a barrel in his wagon covered with canvas. Subsequently the same morning he was seen returning to Rochester without the barrel. Down a ravine near the road defendant had passed over, the body of deceased was found later the same morning in a barrel, with a piece of blood-stained canvas or burlap lying near it, and that burlap corresponded with a similar article found in a store conducted by defendant and his brother. The head and legs of deceased had been cut off by a skillful operator. Defendant was a cripple, a legless cripple, and deceased was a strong, robust man. There had evidently been a fierce struggle, for there were more than twenty wounds and bruises on the body of deceased. Not a scratch or blood stain were found on defendant. He had not been seen with deceased on the day he disappeared. There was no evidence whatever that defendant was even present when the murder was committed. The most the jury could have properly found was that defendant had undertaken to dispose of the body after the murder, but that was not evidence to connect him with the tragedy itself, and the most that could be spelled out of the evidence was that defendant was an accessory after the fact in trying to secrete the body.

In the instance case defendant was with deceased just before he died, and the only person so far as disclosed by the evidence who had the opportunity to kill him. He was an old and feeble man, almost totally blind, and on that account incapable of defending himself. Defendant was forty-seven years of age, strong and healthy, and weighed 180 pounds. She disliked the old man. She had the motive, the inclination and the opportunity to get rid of him. Not one of these features existed in the Galbo case.

The other cases cited by defendant do not assist her, for the facts do not correspond with the facts here. In the case of People v. Ledwon (153 N. Y. 10) the evidence for the People was furnished largely by a small boy. His statements were very contradictory, he having testified different ways on the

question of whether the deceased committed suicide or whether he was choked to death by defendant. A new trial was granted largely because of these contradcitions.

The case of People v. Bennett (49 N. Y. 137) was reversed because of an error in the charge. In the case of People v. Razezicz (206 N. Y. 249) the conviction was reversed because the circumstances were based, not upon direct proof, but by inferences based on inferences, while in People v. Giordano (213 N. Y. 575), where defendant was charged with murdering his wife, no motive was established, as it appeared that defendant and his wife were friendly, and there was no proof that he owned the instrument with which the murder was committed.

In the case at bar many of the facts and circumstances were established by direct proof-particularly the evidence of ill feeling which defendant had for deceased; her contradictory statements about the affair; her statement that if she had to go to prison she would not go alone, but would squeal and her husband would go with her; her peculiar actions when she discovered the old man trying as she said to fix a wire back of his head before she went to the field to notify her husband, although she had been previously warned that Michael would take his life with a wire, and knowing all that she did not raise a hand or do a thing to prevent it, and then telling a neighbor that morning that "Mike is dead and it is a good thing," and her frequent ill treatment of him. The jury heard all of this evidence, and much more, that was given by the witnesses. It was direct evidence to establish facts and circumstances which the jury would consider and weigh.

The jury had a right to pass on the facts, and so long as the trial was fair, and every right of the defendant was safeguarded, and where the verdict is supported by sufficient competent evidence, the appellate court should not interfere.

Where a crime is sought to be established by circumstantial evidence, the circumstances must be established by direct proof, and not be left to inferences merely.

The circumstances here were almost all established by direct proof, either by witnesses who heard various statements of defendant, or heard and saw what she had done to the deceased at different times, and by her sworn statements admitted in evidence.

While it is true that in cases where a crime is sought to be established by circumstantial evidence, every link in the chain of circumstances must be connected so that the guilt of the accused flows naturally from the facts and circumstances proved, and while they must point clearly to the guilt of defendant, and be inconsistent with her innocence so that her guilt must be established to a moral certainty, I think the facts and circumstances proved in this case have fully measured up to this rigid standard, and point clearly to defendant's guilt.

As was said by Judge Hiscock in People v. Gillette (191 N. Y. 107): "But all taken together and considered as a connected whole, they [the circumstances] make such convincing proof of guilt that we are not able to escape from its force by any justifiable process of reasoning, and we are compelled to say that not only is the verdict not opposed to the weight of evidence and to the proper inferences to be drawn from it, but that it is abundantly justified thereby."

The evidence in this case has been read with the utmost care and after due consideration the impression is left that no mistake was made by the trial jury, that the facts and circumstances as established point clearly to defendant's guilt and exclude every hypothesis of her innocence.

Defendant asks that this conviction be reversed because, as it is claimed, instructions were given to the jury in the absence of the defendant. The record is silent in that regard so the question is not properly here, but on the argument the point was raised by counsel for defendant. He was asked by a member of the court if the prisoner was not finally sent for, and on her appearance if the court did not withdraw what had been said in her absence, and if the court did not reinstruct the

jury on the points raised in her presence, and he replied in the affirmative. That being so, no right of defendant was

overlooked and no injustice was done her.

The case of Maurer v. People (43 N. Y. 1) does not assist defendant. That was a case where the jury came in for instructions, received them and retired, all in the absence of defendant. Here whatever was said to the jury in response to the request for additional instructions in the absence of defendant was withdrawn when her absence was discovered and the jury told to disregard it and then the jury was reinstructed on the same points. If any error had unwittingly crept into the proceedings it was cured and no injustice was done defendant. (People v. Thorn, 156 N. Y. 286; People v.

Kelly, 94 id. 526.)

Defendant had a fair trial, no legal error was committed that would justify a reversal, the verdict of the jury was right and based on sufficient evidence, and the judgment of conviction and order denying the motion for a new trial should be affirmed.

HUBBS, J., concurs.

Judgment of conviction and order reversed and new trial granted.

SUPREME COURT-APPELLATE DIVISION—

FOURTH DEPARTMENT.

July 6, 1920.

THE PEOPLE v. HARVEY H. BROWN.

(193 App. Div. 203.)

(1) RIOT-ATTACK UPON STRIKE BREAKERS-PENAL LAW, SECTION 2090EVIDENCE JUSTIFYING CONVICTION.

Appeal from a judgment convicting the defendant of the crime of riot as defined by section 2090 of the Penal Law, which riot took place during a strike of the employees of an electric railroad and involved attacks upon strike-breakers' used to operate the cars. Evidence examined, and held, that a riot had occurred without question, and that a finding by the jury that the defendant had participated in the crime was justified. (2) SAME WHEN DEFENDANT NOT PREJUDICED BY PUBLICATION OF CHARGE

TO GRAND JURY IN NEWSPAPER.

Conviction of said crime will not be set aside on appeal merely because the charge previously made by the presiding judge to the grand jury, which found the indictment, was published in a newspaper having a circulation in the vicinity. Such publication did not deprive defendant of such trial as is guaranteed by the Constitution, although it seems such publication might be made the basis of a motion to change the place of trial.

(3) SAME.

Said conviction will not be reversed because the trial judge stated to the graund jury when the indictment was found that it was a matter of public knowledge that a riot occurred a few weeks ago, as such statement did not deprive the grand jury of its right to determine whether the crime of riot had been committed, acting as judge both of the law and the facts.

(4) SAME.

Moreover, even if the statement of the judge that a riot had occurred were erroneous, it is not ground for reversal, as it is presumed that the grand jury performed the duty of receiving none but legal evidence, enjoined upon them by section 256 of the Code of Criminal Procedure, which is required to be read to them.

(5) SAME FAIR AND IMPARTIAL TRIAL.

Assuming that it was error for the trial judge to refuse to instruct the jury after verdict as to different degrees of the crime of riot and to instruct them that the defendant may be convicted of any lesser degree,