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But the appellant urges that Campbell was a convict and an accomplice and was not corroborated. Section 399 of the Code of Criminal Procedure provides that:
"A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime."
The plain language of this provision, and the interpretation thereof by the courts, has established the rule that the corroborative testimony need not of itself be sufficient to prove that the defendant committed the crime, but that it is enough if it merely tends to connect him with the commission of the crime. People v. Hooghkerk, 96 N. Y. 149; People v. Elliott, 106 N. Y. 288, 12 N. E. 602. As stated in People v. O'Farrell, 175 N. Y. 323, 67 N. E. 588:
"If there is evidence fairly tending to show such connection so that the conviction will not rest entirely upon the evidence of the accomplice, then the question whether the evidence is a sufficient corroboration to induce the jury to find against the defendant is for it to determine."
The learned court in its charge, in four separate requests tendered by the defendant, carefully and sufficiently instructed the jury that it could not convict upon the testimony of Campbell alone, unless there was other evidence in the case tending to connect defendant with the conversion of the notes.
There abundant evidence of the direct participation of Barry in all the transactions in relation to these notes down to the time of the demand for their return and refusal on the 7th of June. There is not a particle of doubt but that the notes were redelivered to Campbell after they had been returned by him, and after the 7th of June. This is positively testified to by Gundlach, a witness produced by the defendant, and evidenced by the receipt in writing given to Campbell by Gundlach, so that the conversion after the 7th of June is proved by uncontradicted testimony.
The defendant testified: That he never went to see Campbell in his office at all; that he never went to see Campbell after the notes had been handed back to Gundlach; that he knew nothing whatever at all of Gundlach's second delivery of the notes to Campbell, when it was done, and not until months subsequent; that he never spoke to Campbell in his office after the 1st of June, 1907.
Park testified: That the first time he saw Barry it was at 150 Nassau street in Campbell's office, where he was talking to Campbell in the latter part of May, 1907; that he saw the defendant there again about five or six times after the first time; that he was employed by Campbell at that time at that office and had taken a letter or message to Barry; that he went on a vacation about the middle of July; that he saw Barry in the office talking to Campbell at various times down to that date; that he came in with Gundlach.
Righter, who had desk room in the same offices, testified: That he saw Gundlach come in with Barry and talk to Campbell. That both of them talked to Campbell. The first time was in the month of May.
of his recollection that Barry came into Campbell's office and talked to Campbell down to the time that he left.
The testimony of these witnesses therefore is a flat contradiction of the defendant's statement and a corroboration of Campbell, in so far as it sustains his evidence that Barry was in the office and talking with him at or about the time that he testified to. Barry wrote a letter to Gundlach dated August 3d, as follows:
"For months I advised you to take legal steps to recover the Sherman & Company, Keyport, N. J., notes from Stein and Campbell; and repeatedly told you that if you failed to do so and got into trouble you need not come to me for aid of any kind. Yesterday I urged you for the last time. In reply you not only refused to follow my advice, but became disrespectful to me. As a consequence that ends our relations, both present and future, and you are hereby notified not to use my name as your personal or business reference. This is my last communication to you and requires no reply from you.”
This letter is entirely inconsistent with his testimony that he knew nothing whatever about the second delivery of the notes until months subsequent; and in answer to the question by his own counsel:
"Did you directly or indirectly or remotely aid, advise, counsel, or abet in the second delivery of any notes to Campbell? A. I did not, and, on the contrary, the notes were all left in the safe of Mr. McBurney when I ceased my activity on my own recommendation."
This second delivery was on or about the 15th of June. Yet on August 3d, he writes:
"For months I advised you to take legal steps to recover the notes from Stein and Campbell.”
We think that, taking this evidence in connection with all the other evidence in the case which establishes the active participation of Barry in every step of the preliminary proceedings, a pure question of fact was presented for the jury, that the evidence corroborated Campbell, tended to connect the defendant with the commission of the crime, and entitled the jury to draw the inference which the verdict establishes it did draw.
The appellant contends that the cross-examination of the defendant was improper, and it certainly did cover a pretty wide range; but as the defendant commenced his own examination in chief with an account of his early life, from the time of his birth, his education, his business, his associates, and his friends, presumably for the purpose of convincing the jury that it was not probable that such a man could be guilty of the crime charged, he ought not to complain if the crossexaminer marched through the door which he had so widely opened. "It is a well-established rule," said Werner, J., in People v. Hinksman, 192 N. Y. 421, 85 N. E. 676, “in this state that a defendant in a criminal action who offers himself as a witness may be interrogated as to any vicious or criminal act of his life"-citing People v. Webster, 139 N. Y. 73, 34 N. E. 730; Brandon v. People, 42 N. Y. 265; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757; People v. McCormick, 135 N. Y. 663, 32 N. E. 26; People v. Casey, 72 N. Y. 393. We do not think the discretion of the court upon the crossexarnination of the defendant was improperly exercised.
The appellant contends that some remarks of the assistant district attorney in the summing up in alluding to the absence of characte: witnesses for the defendant was reversible error, but the learned court in its charge said:
“At the request of the district attorney, I advise you to disregard the comments made by the district attorney on that evidence, and the comment is witbdrawn from your consideration."
So that the motion which defendant's counsel made that the jury be instructed to disregard the remark of the district attorney, and that it be stricken out, was granted by the court.
The appellant claims that the prosecution failed to prove that the notes in question had any value. At the time of the alleged conversion, they were negotiable instruments of a going concern, duly authorized by the directors thereof, and undoubtedly valid obligations for the payment of money in the hands of bona fide holders, and seem to be covered by the provisions of section 545 of the Penal Code that:
"If the thing stolen consists of a written instrument, being an evidence of debt, other than a public or corporate certificate
or security haring a market value,
the amount of money due thereon or secured to be paid thereby and remaining unsatisfied, or which in any contingency might be collected thereon or thereby, or the value of the property transferred or affected, or the title to which is shown thereby, or the sum which might be recovered for the want thereof, as the case may be, is deemed the value of the thing stolen."
And there is nothing in the point taken.
It follows, therefore, that the judgment appealed from should be affirmed. All concur.
SIMPSON v. FOUNDATION CO. (Supreme Court, Appellate Division, Second Department. May 7, 1909.) MASTER AND SERVANT ($ 258*)—EMPLOYER'S LIABILITY ACT-APPLICATION TO
Where a petition for negligence is based on the failure to furnish signalmen to warn plaintiff of danger, and does not show that the cause of the accident was one for which the master is liable under tbe provi. sions of Laws 1902, p. 1748, c. 600, § 1, making a master liable for the negligence of an employé whose whole or part duty is that of superiotendence, the petition is for common-law negligence, and the statute bas no application.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. $ 258."] Gaynor and Rich, JJ., dissenting.
Appeal from Trial Term, Queens County.
Action by Patrick Simpson against the Foundation Company for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial ordered.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
Frank V. Johnson, for appellant.
WOODWARD, J. The plaintiff brings this action to recover damages for personal injuries sustained by him while in the employ of the defendant on the 27th day of June, 1906, on the premises at the corner of Broadway and Thames street, in the borough of Manhattan. The case was closely contested, and the evidence appears sufficient to sustain the verdict; but, owing to errors in the trial, the judgment should be reversed.
The complaint, aside from the formal averments, sets forth that "in order to protect the life and limb of plaintiff in his employment about said premises, under chapter 600 of the Laws of the State of New York of the Year 1902, it was the defendant's duty to furnish safe appliances and devices, competent and a sufficient number of servants to operate said devices and appliances, a safe set of signals, or other devices to warn plaintiff of the approach of swinging things, such as derricks, buckets, and hoisting machinery, and in the nighttime a sufficient number of lights and like appliances about said premises, so that plaintiff could see about him with reasonable clearness and accuracy; that at the time aforesaid the defendant operated a derrick and bucket, which swung, raised, and lowered in and about said premises, and in utter disregard of its duty to the plaintiff failed to supply a sufficient number of servants to operate said apparatus, failed to furnish or supply signalmen at various points about said premises to warn plaintiff of the approach of said apparatus, or any of its parts, failed to furnish or supply other signals or appliances, of any kind whatever, to warn plaintiff of the approach of said apparatus or any of its parts, and failed to supply sufficient electric lights, or any other kind of light, in the nighttime to enable plaintiff to see about said premises with reasonable clearness, so that said premises were dark; that solely as a result of the defendant's negligence as aforesaid, and without any fault or negligence on the part of the plaintiff,” the latter was struck by one of the buckets, with the resulting injuries. The complaint then alleges the sending of a notice under the provisions of the employer's liability act (Laws 1902, p. 1748, c. 600), and demands judgment for the sum of $75,000.
It is to be observed that, with the exception of the alleged service of the statutory notice and a reference to the provisions of chapter 600, p. 1748, of the Laws of 1902, there is no allegation of a single fact to bring the case within the provisions of the employer's liability act. The negligence which is specifically alleged, and which is said to be the sole cause of the injuries, is common-law negligence. The common-law right of action is not changed or regulated by the provisions of chapter 600, p. 1748, of the Laws of 1902, as we distinctly held in the case of Rosin v. Lidgerwood Manufacturing Co., 89 App. Div. 245, 86 N. Y. Supp. 49, and this doctrine was specially approved by the Court of Appeals in Gmaehle v. Rosenberg, 178 N. Y. 147, 152, 70 N. E. 411. It is true that in the case of Harris v. Baltimore Machine & Elevator Co., 112 App. Div. 389, 98 N. Y. Supp. 440, Mr. Justice Gaynor, with his usual accuracy of distinction in matters of
pleading, pointed out that it was not necessary, or even proper, in a complaint, to allege that the negligent act of the defendant was that of a superintendent, as this was a mere matter of proof; but the Court of Appeals, in affirming that decision, say (188 N. Y. 141, 144, 80 N. E. 1028, 1029):
"It is not necessary, in order to plead a cause of action under the emplos. er's liability act, that its precise language should be made use of, provided that it appear plainly from what is alleged that the cause of action was within the provisions of the act and that its requirement of the giving of a notice to the defendant has been complied with.”
It must appear from the pleadings that the cause of the accident is one for which the master is liable under the provisions of chapter 600, p. 1748, of the Laws of 1902, or there is no place in the action for the notice, and it is not governed in any of its details by the provisions of that act, but stands solely upon its common-law basis. "In Ward v. Manhattan Railway Co., 95 App. Div. 437, 88 N. Y. Supp. 758, this court,” say the court in Curran v. Manhattan Railway Co., 118 App. Div. 347, 349, 103 N. Y. Supp. 351, 353, “made the observation that, as it then construed the employer's liability act, the provisions of sections 1 and 2 could not be taken advantage of except the action was brought under the act, but that the provisions of section 3, respecting the assumption of risks, applied to all actions by an employé against his employer, whether under the act or at common law. Further consideration has led us to conclude that, in order to entitle an employé to the benefit of the provisions of the employer's liability act, he must bring his action under that act and conform to its terms in so doing (Chisholm v. Manhattan Railway Co., 116 App. Div. 320, 101 N. Y. Supp. 622), and that in an action for common-law negligence he is not entitled to the benefits of its provisions, but must be governed by the rules of the common law."
This being the law, and the plaintiff having pleaded only a commonlaw action, he had no right to introduce in evidence the alleged notice served upon the defendant, even assuming that the notice would have been a proper one in an action under the statute. This alleged notice, which was prepared by the plaintiff's attorney, and which was introduced in evidence over the defendant's specific objection that the cause of action pleaded was one at common law, and not under the statute, reads as follows:
"Please take notice that Patrick Simpson claims and demands from the Foundation Company $50,000 for damages sustained by said Simpson as a result of personal injuries caused by the negligence of the Foundation Company on June 27, 1906. Said negligent acts occurred in a building in the course of construction which is situated on Broadway (west side), near Cedar street, in the borough of Manhattan ;
the said Foundation Conipany having been at said time engaged in building the foundation for said building and while said Simpson was in their employ. Said accident was caused by the failure of the said Foundation Company to provide proper protection for the said Simpson in his employment, and as a result thereof, said Simpson was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit, whereby he sustained serious injury. This notice is given pursuant to chapter 600 of the Laws of 1902 of the State of New York, and the said Patrick Simpson intends to bring action