
    Andrew J. Kelley et al., Plaintiffs in Error, v. The People of the State of New York, Defendants in Error.
    The property qualification of a juror, when questioned by a challenge, must be that required to authorize the original selection of the individual as a juror. (3 E. S., 411, § 13.) So far as depends upon the ownership of personalty, it must appear and be evidenced by the assessment roll; the provision of the statute (3 E. S., 415, § 33) requiring the court to discharge a juror when he is not the owner of real or personal property, as prescribed, is not designed to affect challenges, but to give a right to the juror to be discharged on his own motion.
    Accordingly, held, where upon challenge of a juror it appeared, that when placed on the jury list, he was the owner of a farm, for which he was assessed, but was not assessed for personal property, and that before . the trial he sold his farm, taking back a mortgage, that he was not eligible; and that the challenge was properly sustained.
    (Argued January 20, 1874;
    decided January 27, 1874.)
    Upon a criminal trial, evidence that the accused, when charged with the offence,- or when declarations touching his guilt were made in his . presence and hearing, remained silent when it would have been proper for him to have spoken, is competent, and it is no objection to the admission of the evidence that the accused was, at the time, under arrest.
    The accused, however, is only called upon to deny statements of the truth or falsity of which he has personal knowledge; and, to make'such evidence admissible, it must be of such statements.
    Upon the trial of an indictment for grand larceny, evidence was received, on the part of the prosecution, under objection, that after the arrest of the prisoners the prosecutor went to their place of custody to identify them; that he did identify them, and charged them with participating in the offence, stating to the officers the part each took, and describing the money stolen, to which the prisoners made no reply. Upon one of the prisoners was found two parcels of money, one answering the description given by the prosecutor; the prisoner requested that the two parcels should be kept separate, as the other was “bar money.” . EM, that the evidence was competent, as an implied acquiescence on the part of the accused in the truth of the prosecutor’s statements. .Commonwealth v. Kenney (13 Met., 335) distinguished.
    Where there is sufficient evidence to justify the conclusion .that different persons, charged with a crime, were all acting with a common purpose and design, although it does not appear that there had been a previous combination or confederacy to commit the particular offence, yet.the acts and declarations of each, from the commencement to the consummation of the offence, are evidence against the others.
    A conspiracy may be proved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances, and their general connection or otherwise) be satisfactorily shown to be confederators in the commission of the offence.
    Error to the General Term of the Supreme Court in the third judicial department, to review judgment affirming judgment of the Court of Oyer and Terminer, in and for the city and county of Albany, entered upon a verdict convicting plaintiffs in error of the crime of grand larceny.
    The plaintiffs in error and two others, James Mulhall and James Palmer, were indicted together.
    
      Upon the trial one John Perry was called as a juror, who, upon a challenge for principal cause interposed upon the part of defendants, said that he was a farmer and lived in Guilder-land ; sold out his farm last spring and had no title to any real estate at the time of this examination, and could not tell, of his own knowledge, that he was assessed for any personal property this year, he was not assessed last year for personal property, but was for his farm, some $18,000 or $19,000; sold his farm for $22,000 and took back a bond and mortgage in his own name; gave a deed of his farm last spring. The challenge was withdrawn on the part of the defendants and renewed on the part of the people, whereupon the same evidence was given as before. The court sustained the challenge; to which decision counsel for defendants duly excepted.
    The prosecutor, Job H. Reynolds, testified that he came to Albany from Michigan and took passage on the night boat for Hew York. While in the saloon of the boat, before its departure, he entered into conversation with a stranger, who told him that a man had been killed on the railroad, upon whom papez’s were found showing him to have come from Michigan, and he asked Reynolds to go with him to see if he could identify him. This conversation was objected to by the prisoners’ counsel and received under objection. Reynolds went with the stranger, but found no dead man. He was enticed into a saloon where the prisoners were and his money was there stolen. After the arrest of plaintiff in error, Clune, Reynolds saw Mulhall; he pointed him out to the officer having Clune in charge, saying, “ there is another of them.” This evidence was also received under objection. Reynolds went with an officer by the name of Sullivan on board of the steamer to search for the man who enticed him away. The officer left in chazge of Clune testified that, after they left, Mulhall stepped up to Clune and said, “ Sullivan is all right, or will make it all right.” Objected to, and received under objection. After the arrest of plaintiffs in error, Kelly and Ormsby, Reynolds was taken to the station-house to identify them. When they were brought in Reynolds pointed them out as two of the persons engaged in the larceny. He told what part each one took, and also described his money. The prisoners made no reply. Objected to, and received under objection. On searching Ormsby two parcels of money were found upon him; one answering the description given by Reynolds. The other parcel Ormsby asked to have kept separate, saying it was bar money.
    Further facts appear in the opinion.
    
      R. W. Peckham for the plaintiffs in error.
    It was error for the court to admit evidence as to the silence of the accused, when at the station-house under arrest Reynolds pointed them out to the police officers and declared them to be guilty. (1 Phil. Ev. [C. H. & E.’s ed.], 436-442, 443, 445 ; Rex v. Appleby, 3 Stark. N. P. Cas., 33 ; Rex v. Turner, 1 Moody C. Cas. Res., 347; Meten v. Andrews, 1 Mood. & Malk., 336; Child v. Grace, 2 C. & P., 199 ; Rex v. Hollingshead, 4 id., 242 ; Sheridan v. Smith, 2 Hill, 538 ; 1 Greenl. Ev., § 199 ; 1 Phil. Ev., 400; Commonwealth v. Kinney, 12 Metc., 235 ; Burr, on Cir. Ev., 482.) Such evidence could not be used to strengthen Reynolds’ testimony. (Robb v. Hackley, 23 Wend., 50; Dudley v. Bolles, 24 id., 465; 1 Stark. Ev., 187; 1 Phil. on Ev., C. & H. Notes, 306-308 [2 Am. ed. of 1843].) Reynolds’ declaration as to the kind of money he had on him was inadmissible. (1 Phil, on Ev., 400 [3d ed., 1849]; 2 Russ, on Crimes, 865, note; Robinson v. Blen, 20 Me., 109.) A conspiracy must be established by other and satisfactory evidence before the declarations of a third party are admissible against another alleged conspirator. (40 N. Y., 228, 229; 2 Russ, on Crimes, 696, 697, note; 1 Whart. Am. Crim. Law, §§ 702, 703; 1 Greenl. on Ev., § 111; 1 Archb. Cr. Pr. and Pl, 409, note; 1 Phil. on Ev., C. & H. and Eds.’ Notes [1st ed.], 83, 185, note 205, 208 ; Waterbury v. Sturtevant, 18 Wend., 353; The State v. Dean, 13 Ired., 53; Moore v. Meacham, 10 N. Y., 207; Matter of Taylor, 9 Paige, 611; People v. Parish, 4 Den., 153 ; Newlin v. Lyon, 
      49 N. Y., 661; Cuyler v. McCartney, 40 id., 221; Erben v. Lorillard, 19 id., 299.) Perry was a competent juror, and his rejection was error. (2 R. S., 412, § 13 ; id., 415, § 33.) A new trial should be granted, unless it is shown that no injury could possibly have resulted from the error. (People v. Gonzales, 35 N. Y., 59; Greene v. White, 37 id., 405 ; Starbird v. Barrons, 43 id., 200, 204.)
    
      JSf. C. Moak, district attorney, for the defendants in error.
    The motion for a separate trial, as to Palmer, was properly granted. (1 Bish. Crim. Proc. [2d ed.], § 1018; Commonwealth v. Robinson, 1 Gray, 555; People v. Williams, 19 Wend., 377; Allen v. State, 10 Ohio St., 287.) The court properly held that Perry was not a qualified juror. (2 R. S., 411, § 13, sub. 3; 2 Edms.’ Stats., 428, 429; Grah. Pr. [2d. ed.], 299; 1 id. [3d ed.], 744; 1 Burr. Pr., 454; Coke on Litt., 156; Edwards’ Juryman’s Guide, 54, 93; 2 T. & S. Pr., 459, 463 ; 1 Edms.’ Stats., § 8, 363 ; Mygatt v. Washburn, 15 N. Y., 318-320; Rundell v. Lake, 40 id., 513; Cochran v. Gould, 106 Mass., 29.) If he was competent, the rejection of him was no ground for a reversal. (People v. Gonzales, 35 N. Y., 60; Fralich v. People, 65 Barb., 48,51; Ellington v. Ellington, 47 Miss., 351, 352; Freeman v. People, 4 Den., 9.) It was proper to receive in evidence Beynolds’ opinion as to the genuineness of the money which was stolen from him. (Remsen v. Hannigan, 57 Barb., 324, 336; People v. Fallon, 6 Park., 256; 2 Bish. Crim. Proc. [2d ed.], § 469; People v. Paris, 21 Wend., 309.) It was proper to receive evidence as to what took place between Beynolds and Mulhall on the steamboat. (Rex v. Parsons, 1 W. Bl., 392, 401; Rex v. Cope, 1 Stra., 144; Rex v. Murphy, 8 C. & P., 297, 309, 310 ; U. S. v. Cole, 5 McL., 513, 601; 2 Bish. Crim. Proc. [2d ed.], § 227.) A conspiracy may be proved by the acts of the parties or by circumstances, as well as by their agreement. (John Taylor's case, 1 City Hall Rec., 192; Street v. The State, 2 Morris’ State Cas., 1591; Commonwealth v. Eaton, 8 Phila. R., 419 ; 2 Bish. Crim. Proc. [2d ed.], §§ 228-231; Ros. Crim. Ev., 88, 383-387; Scott v. The State, 30 Ala., 503.) The fact that the police officer did not hear all the conversation, did not render what he heard inadmissible. ( Williams v. Keyser, 11 Fla., 234.) The fact that a person charged with a crime is under arrest, does not render what he says or does inadmissible. (People v. Wentz, 37 N. Y,, 303; People v. Montgomery, 13 Abb. [N. S.], 209 ; People v. Long, 43 Cal., 444; Commonwealth v. Cuffe, 108 Mass., 285 ; Commonwealth v. Crocker, id., 464.) What a third person says in the presence of the person charged, is admissible against him if he remains silent. His silence must be taken as an acquiescence in its truth. (McKee v. People, 36 N. Y., 116 ; Hochrieter v. People, 2 Abb. Ct. Apps., Decis., 363; Cas. in Ct. Apps., Ct. Apps. Lib., vol. 144, case 1, pp. 10, 11; Donnelly v. The State, 26 N. J. L. [2 Dutch.], 464; Bartlett’s case, 7 C. & P., 832; 1 Phil, & Amos., § 696; Joy. on Conf.,77; 1 Greenl. Ev., §§ 197,215; Whart. Cr. L., § 696 [ed. 1857] ; Commonwealth v. Kenney, 12 Metc., 235; 26 N. J. L. R., 601, 613; Spencer v. The State, 20 Ala., 24, 27; Rex v. Smithers, 5 C. & P., 332; Best on Presump., § 241; Burr. Cir. Ev., 482, 483; MacDonald’s Cr. L. of Scotland, 543; People v. McCrea, 32 Cal., 98; 2 Russ, on Crimes, 866, citing 1 Phill. Ev., 400; Lewis v. Blair [High Ct. Scotland], 3 Irvine, 16; 1 Taylor’s Ev. [6th ed.], § 739 ; Fenns v. Weston, 31 Verm., 345; Mattocks v. Lyman, 16 id., 113; Liles v. State, 30 Ala., 24; Johnson v. State, 17 id., 624; Martin v. State, 28 id., 81; Rosc. Cr. Ev., 115; Fralich v. People, 65 Barb., 48, 51; Jewett v. Banning, 21 N. Y., 27, 29.) Statements made by the accused as a witness in exculpation of another charged .with the same offence, may be proved. (MacDonald’s Cr. L. of Scotland, 543'; Edmondston’s case, 1 Scotch L. R., 107; 2 Russ. on Crimes, 865, 866.) Where there is a question of identity it is proper to show that a witness, unacquainted with a party, identified him shortly after the occurrence. (Reg. v. Blackburn, 6 Cox Cr. Cas., 333; Rex v. Deering, 5 C. & P., 165.)
   Allen, J.

The voluntary declarations and admissions of one on trial for a criminal offence, that is, those not made under duress, or induced by menaces or promises, are always evidence against the party making them, and are more or less cogent as evidence of guilt, depending upon the circumstances under which they are made. The same principle gives effect to the action of the accused as evidence tending to prove or disprove his guilt. (Teachout v. People, 41 N. Y., 7; People v. Wentz, 37 id., 303; Commonwealth v. Cuffee, 108 Mass., 285; Same v. Crocker, id., 464.) When the conduct of the accused, either before or after being charged with the offence, is given in evidence, it is for the jury to draw the proper inferences and determine whether it is consistent with innocence, or is indicative of a guilty mind, proving more or less conclusively the commission by him of the particular offence charged. (Roscoe’s Cr. Ev., 18; People v. Rathbun, 21 Wend., 509.)

Where an individual is charged with an offence, or declarations are made, in his presence and hearing, touching or affecting his guilt or innocence of an alleged crime, and he remains silent when it would be proper for him to speak, it is the province of a jury to interpret such silence, and determine whether his silence was, under the circumstances, excused or explained. At most, silence under such circumstances is but an implied acquiescence in the truth of the statements made by others, and thus presumptive evidence of guilt, and in some eases it may be slight, except as confirmed and coroborated by other circumstances. But it is some evidence, and therefore, except in those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation, or in a discussion between third persons not addressed to or intended to affect the accused or induce any action in respect to him, so that for him to speak would be a manifest intrusion into a discourse to which he was not a party, the evidence is competent and should be admitted. Any declaration of the individual in response to a statement so made would he admissible in evidence, and an omission to make any answer to it or to notice it, like other acts of the party, is to be interpreted, and such effect given to it as evidence, in connection with the other circumstances of the case, as the jury in their discretion shall think it entitled to. The implication of assent to a statement affecting the guilt or innocence of an individual, from an omission to controvert, a, qualify or explain it, arises from the fact that a person know-V ing the truth or falsity of a statement affecting his rights, ' made by another in his presence, will naturally, under circumstances calling for a reply, deny it, if he be at liberty to do so, if he do not intend to admit it. (Donnelly v. State, 2 Dutcher, N. J. R., 601.) It is no objection to the admission of the declarations of the accused, as evidence, that they are made while he is under arrest, and his admission, either express or implied, of the truth of a statement made by others under the same circumstances is equally admissible. His conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency as evidence will be determined by the jury. (People v. Wentz, supra ; Hochrieter v. People, 2 Abbott’s Court of Appeals Decisions, 363 ; McKee v. People, 36 N. Y., 113 ; Teachout v. People ; Commonwealth v. Cuffee, and Same v. Crocker, supra.)

The case of the Commonwealth v. Kenney (12 Met., 235), was peculiar in its circumstances, and the opinion by the learned chief justice, speaking for the court, would seem not to be in harmony with the current of authority in this country or in England, or with the elementary writers. It is distinguishable from this case in this, that there was no direct evidence of the body of the offence, nor any evidence of the main fact; except as implied by the omission of the prisoner to deny the statement of the individual claiming to have been robbed, of the fact of the robbery and a description of the money lost. To make the evidence admissible as. an implied admission of the fact statéd, it had to be assumed that the accused had personal knowledge of the facts stated ; for he was only called upon to deny and could only deny statements of the truth or falsity of which he had personal knowledge. Here the corpus delicti was proved by other evidence, and neither the declarations of the prosecution nor the admission of the prisoners, either express or implied, were relied upon for that purpose. The sole object and purpose of the evidence objected to was to identify the persons accused as the individuals committing the offence, and upon that question they were well qualified to speak and knew whether the statements of the prosecutor were true or false. The declarations and statements of the prosecutor, in the presence and hearing of Kelley and Ormsby at the second precinct station-house, with proof that the prisoners did not controvert them, were properly given in evidence. The persons named had been arrested upon hot pursuit immediately after the offence, without process, and taken to that place for safe custody, and the' prosecutor was there to identify them and have them further detained if he should recognize them as among those concerned in the alleged larceny. He did identify them and charged them with participating in the robbery, stating the part each took in the commission ot the offence: and it was not only proper for the prisoners to speak if the prosecutor was mistaken and they were innocent, but the circumstances were such as apparently to call for a denial. Although the statements were not addressed directly to them, they were the subjects of the conversation and parties to it, in this that they could with propriety and without a breach of decorum take part in it. They were for all practical purposes parties to the discussion. The declaration was in substance a challenge to them to assert their innocence if they were not guilty. The description of the money by the prosecutor was not a very material part of the transaction, but it was not incompetent. It was clearly not irrelevant, and, taken in connection with the fact that the description tallied with that of one parcel of money immediately thereafter found on the person of one of the prisoners, who made a request that the two parcels found on him should be kept separate, as the other parcel was “ bar money,” making no reference to that which had been so well described 'by the prosecutor, or controverting Ms claim to it, gave it significance, and made it material as an implied acquiescence in the truth of the statement of the prosecutor that he had been robbed of that money by the prisoners and their associates.

It is true that the record does not show that the prosecutor gave evidence of any reply or omission to reply to the statements, but the counsel for the prisoners objected to evidence that the prisoners remained silent when the prosecutor described the money lost and declared that they were the persons who had taken it, and the objection was overruled and exception taken, and other witnesses present at the same interview supplied the omission and proved that they made no answer or statement except that referred to in respect to the two parcels of money, and a statement by both that the prosecutor was mistaken as to a third person whom he supposed was present at the larceny, they declaring he was not present. The correction of the mistake of the prosecutor, as to the presence of one of the individuals accused by him, gives significance to their silence as to their own presence at and participation in the robbery. The statements of the prosecutor were only in evidence as laying the foundation for and giving character and effect to the declarations, as well as the silence of the prisoners, and were not proved either as evidence of the facts stated or as corroborative of the testimony of the prosecutor-in-ehief. All the circumstances necessary to render the evidence admissible, and give effect to the silence, as well as the declarations of the accused, were present.

1st. The statements and declarations of the prosecutor, identifying the prisoners, were pertinent and relevant to the occasion upon which they were made, and the offence to which they related, and the detention of the accused. They were part of the res gestw.

2d. They were made in the presence and hearing of the parties interested, and whose rights were affected by them, and under circumstances which rendered a contradiction or explanation by the prisoners proper and reasonable, if they were not true.

3d. They were of matters, the truth of which was known to the accused,

4th. A reply by the prisoners would have been natural and proper if the statements were false.

The evidence of the remark of Mulhall, to the prisoner Olune, that Sullivan, one of the officers aiding in the arrest, was all right, or would make it all right, was objected to as incompetent and immaterial. There was prima facie evidence of a combination and confederacy between Mulhall, Olune and the others aiding in the commission of the offence, 'and any conversation between Olune and Mulhall, relating to the offence or the means of avoiding detection or evading punishment was competent as against either, and it was only proved as against Olune, Mulhall not being on trial. It was pertinent and relevant to the issue, and, therefore, it was not error to admit it, although it is believed it could not have affected the result of the trial. It was certainly not so material that it might not have been stricken out without essentially weakening the prosecution. As said by Judge Gowen, in People v. Raihbun (supra), of circustantial evidence, it is extremely difficult to establish a case of irrelevancy in the matter of the declarations and conduct of persons accused of crime, or of confederates in crime in the presence of each other. The acts and declarations of the person by - whom the complainant was enticed from the steamboat and led to the saloon where the larceny was committed, were clearly competent as a part of the res gestee There was abundant evidence to justify the conclusion that the parties were all acting with a common purpose and a common design, and although there may have been no previous combination or confederacy to commit this particular offence, the conduct and actions of the several parties, and the parts they severally performed in the actual perpetration of the crime, was sufficient to make the acts and declarations of each, from the commencement to the consummation of the offence, evidence against the others.

A conspiracy may be proved, as other facts are proved, by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result and the consummation of the same offence, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offence. One party may allure the victim into the den, leaving it to others to effect the robbery, and all will be held equally guilty as confederates. Here the decoy remained with the victim until the larceny was committed, and his relation to and intimacy with the persons on trial were such as to authorize the jury to draw the conclusion that there was a conspiracy between all those present or taking any part in the transaction. The declarations were not given in evidence to prove the guilt of the parties on trial, and as the declarations of one conspirator against another, but as a part of the res gestee, a part of the history of the transaction, and as such it was competent. The means adopted to entice the complainant from the steamboat were as much a part of the larcenous taking of the money, contributing as directly to the commission of the completed offence, as was the taking of the money by Ormsby. Both and all that intervened were parts of the one transaction, culminating in the robbery effected by all the means employed by the offenders, whether in the presence of each other or when separated,

There was no error in the admission of evidence of the direction of the complainant to the officer to arrest Mulhall, given in the presence of Clune. It could not have prejudiced the prisoners on trial, and was a part of the history of the pursuit and arrest of the offenders immediately after the commission of the offence, and may properly be regarded as a part of the res gestee transpiring in the presence of the prisoners as against whom only it was proved. But while it was not irrelevant, it is enough that by no possibility could it have prejudiced the prisoners or' affected the result of the trial. Another answer might be found to the suggestion of error by reason of the admission of the evidence in the form of the objection and exception. The first question objected to was, “What did Reynolds say ?” It having been proved that Clune was present and in hearing, and the evidence being offered against him, the. question was competent and the objection properly overruled. The answer was, “ There goes the other one,” or one of the parties,” “ the lawyer ” pointing to Mulhall, and this was objected to as not rebutting evidence,” and on no other ground. If not strictly replicatory, although given in response to the evidence on the part of the defence, it was discretionary with the court to permit the prosecution to give evidence not strictly responsive, and an exception does not lie to the exercise of such discretion.

One Perry, drawn and appearing as a juror, was challenged by the prisoners, and on examination it appeared that at the time he was put on the jury list he was a freeholder owning a - farm in Guilderland, for which he was assessed, but was not assessed for personal property. Before the trial he had sold his farm, taking back a mortgage for a part of the'purchase-money, and at the time of the trial was not a freeholder and was not assessed for. personal property. The challenge of the prisoners was withdrawn, but renewed by the prosecution and the juror discharged. The qualifications of jurors are prescribed in the directions to the town officers whose duty it is to select them and prepare the lists from which the ballots are prepared for the drawing of jurors. (2 R. S., 411, § 13.) The direction is to take such only as, possessing the other qualifications, are at the time assessed for personal property belonging to them in their own right to the amount of $250, or who shall have a freehold estate in real property in the county belonging to them in their own right, or in the right of their wives, to the value of $150. The juror was not qualified, and could not at the time of the trial, have been selected as a juror by the town officers, or been placed on the list of jurors. A subsequent section of the same statute (§ 33) makes it imperative upon the court to discharge any person from serving on a jury, when it shall appear that he is not at the time the owner of the freehold estate or real property prescribed by the statute, “ and is not the owner of personal property to the value of $250; ” and it is claimed, on behalf of the plaintiffs in error, that, it not appearing that the juror did not own personal property to the amount named, it was error to allow the challenge of the prosecution. But this section was not designed to regulate or affect the challenges, but to give the right to the juror to be discharged on his own motion. The property qualification of the juror, so far as it depends upon the ownership of personalty, must appear and be evidenced by the assessment roll, and suitors are entitled to the benefit of the challenge if this is wanting. When a juror applies in his own behalf to be discharged from the performance of his public duty, the legislature might well require him to prove, not only that he was not assessed for personal property, but that he ought not to be. But the general qualification of jurors, and the rights of those who may challenge such qualifications are not affected by this provision. The right of challenge for want of proper qualifications is a strictly legal right, and must be determined by the statute prescribing the qualifications. (3 Bl. Comm., 362.) As an application for a discharge under section 33, it would not have been a part of the trial, but addressed by the juror to the discretion of the court and not the subject of review. There was no error in disposing of the challenge and holding that the property qualification when questioned by a challenge must be that required to authorize the original selection of the individual as a juror.

The judgment must be affirmed.

All concur.

Judgment affirmed.  