a personal decree against the defendant so served, either for costs or otherwise.

Error to Wayne.

E. Beecher, for plaintiff in error. H. Tompkins, for defendant in error. SCOTT, C. J. The bill in this case was brought in the circuit court of Wayne county by William Trotter against James C. Cloyd, and was to remove a cloud from the title to property which complainant claimed to own. A decree was rendered in accordance with the prayer of the bill, and, as the title to the property is involved, defendant brings the case directly to this court on error, as he is authorized by law to do. No question is raised on the bill, and the assignment of errors does not make any discussion of the merits of the case necessary.

Defendant is a non-resident of the state of Illinois, and the service upon him was by a service of a copy of the bill upon him at his residence in the city of New York. It is objected the service was insufficient; and as there was no appearance by defendant, or by any solicitor for him, the court had no jurisdiction to render the decree it did.

Section 14 of the chancery act (Rev. St. 1874, p. 200) provides: "The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this state not less than thirty days previous to the commencement of the term at which such defendant is required to appear, which service, when proved to the satisfaction of a court, shall be as effectual as if such service had been made in the usual form within the limits of this state." The point is made, against the sufficiency of the service in this case, that the notice of the commencement of the suit was not signed, either by complainant, or any solicitor for him. The statute does not in terms require that the notice to be served shall be signed either by complainant or his solicitor, but the better practice,