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THIRD DEPARTMENT, DECEMBER TERM, 1874.

material modification. * But it was original evidence as distinguished from hearsay. The term hearsay, in its legal sense, as defined by the elementary writers, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part, on the veracity and competency of some other person.† The narrative given of a past transaction by the deceased, before she was under apprehension of death, as testified to by a witness who heard it, would clearly fall within the rule as hearsay, because, in determining the material question whether the narrative was true, it would be necessary to consider the credibility of the witness, and the veracity of the declarant. But the declarations of third persons, not under oath, do not always relate to past transactions, and are not therefore necessarily hearsay. Very often the material fact to be ascertained from the evidence simply is, whether the alleged threat or declaration was made, and not whether as a statement or narrative it was really true. In such a case the mere fact whether the declaration was made, depends solely on the credibility of the witness who testifies that he heard it, and such testimony is, therefore, strictly and properly original evidence. Now, it was a material fact, under the issues in this case, whether the deceased had ever threatened to resort to poison for the purpose of self-destruction, or the destruction of her children. It was, if true, an independent fact, of more or less importance, according to the circumstances, although it did not follow that she had actually carried the threat into execution. Her threat to commit suicide (whether in direct terms or by implication would only affect the weight of the evidence), was as competent and material for the defense as were the threats of the accused against her life for the prosecution. The utterance of the threat is received in evidence as a fact or circumstance indicating an intention on the part of the person making it to commit the crime; and, if the intention be clearly shown, a probability is thereby created, that, upon a favorable opportunity, it would be carried into effect. But this result, or probability, is wholly a matter of infer

*Insurance Company v. Mosley, 8 Wall., 397; Hanover R. R. Co. v. Coyle, 55 Penn., 402; Ransom v. Hoigh, 2 Bingh., 99; Commonwealth v. M'Pike, 3 Cush., 181.

+1 Greenl. Ev., § 99; 1 Phill. Ev., 185.

THIRD DEPARTMENT, DECEMBER TERM, 1874.

ence for the court or jury, in determining the weight to be given to the fact that the threat was made, in connection with the other evidence in the case. Until the fact is established, there is no ground for the inference, and the proof of the fact depends exclusively on the amount of credit to be given to the witness. This precise question does not seem heretofore to have been the subject of judicial investigation in this State. The rule, however, above stated, was recognized, and similar declarations admitted, by a very eminent authority on evidence, from his great learning and experience as a nisi prius magistrate, the late Judge EDMONDS, in the case of People v. Knapp.* Similar declarations were also held admissible, and the general doctrine considered and approved by the Court of Appeals, in the recent case of People v. Stokes. And in other States, whenever the question has been judicially examined, the same general conclusion has been adopted. For these errors the conviction and judgment must be reversed, and a new trial granted.

HARDIN, J.:

Courts of Oyer and Terminer shall be composed of a justice of the Supreme Court, who shall preside, the county judge and the justices of the peace, designated as members of the Court of Sessions, and the presiding justice, and any two of the other officers above mentioned, shall have power to hold said court. §

Under this provision the court was properly organized, when the trial was commenced before a circuit judge, the county judge of Washington county, and the two justices of the peace, designated as justices of the sessions of said county. Several days were devoted to the taking of evidence, and an adjournment over Sunday had, before a court regularly and properly constituted. When the court reassembled, Justice STEERE was absent, and the court proceeded, composed of one justice of the peace, the county judge and the circuit judge. The evidence taken on Monday, * 1 Edmonds' Select Cases, 177. State v. Goodrich, 19 Verm., 116; Keever v. The State, 18 Ga., 194, 224-228; Commonwealth v. Wilson, 1 Gray, 337; Campbell v. The People, 16 Ill., Cornelius v. Commonwealth, 15 B. Mon., 539.

Vol. 4, N. Y. Stat. (Edms. ed.), 566, sec. 38.

† 53 N. Y., 164, 174.

17;

THIRD DEPARTMENT, DECEMBER TERM, 1874.

and during the absence of Justice STEERE, was taken before a court composed of three of the officers named in the statute, having "power to hold said court." If the trial had continued to its close before the court thus constituted, it may be conceded that it would have been regular, and no error could have been predicated upon the absence of Justice STEERE. But on Tuesday morning, after

his absence from the court on Monday, and without having heard the evidence given during Monday, and without having read the evidence thus given during his absence, and without the evidence being again given, Justice STEERE returned to the court-room, resumed his seat upon the bench, joined the court, and took part in its deliberations and all the subsequent part of the trial. Whenever an objection was made by the prisoner's counsel to evidence, and it became necessary for the court to deliberate upon the proper ruling, Justice STEERE took part, it must be assumed, and his voice and vote were as potential in affecting the rights of the prisoner, as well as the interests of the prosecution, as the vote of the other justice of sessions, the county judge or even the circuit judge. The latter three had heard all the evidence given upon the trial, and therefore could intelligently and understandingly pass upon the question involved in the deliberation. Certainly their understanding and intellects were better prepared, by reason of having heard the whole evidence, than was STEERE'S who had not heard the evidence taken on Monday, when he was absent from the court-house. His vote and voice upon any question arising upon the trial after his return, may have produced a different result from what they would, had he remained during the whole trial, heard the whole evidence, and given his reflective judgment to it, preparatory to voting and speaking in the deliberations which ensued after his return to the bench which he had, so far as the parts of the trial which took place on Monday, vacated and abandoned? It is not for us to speculate, in a case where the life of a prisoner is involved, as to the extent of the influence of the vote and voice of one who has not heard the whole evidence. The prisoner is entitled to the full benefit of the understanding and judgment of those who take part in the judicial deliberations which affect his life; he is entitled to all the forms of law, to all the provisions of the Constitution by which his rights

THIRD DEPARTMENT, DECEMBER TERM, 1874.

are secured. Where life is involved, the law humanely provides that the prisoner stands upon all his rights, and does not and cannot waive them.*

The learned counsel for the people insist that no error was committed by reason of the absence during a portion of the trial of Justice STEERE. But we cannot say that no injury was done to the rights of the prisoner, for it manifestly appears that it may have done him some injury. † It is provided by statute, that no judge shall decide "or take part in the decision of any question which shall have been argued in the court when he was not present and sitting therein as a judge." Though the technical language of that section may not apply here, yet the same reasons exist for holding that STEERE should not take part in the decisions, necessary to be made, after his return to the trial, as apply under the statute above cited to prevent a judge from deciding when he has not heard the argument. We are referred to Corning v. Slosson, § by the learned counsel for the people, where it was held, that three judges might hold a General Term and render a decision, when only two of them had heard the argument of the cause. In that case two constituted a majority of the court, and it was assumed that in the decision they concurred, and that they had conferred with their associate who heard the argument, but did not sit when the decision was handed down, and that the judge who had not heard the argument, and did sit to constitute a quorum when the decision was handed down, took no part in the decision. Here it must be assumed that Justice STEERE participated in the trial, which resulted in the prisoner's conviction and sentence of death; that at one stage of the trial, to wit, when the sentence was pronounced, he was essential to constitute a quorum. It was held in the case in 45 New York (supra), that asking the prisoner what he had to

*People v. McKay, 18 John., 212; Cancemi v. People, 18 N. Y., 128; Arundell's case, 6 Coke, 14; People v. White, 22 Wend., 167; S. C., 24 id., 520; Safford v. People, 1 Parker Cr. R., 474; Shepherd v. People, 25 N. Y., 406; Blend v. People, 41 id., 606; Messner v. People, 45 id., 1; Stokes v. People, 53 id., 164; Dohring v. People, 2 S. C. R., 458.

Shorter v. People, 2 Comst., 193; Willis v. People, 5 Parker, 647; People v. Fernandez, 35 N. Y., 49; Fralich v. People, 65 Barb., 48; Stokes v.

N. Y., 164.

+2 Revised Statute (Eds. ed.), 284, section 2.

People, 53

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THIRD DEPARTMENT, DECEMBER TERM, 1874.

say, why the sentence of the court should not be pronounced, was part of the trial, and that its omission was error, and such a one as called for a reversal and a new trial, and that the court could not say that a regular and legal trial had been had, and under the amendment of 1863 remitted the record for the proper sentence and judgment. Also in People v. Lake* it was held to be error in a court of Oyer and Terminer, to permit a physician who did not hear all the evidence relating to the mental condition of the prisoner, to give opinions as to her sanity, founded on the portions of the evidence heard by him. By parity of reasoning it may be said to be erroneous for a member of the court to take part in the deliberation, consultation and rulings, when he has not heard the whole evidence given upon the trial. † The participation of Justice STEERE in the trial after his absence from the court-house, while the whole of Monday's evidence was given, was against the provision of the law and Constitution giving a jury trial before a regularly constituted court, the members of which should hear all the evidence and proceedings. It certainly is against public policy to allow a party to be deprived of his life by a tribunal, of which it can be said, that a portion thereof has not heard the whole evidence and proceedings which result in the sentence of death.

These views as well as those expressed in the elaborate and able opinion of brother COUNTRYMAN, lead me to vote for a reversal of the conviction.

BOCKES, P. J., and HARDIN, J., concurred in the opinion delivered by COUNTRYMAN, J.

Conviction and judgment reversed, and new trial granted.

* 2 Kern., 362.

+ McCann v. People, 3 Park. C. R., 272.

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