
    Supreme Court—Appellate Division—First Department.
    May 8, 1896.
    PEOPLE v. MULLINS.
    (5 App. Div. 172.)
    1. Excise—Accessory.
    On the prosecution of the proprietor of a saloon for unlawfully offering and exposing for sale intoxicating liquor on Sunday, record of conviction, before the court of special sessions, of his bartender for the sale is inadmissible.
    
      2. Same.
    In such case, the deposition of a police officer, given on the examination before a magistrate, as to the guilt of defendant’s bartender for the same sale, is inadmissible.
    3. Same—Accomplice.
    The evidence of an accomplice is not sufficient, unless corroborated.
    Appeal from a judgment, convicting defendant of a violation of the .excise law.
    Charles Goldzier, for appellant.
    John D. Lindsay, for the People.
   INGRAHAM, J.

The appellant was convicted upon the second count of an indictment which charged Mm with having unlawfully offered and exposed for sale certain strong and spirituous liquors, wines, ale, and beer. Upon the trial, the people called as. a witness one Cotter, who testified that he worked for the defendant as a bartender. He was asked whether he was arrested on Sunday, June 30th, for a violation ■of the excise law. He answered that he was arrested for exposure. A record was then produced which was a record of conviction before the court of special sessions, upon a plea of guilty of a violation of the excise law on June 30, 1895, at the premises of wMch the defendant was the proprietor, and for which the witness was fined $50. This record was offered in evidence^ was objected to by the defendant’, and the objection was overruled, and the defendant excepted. We think the admission of this record was clearly error. The defendant was not indicted as an accessory and indeed a-s the crime charged was a misdemeanor he is the principal whether or not, under the law as it f ormerly existed, he would, in the case of a felony, have been am accessory. Upon the question of bis guilt, the conviction of Ms associates for the commission of a crime1 was entirely immaterial, the defendant not being a party to it, and it could have no effect upon the question as to whether or not he was guilty. The court of appeals have expressly held in the case of People v. Kief, 126 N. Y. 663; 27 N. E. 556, which was an. indictment for a felony that, with the change effected by the Penal Code, the distinction between principal and accessory disappeared, and thenceforward he who aided in the commission of a crime became equally guilty with him who committed it, and could be indicted, tried, and convicted as a principal. “If it is immaterial, therefore, upon the question of bis guilt, whether a party engaged in the commission of a felony directly ■committed the crime alleged, or only abetted in its commission, it must be quite immaterial whether one jointly indicted with him for the offense has been -acquitted or not. The question of the one defendant’s guilt cannot turn upon the establishment of the other’s guilt; it is an independent issue, to be tried out alone.” The case of Levy v. People, 80 N. Y. 327, and others of that class, do not apply. That was an indictment under the law as it existed before the change made by the Penal Code, and set out that one Freeman was the principal felon, and that he, with others, had been convicted of the offense, and that the plaintiff in error was charged to have been his accessory. It was there held that the certificate of the conviction- of Freeman was competent evidence to prove that allegation of the indictment, namely, that he had been convicted of the offense charged. There is nothing of that kind in this indictment. The defendant was indicted as a principal. It was not necessary to prove that any one else had been convicted of the offense to establish his guilt; and evidence tending to show ‘that some one else had been convicted of the crime for which he was indicted was plainly incompetent, and could not but have been injurious to the defendant.

In addition to this record, there was produced from the files of the court of special sessions an examination of a police officer before a magistrate, by which he swore that Cotter did offer and expose for sale certain liquor on this 30th day of June, 1895; also, the examination of Cotter before the magistrate; a deposition of a police officer that -one Ward also offered and exposed for sale, upon the same Sunday and at the same place, spirituous liquors; and the examination of Ward upon that charge. These depositions and examinations were read to the jury against the exception of the defendant. It is impossible for ns to imagine upon what principle this deposition could have been competent evidence against this defendant. It was an ex parte statement of a police officer as to the guilt of the defendant’s barkeeper, sworn to in the matter of the charges against the barkeeper, where neither the def endant nor the barkeeper had an opportunity to cross-examine the deponent. The court also admitted, against the objection and exception of the defendant, the record of the conviction of one Ward, who was proved to have been another barkeeper of the defendant, for a violation of the excise law upon the same Sunday. The only evidence connecting the defendant with this violation of the law was the fact that he was the proprietor of the saloon. Cotter, one of the barkeepers, was called and examined as a witness, and swo-re that the defendant was absent from his home on this Sunday; that he did not see, and had no conversation. with, the defendant on the Sunday in question; that he did not go to this place on Sunday by order of the defendant, but that he went there to clean the place up, and, while there, sold some beer, and put the money in the drawer. There was not the slightest competent evidence as against this defendant that either Cotter or Ward committed a crime on that day, except the evidence of Cotter; and, he being an accomplice, 'his evidence is not sufficient, unless corroborated.

There were several exceptions to the charge, which we think well taken, but which it is unnecessary to notice.

For the errors in the admission of this evidence, the judgment must be reversed.

All concur.

NOTE ON “CORROBORATION OF ACCOMPLICE.”

Who an accomplice. Person involved, either directly or indirectly, in the commission of the crime. People v. Smith, 28 Hun, 627; 1 N. Y. Cr. 75.

Person innocently assisting in secreting stolen property is not. People v. Ricker, 22 S. R. 653; 7 N. Y. Cr. 22.

Nor person who has acted as detective and informer. Berry v. People, 1 N. Y. Cr. 43, 57; People v. Noelke, 29 Hun, 465; 91 N. Y. 142.

Nor purchaser of lottery ticket. People v. Noelke, 29 Hun, 465; People v. Emerson, 20 S. R. 18; 6 N. Y. Cr. 158; 5 Supp. 374.

Nor purchaser under former excise law. People v. Smith, 28 Hun, 626; 1 N. Y. Cr. 74.

Nor tvoman who submits to abortion. People v. Meyers, 7 S. R. 221; 5 N. Y. Cr. 126; People v. Vedder, 98 N. Y. 630; 3 N. Y. Cr. 32; People v. Dunn, 29 N. Y. 523; People v. McGonegal, 136 id. 62; 48 S. R. 904.

Nor is a person, who is accomplice of the woman in the commission of the crime defined in section 295, an accomplice of a defendant indicted under section 294 of Penal Code. People v. McGonegal, 136 N. Y. 62; 48 S. R. 904.

Corroborating evidence. Corroborating evidence is sufficient, if it fairly tends to connect defendant with commission of crime. People v. Everhardt, 104 N. Y. 594; 5 S. R. 793; 2 Silv. (Ct. App.), 506; 6 N. Y. Cr. 231; People v. Ryland, 28 Hun, 570; 16 W. D. 232; People v. Courtney, 28 Hun, 589; 1 N. Y. Cr. 64; aff’d, 94 N. Y. 490; People v. Wayman, 3 Silv. (Ct. App.), 493; People v. Wiley, 48 S. R. 498; People v. Bosworth, 64 Hun, 75; 45 S. R. 514; 19 Supp. 115; People v. Elliott, 8 S. R. 223; 7 N. Y. Cr. 129; People v. White, 62 Hun, 115; 41 S. R. 833; 16 Supp. 571; People v. Jaehne, 103 N. Y. 182; 3 S. R. 11; People v. O’Neill, 109 N. Y. 251; 14 S. R. 829; People v. Plath, 100 N. Y. 590; People v. Thompson, 3 N. Y. Cr. 563; 21 W. D. 346; People v. Christy, 65 Hun, 349; 47 S. R. 926; 8 N. Y. Cr. 483; 20 Supp. 279; People v. Ryland, 97 N. Y. 131; aff’g 28 Hun, 568; 16 W. D. 232; People v. Christian, 78 Hun, 28; 60 S. R. 814; 29 Supp. 271.

So, if it confirms material parts of testimony relating to the corpus of the offense. People v. Everhardt, 5 N. Y. Cr. 91; aff’d 104 N. Y. 594; 14 S. R. 829; 2 Silv. (Ct. App.), 506; 6 N. Y. Cr. 231.

No conviction can be had upon the testimony of accomplice uncorroborated. People v. White, 62 Hun, 120; 41 S. R. 837; 16 Supp. 571; People v. Kunz, 58 S. R. 740; 27 Supp. 945; People v. Christian, 78 Hun, 28; 60 S. R. 814; 29 Supp. 271.

Whole case need not be proved outside of testimony of accomplice. People v. Hooghkerk, 96 N. Y. 162; 2 N. Y. Cr. 204; 67 How. 256.

Corroborating evidence, which merely raises a suspicion of guilt, is insufficient. People v. Williams, 29 Hun, 520; 1 N. Y. Cr. 336; 17 W. D. 356; People v. Kerr, 6 N. Y. Cr. 406.

It need not be inconsistent with innocence of defendant, nor exclude every hypothesis but that of guilt. People v. Ogle, 104 N. Y. 511; 5 S. R. 740; 6 N. Y. Cr. 168; aff’g 4 id. 349; People v. Elliott, 8 S. R. 223; 7 N. Y. Cr. 129.

It may consist of a series of facts, having no force unless in combination, may be shown by more than one witness, or as occurring on more than one occasion. People v. Ogle, 4 N. Y. Cr. 354; aff’d, 104 N. Y. 511; 5 S. R. 740; 6 N. Y. Cr. 168; People v. Sharp, 5 id. 388; People ex rel. Doherty v. Board of Police Com’rs, 65 S. R. 175; People v. Terwilliger, 74 Hun, 310, 313; 56 S. R. 225; People v. Hooghkerk, 96 N. Y. 149, 162; People v. Everhardt, 104 id. 591; 5 S. R. 793; People v. Ogle, 104 N. Y. 511, 515; 5 S. R. 740; People v. Jaehne, 103 N. Y. 182; 3 S. R. 11; McCarthy v. McCarthy, 143 N. Y. 235; 62 S. R. 184; People v. Elliott, 8 id. 223; 7 N. Y. Cr. 129.

Corroboration is not afforded by his other testimony. People v. Courtney, 28 Hun, 589; 1 N. Y. Cr. 64; aff’d, 94 N. Y. 490.

Whether corroborating evidence meets the requirements of section 399 of Code of Criminal Procedure, is a question of law. People v. Courtney, 28 Hun, 594; 1 N. Y. Cr. 71.

But the question whether it amounts to a sufficient corroboration, is for the determination of the jury. People v. Everhardt, 104 N. Y. 594; 5 S. R. 793; 2 Silv. (Ct. App.), 506; 6 N. Y. Cr. 231; People v. Elliott, 8 S. R. 223; 7 N. Y. Cr. 129; People v. Kerr, 6 id. 406.

Court should not submit case to jury, unless satisfied that there is some corroborative evidence, fairly tending to connect defendant with the commission of the crime. People v. Elliott, 8 S. R. 223; 7 N. Y. Cr. 129. 1

See further on this subject, People v. Friedlander, 63 Hun, 259; 43 S. R. 448; 18 Supp. 218; People v. Emerson, 20 St. Rep. 18; 5 Supp. 375; People v. Drown, 38 S. R. 986; 14 Supp. 742; People v. Ricker, 51 Hun, 643; 22 S. R. 652; 4 Supp. 72; Crary v. Crary, 46 S. R. 308; People v. Sanborn, 14 id. 123; People v. Bliven, id. 495.  