The People v. Carroll.

run away, and leave his wife or children a burden on the public. (1 R. S., 819, ed. of 1846.)

H. Harris (District Attorney), for the people.

By the Court, PARKER, J.-This case abounds in error. The complaint charged against the defendant no crime or misdemeanor which courts of special sessions are authorized to try. (2 R. S., 711.) It was only, at most, a complaint against him as a disorderly person, and, if enough was set forth, it was the foundation for a summary proceeding under 1 Revised Statutes, 819. If, on the return of the warrant, it had appeared by the confession of the defendant, or by competent testimony, that the defendant was a disorderly person, as charged, the justice might have required sufficient sureties for his good behavior for one year, in default of which he might have committed him to jail; and this was all he could do. But the justice, mistaking entirely his powers and the character of the offence, organized a Court of Special Sessions, required the defendant to plead to the complaint, and, after the trial, sentenced him to pay a fine of twentyfive dollars, or be imprisoned in the penitentiary of Albany county for ninety days.

It is even doubtful whether there was enough in the complaint, if established, to convict the defendant of being a disorderly person. The charge was that he had abandoned his wife, and neglected and refused to provide for her, and that for two weeks he had refused to pay her board and support her, and that he had refused for several months to permit her to reside with him and to associate with her children, and retained her clothing and refused to let her have the same, and that he was a disorderly person. None of these specifications come within those enumerated in the statute. (1 R. S., 638.) The statute declares those to be disorderly persons who threaten to run away and leave their wives or children a burden to the public. No threats are

The People v. Carroll.

alleged in this case. The complaint was evidently drawn under the seventh section of the act of 1851, amending the charter of the village of Cohoes (Laws of 1851, 577), which declared all persons who should actually abandon their wives and children in said village, or who should refuse or neglect to provide for them, &c., to be disorderly persons. But that act was repealed on the 12th of April, 1855 (Laws of 1855, 663), more than a month before these proceedings were instituted.

Without deciding the question whether the wife of the defendant was a competent witness against him, in a case where no personal violence, was alleged (The People v. Carpenter, 9 Barb., 580), it is quite certain that the justice. excluded proper testimony on the cross-examination. The defendant's counsel had a right, after hearing her statement of the conduct of the defendant, to require her to answer further such questions as tended to show that her own conduct had provoked, or that it justified, the conduct of the defendant. A party cannot object that an answer to the question asked may involve the witness in a criminal prosecution. Such an objection may be made by the witness, but not by the party; nor can even a witness claim such a privilege where such further examination is necessary to understand the facts already voluntarily stated. If a witness has stated a part of a transaction, or of a series of transactions, which implicate the defendant, the latter has a right to show, by a cross-examination of the same witness, that the fault and even the criminality were on the part of the witness and not of the accused. (1 Cow. & Hill, 734, 5.) The conviction must be reversed.

Conviction reversed.

COURT OF APPEALS. Albany, June Term, 1855. Before Gardiner, Chief Judge, and Denio, Johnson, Ruggles, Dean, Hand, Crippen and Marvin, Judges.

THE PEOPLE, plaintiffs in error, v. ANDREW WILLIAMS, defendant in error.

When it is necessary, on the trial of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence, as part of the res gestæ, for the purpose of showing its true character; but to render such declaration competent, the act with which it is connected should be pertinent to the issue; for when the act is, in its own nature, irrelevant, and when the declaration is, per se, incompetent, the union of the two will not render the declaration admissible.

Where, on the trial of A. W. for the alleged murder of his wife by poison, it appeared that he lived apart from his wife, and in the same town, and that his wife left her residence, on Saturday evening before her death, and returned home, at five o'clock the next morning, sick, and continued ill till she died, her symptoms being the same as in cases of poisoning; Held, That it was not competent to provo what the deceased said, when she left home on Saturday evening, as to where she was going; and where such evidence was admitted, and it was proved that she said she was going with clothing for her husband, and the prisoner was convicted, it was held erroneous, and the judgment was reversed. Where it was claimed by the prosecution that arsenic had been administered to the deceased, in a bowl in which there had been tea and toast, which had been fed to her from the bowl by the prisoner, during her last illness, and there was evidence tending to identify the bowl as the same one delivered to the physician who had analyzed the contents at the request of the prosecution; Held, That it was competent for the prosecution, at the trial, to prove by the physician the condition and contents of the bowl, and the analysis made by him of the contents, though the identification of the bowl by the witnesses was not positive, it being a question for the jury to decide whether the bowl was identified to their satisfaction.

On such a trial, it is proper, on the question of motive, to prove that the wife had, sometime previous to the alleged poisoning, entered a complaint against her husband, the prisoner, as a disorderly person, on the ground that he had abandoned his wife, and that the prisoner was arrested on such complaint, and gave a recognizance, with surety, on which he had been required to pay, and had paid, to the magistrate, weekly, the sum of $2 for the support of his wife.

Where a paper, claimed to be such a recognizance, was produced in court, which purported to be signed by the prisoner and his surety, and to have been taken before a police justice, but had never been filed, and there was

The People v. Williams.

no evidence of its execution, except what might be inferred from the testimony of an agent of the governors of the alms-house who produced it, that weekly payments of $2 had been made on it by the prisoner; Held, That there was not sufficient proof of its execution to allow it to be read in evidence. By HAND and MITChell, JJ.

Where an inquiry into the condition of a person's health is material, any account given by such person relative to his health is evidence of compiaints and symptoms; but it is not evidence to charge any other person as the cause of those sufferings. By Clerke, J.

To authorize any further proof of the statements and declarations made by a person during his last illness, it is necessary to show that they were mado under the apprehension of death, and that the deceased was conscious of approaching and inevitable death; and it is not necessary that such consciousness should be uttered in express terms, but it may be inferred from the tenor of his conversation, the nature of his sufferings, and his whole demeanor. By CLERKE, J.

Form of an indictment for murder by poison, and of a certificate of a justico of the Supreme Court allowing a writ of error and staying proceedings. Symptoms of poisoning by arsenic, as described by witnesses and proved by a physician.

Mode of conducting a post mortem examination in such a case, as described by a physician.

THIS case came before the Court of Appeals on writ of error to the Supreme Court, sued out by the district attorney of the city and county of New-York. By the return it appeared that in May, one thousand eight hundred and fifty-four, an indictment for murder, in the following form, was found against the defendant in the New-York General Sessions.

City and County of New-York, ss:

The jurors of the people of the State of New-York, in and for the body of the city and county of New-York, upon their oath, present: That Andrew Williams, late of the first ward of the city of New-York, aforesaid, laborer, of his malice aforethought, wickedly contriving and intending one Rose Williams, with poison, willfully, feloniously and of his malice aforethought, to kill and murder, on the twenty-ninth day of April, in the year of our Lord one thousand eight hundred and fifty-four, at the ward,

The People v. Williams.

city and county aforesaid, with force and arms, a certain quantity of arsenic, to wit, two drachms of arsenic, being a deadly poison, feloniously, willfully and of his malice aforethought, did infuse, mix and mingle in and together with a certain quantity of liquor (to the jurors aforesaid unknown), he, the said Andrew Williams, then and there well knowing said arsenic to be a deadly poison. And the said Andrew Wiliams afterwards, to wit, on the day and in the year aforesaid, at the ward, city and county aforesaid, the poison aforesaid, so as aforesaid infused, mixed and mingled with the said liquor (to the jurors aforesaid unknown) aforesaid, feloniously, willfully and of his malice aforethought, did give and administer to her, the said Rose Williams, to take, drink and swallow down into her body; and she, the said Rose Williams, not knowing the poison aforesaid to have been mixed and mingled as aforesaid, afterwards, to wit, on the day and year aforesaid, at the ward, city and county aforesaid, the said poison, so as aforesaid mixed and mingled, by the persuasion and procurement of the said Andrew Williams, did take, drink and swallow down into her body. And thereupon the said Rose Williams, by the poison aforesaid, so mixed and mingled, as aforesaid, by the said Andrew Williams, and so taken, drank and swallowed down into her body, as aforesaid, became then and there sick and distempered in her body; and the said Rose Williams, of the poison aforesaid, and of the sickness and distemper occasioned thereby, from the said twenty-ninth day of April, in the year last aforesaid, until the fourth day of May, in the last year aforesaid, did languish, and languishing did live. On which said fourth day of May she, the said Rose Williams, at the sixth ward of the city and county aforesaid, of the poison aforesaid, and of the sickness and distemper thereby occasioned, as aforesaid, died.

And the jurors aforesaid, upon their oath aforesaid, do say, that the said Andrew Williams, her, the said Rose