
    Supreme Court—General Term—First Department.
    June, 1890.
    PEOPLE v. FLACK.
    Conspiracy—Acts Hala in Se—Intent—Province of Jury—Presence of Reporter in Jury-Room.
    The rule that an agreement to do an act, innocent in itself, does not become criminal unless the agreement to do the act is with knowledge that it is prohibited, has no application to a confederation to do acts which never in themselves can be innocent, and therefore the very confederation to do them makes the confederation corrupt.
    The only question in a case of this description to bo left to the jury is whether there was a confederation to effect the result by unlawful means.
    Whether an act established by the evidence is lawful or unlawful is a question of law to be decided by the court. .
    Where acts are mala in se, the question of the intent with which they are done has no bearing upon the guilt or innocence of those charged with them, because the commission of such acts shows criminal intent.
    In a trial for a conspiracy to. procure a fraudulent divorce, where such divorce is procured upon papers, each one of which is confessedly fraudulent, it is not error for the judge to charge the jury that the divorce is fraudulent.
    A judge of a court is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court, and render absolutely void any action had thereupon. Such a case is not an error of judgment, but is a perversion of judgment, and even if the evidence should establish such acts of a judge, they would not be a protection to any one following out his instructions in regard thereto.
    A verdict of a jury in a criminal case will not be set aside because there was concealed in the jury-room during the deliberations of the jury a reporter of a daily paper, where it appears that their judgment was in no manner affected by the intrusion of this man, without their knowledge, into the jury-room.
    Especially is this so where, after the discovery of the intruder in the jury-room, the defendants, with full knowledge of the fact, permitted the trial to go on and allowed the jury, who had come into court for instructions, to be sent back without objection, and asked the court to give instructions to the jury on their behalf.
    Appeal by defendants, James A. Flack and William L. Flack, from a judgment entered upon a conviction of the crime of conspiracy rendered against them upon the verdict of a jury in the Court of Oyer and Terminer of Hew York City and County, 31st March, 1890, Hon. GIeo. C. Babbett, presiding.
    The specific offense charged against appellants was that they conspired to enforce, institute and maintain an action to procure a judgment of divorce, and to prevent and obstruct the, due administration of the laws and of public justice.
    There were sixteen counts in the indictment, which may be arranged in two classes.
    The first class comprises the counts which charge the defendants with falsely instituting and maintaining an action for divorce without the knowledge or consent of Mary E. Flack.
    The second class comprises the counts of the indictment, which charge the defendants with deception and imposition ■upon the court in procuring a judgment of divorce by illegal and fraudulent practices.
    The indictment itself is very voluminous, and cannot be Fere given.
    The substance of the facts set forth of two different counts, the first and fifth, will show the nature of the crime ■charged
    The allegations of the first count of the indictment are in substance:
    That appellants, with other defendants, did unlawfully, fraudulently and corruptly conspire, combine, confederate and agree together between and amongst themselves and with divers other persons, etc., to cause an action to be brought in the Court of Common Pleas for the City and County of New York in the name of one Mary E. Flack, the wife of defendant James A. Flack, against said James A. Flack, for judgment divorcing the said Mary E. Flack and James A. Flack, and dissolving the marriage between them by reason of the adultery of said James A. Flack, and te cause a judgment to be given and rendered by the said Court of Common Pleas divorcing the said Mary E. Flack and James A. Flack, and dissolving the said marriage, by reason of said James A. Flack’s adultery, without the knowledge or consent of the said Mary E. Flack, to the manifest perversion and obstruction of justice and the due administration of the laws ; that in pursuance of this confederacy, they did cause the action referred to to be brought in the said court, and afterwards did unlawfully, fraudulently and corruptly cause a judgment to be given and rendered by the said Court of Common Pleas, divorcing the said Mary E. Flack and James A. Flack, and dissolving the marriage between them by reason of the adultery of said James A. Flack, without the knowledge or consent of the said Mary E. Flack against the form of the statutes in such case made and provided, etc.
    The substance of the fifth count is as follows :
    That defendants (naming them) did unlawfully, fraudulently and corruptly conspire, combine, confederate and agree together between and amongst themselves and with divers other persons to the Grand Jury aforesaid unknown to deceive and impose upon the Court of Common Pleas for the City and County of New York, and to procure from the said court a judgment divorcing the said James A. Flack and Mary E. Flack, his wife, and dissolving the marriage between them, by reason of the adultery of the said James A. Flack, by means of a false and fraudulent action in the said court brought in the name of the said Mary E. Flack against the said James A. Flack to the manifest perversion and obstruction of justice and the due administration of the laws. That defendants, in pursuance and furtherance of said conspiracy, did unlawfully, fraudulently and deceitfully produce and procure the said Mary E. Flack to acknowledge before a notary public the signature then appearing upon a •certain paper writing, purporting to be a complaint in an •action for a judgment divorcing her and the said James A. Flack, and dissolving the marriage between them, by reason '•of the said James A. Flack’s adultery, as her voluntary act and deed, and then and there falsely and fraudulently pretending and representing to her, the said Mary E. Flack, that the said paper writing was an instrument .appertaining to a mutual separation betweeen herself and the said James A. Flack, and that it was necessary that she, the said Mary E. Flack, should acknowledge the signature thereto before a notary public, in order that such mutual separation might be brought about and consummated. That defendants did •cause said paper to be delivered, together with a certain paper purporting to be the summons in said action to the defendant James A. Flack, and did induce and procure the person who delivered said paper to James A. Flack to go before a commissioner of deeds and make affidavit of the service of the summons and complaint upon James A. Flack in said action; that defendant Monel], did thereafter go before a notary public and sign and verify an affidavit whereby he falsely, fraudulently and corruptly deposed and said that he was attorney for Mary E. Flack in the said ■action ; that the same had been brought to obtain an absolute divorce from the said James A. Flack on account of his adultery, and that the summons in the said action, with a copy of the complaint therein was duly served on said James A. Flack more than twenty days prior to the time of the making of said affidavit, and that said James A. Flack had not put in any demurrer or answer to said complaint, and had not appeared in said action ; that defendants did after-wards present and cause and procure to be presented the papers hereinbefore mentioned, and upon the presentation •of said papers to the said court, defendants did fraudulently and corruptly obtain and procure and cause to be obtained and procured an order of the said Court of Common Pleas, wherein and whereby it was referred to defendant J oseph Meeks, being a eounsellor-at-law, to take proof of all the material facts charged in the said supposed complaint, and report jhe same with his opinion thereon to the said court with all convenient speed ; and that afterwards defendant Meeks did duly take the referee’s oath in such action, that defendants did falsely and fraudulently thereafter pretend and represent to said Mary E. Flack that a certain paper writing which they then and there produced to her was a paper relating to a mutual separation between herself and said James A. Flack, and intended and designed to effect such mutual separation and secure unto her certain rights and provisions for her support and maintenance; and by means of the said false pretences did then and there fraudulently induce the said Mary E. Flack to acknowledge before •said Meeks, as referee, she, the said Mary E. Flack, being ignorant of the obtaining and procuring of the said order appointing Joseph Meeks as referee, the signature then and there appearing on the said paper as her signature; whereas in truth and in fact the said paper was not a paper relating to a mutual separation between herself and said James A. Flack, and was not intended or designed to effect such mutual separation nor to secure to her any rights or provisions for her support or maintenance, but purported to be an affidavit of her, the said Mary E. Flack, before said Meeks as referee in said action, and to have been sworn to and verified by said Mary E. Flack before such referee on the date therein mentioned, whereby it was made to appear that at a hearing of the questions referred to said Joseph Meeks as such referee by said order, the said Mary E. Flack being called as a witness in her own behalf, and being duly sworn by Meeks as such referee, did testify in substance and to the effect following: (specifying the necessary jurisdictional facts required to be testified to by plaintiff in an action for divorce) whereas in truth and in fact the said Mary E. Flack had not been called as a witness in her own behalf oh the said hearing, had not been sworn by Meeks as such referee, nor testified before him in any manner nor to any effect: that afterwards, defendants did falsely, fraudulently and corruptly pretend and represent to one Margaret Smith that said James A. Flack had made all necessary arrangements-for procuring of a legal and valid divorce from said Mary E. Flack, and that if she, the said Margaret Smith would sign a certain paper which they, the defendants, then and there-produced and exhibited to her, said James A. Flack would be greatly facilitated in the procurement of such divorce whereas in truth and in fact, the said James A. Flack had not made any arrangement for procuring a legal and valid divorce from the said Mary E. Flack, and he would not in. any manner be benefited if she, the said Margaret Smith would sign such paper, and by means of the said false pretences did then and there corruptly and fraudulently induce the said Margaret Smith to sign the said paper, which said paper purported to be a deposition of her, the said Margaret. Smith taken before Meeks as referee in. said action, and to-have been sworn to and verified by her before said Meeks as-referee, and whereby it was made to appear that at a hearing-of the questions referred to said Meeks as referee, said Margaret Smith had been called as a witness on behalf of said Mary E. Flack, and upon being duly sworn, by the said Meeks as referee testified in substance and effect to the following, that is to say : (setting forth various acts tending to-prove adultery between James A.-Flack, and one Susan T. Reynolds).
    That thereafter defendants did unlawfully, etc., cause a witness named Kate Cannon to make a similar affidavit to-the one already made by Margaret Smith, under the same circumstances, and tending to prove acts of adultery of said James A. Flack with the same woman ; that afterwards defendant Meeks did make, prepare and sign a certain paper purporting to be his report in said action reciting the taking of the referee’s oath, and the proofs in the action, the finding of the charges true and sufficiently proven, and-that defendant had been guilty of adultery, and of the adulterous intercourse alleged in the complaint, and that plaintiff was entitled to the relief demanded in the action; that after-wards defendants did present and cause to be presented to the Court of Common Pleas the said referee’s report, together with a certain paper purporting to be a summons in said action, and the above mentioned complaint, but which said paper had been, after Mary E. Flack was so induced to acknowledge the signature thereon on appearing, altered, so that the name of Benjamin Wright had been substituted then and there as attorney of her, the said Mary E. Flack, in the place of the name of Ambrose Monell, which had appeared therein as her attorney prior to such alteration ; the said affidavit of service and the summons and complaint already mentioned, with a certain paper writing purporting to be the affidavit of one Benjamin Wright, and to have been sworn to and verified by him, and in which he deposed and said that he was attorney for her, Mary E. Flack, in said action; that the same had been brought to procure an absolute divorce from said James A. Flack, on account of his adultery, that the summons in said action and a copy of the complaint therein had been duly, personally served on the said James A. Flack, more than twenty days prior to the date of the affidavit, that said James A. Flack had not put in any demurrer or answer to the said complaint, and had not appeared in said action ; also reciting the certain paper purporting to be the order of the Court of Common Pleas appointing said Meeks as referee, the affidavit of said Meeks, also the paper purporting to be the deposition of Mary E. Flack, also the depositions of Margaret Smith and Kate Cannon, and upon said papers and documents last mentioned did then and there corruptly, falsely and fraudulently obtain and procure from the said Court of Common Pleas a certain judgment and decree, and cause such judgment and decree to be made and entered in and by the said court, wherein and whereby it was ordered that the said report of the said Joseph Meeks as such referee be in all things confirmed, and whereby it was further ordered, adjudged and decreed that the marriage between said Mary E. Flack and James A. Flack should be dissolved, etc., against the form .of the statute in such cases made and provided, etc.
    The substance of these counts of the indictment given ■above sufficiently states the facts alleged to constitute the conspiracy between the defendants.
    Defendant Monell died before the trial of the action, and defendant Sarah A. Olierry had not been arrested, and was therefore not tried with appellants.
    Upon the trial of defendants, the appellants, together with Joseph Meeks, were duly convicted and were sentenced as follows : James A- Flack to two months’ imprisonment
    in the City Prison, and to pay a line of $200; Joseph Meeks for the term of one month, in the City Prison, and to pay a'fine of $500 ; William L. Flack, to be imprisoned in the Penitentiary of the City of blew York for four months, and pay a fine of $500, the defendants to stand committed until said fines be paid, not to exceed one day for each dollar, etc.
    The defendant Joseph Meeks ‘ appealed from the judgment, but afterwards withdrew his appeal, served his sentence of one month’s imprisonment in the City Prison, and paid his fine.
    In addition to the facts set forth in the opinion of the General Term, other important matters appear in the report of other proceedings on the same case which appear in Matter of Choate, ante, p. 1, and People v. Flack (motion for a new trial) ante, p. 31.
    
      Horace Russell, for defendants, appellants.
    I. The court erred in charging the jury as follows :
    “I now hold in my hands the document which brought you here to-night, and which has brought me here, the judgment roll in the action. I feel bound to say to you, gentlemen, that this judgment record is a record of a fraudulent divorce. Of that there can be no doubt whatever ; it would be a misapplication of language to call it an irregular proceeding; it is unquestionably fraudulent.”
    
      By this charge the judge usurped the privileges and functions of" the jury and dictated to them as a matter of law, or as a matter of mixed law and fact, what should have been left to them to find as a matter of fact, or as a matter ■of mixed law and fact, under proper instructions as to the law from the court. McKenna v. People, 81 N. Y. 360 ; People v. Upton, 38 Hun, 108 ; 4 N. Y. Crim. Rep. 455 ; 1 Graham & Waterman on New Trials, 311 ; N. Y. Life Ins. Co. v. Walden, 12 Johns. 513 ; People v. Marks, 4 Park. 153 ; Utica Ins. Co. v. Badger, 3 Wend. 102 ; Davies v. Pierce, 2 Term Rep. 253 ; Awlwyn v. Ulmer, 12 Mass. 22 ; Tufts v. Seabury, 11 Pick. 211 ; Morton v. Fairbains, 11 Id. 258 ; Fisher v. Duncan, 1 Hen. & Munf. (Va.) 563 ; Chatham Bank v. Betts, 9 Bosw. 557 ; People v. Irving, 95 N. Y. 546 ; 2 N. Y. Crim. Rep. 171 ; People v. Conroy, 97 N. Y. 80 ; 2 N. Y. Crim. Rep. 247 ; Wakeman v. Dalley, 52 N. Y. 27 ; Francisco v. People, 18 How. 475 ; People v. Baker, 96 N. Y. 340 ; 2 N. Y. Crim. Rep. 21.
    One of the questions on the trial was whether the divorce was fraudulent. The determination of the question involved ■not only the acts of the defendants, but the intent which was to be inferred by the jury from these acts, that is, not only the physical but the inferential facts. It was not ■enough to secure a conviction that certain unlawful acts were done, but those acts must have been done in pursuance of a conspiracy animated by a corrupt purpose to procure a fraudulent divorce. See People v. Powell, 63 N. Y. 88.
    The first count of the indictment charged that the defendants conspired to cause an action to be brought in the Court of Common Pleas, in the name of Mary E. Flack against James A. Flack, and to cause a judgment of divorce to be given without the knowledge or consent of Mary E. Flack, and in furtherance thereof, on April 19, 1889, •caused an action to be brought, etc., without the knowledge of Mary E. Flack, and on July 12 caused a judgment to be given without the knowledge of Mary E. Flack.
    This count could not be sustained without proof that Mary E. Flack had been imposed upon, either in the inception of the suit or in some of the steps thereof. It was therefore the very important issuable fact which should have been left exclusively to the jury.
    The second count charges conspiracy to bring an actions and to procure a judgment without the knowledge or consent of Mary E. Flack. The same observation is applicable as-that made to the first count.
    The third count charges conspiracy to procure and obtain a judgment without "the knowledge or consent of Mary E. Flack. The same observation is applicable to this.
    The fourth count charges that the defendants conspired by corrupt, fraudulent, deceitful and illegal means to procure a judgment without the knowledge or consent of Mary E. Flack. A conviction upon this count could not be sustained without evidence showing fraud in the means used to procure the judgment, and this was a conclusion or inference of fact to be drawn from the circumstances or overt acts set forth in this count, and was exclusively for the jury.
    The fifth count charges that the defendants conspired to deceive and impose upon the Court of Common Pleas, and to procure from said court a judgment by means of a false and fraudulent action. The court charged as a matter of law that the Court of Common Pleas was imposed upon by certain overt acts, and thereby in effect charged that the defendants were guilty of the crime alleged, and left no question to the jury.
    The sixth count charges that the defendants conspired to obtain or procure a judgment without any proper or legal action to obtain or procure such judghient, being first duly instituted by the said Mary E. Flack, or by her authority orín her behalf. The count could not have been sustained without proof that Mary E. Flack had been defrauded or imposed upon, and the question of fraud was an issuable fact.
    The seventh count charges that the defendants conspired, to obtain and procure a judgment of the Court of Common Pleas, without the legal formalities and procedure, in disregard and contempt of and in violation of the rules and practice of the said Court of Common Pleás. The overt acts alleged were that the defendants fraudulently procured the signature of Mary E. Elack to the complaint, and fraudulently procured the service thereof, and fraudulently procured an affidavit of regularity, and fraudulently obtained an order of reference, and fraudulently obtained a deposition from Mary E. Flack, and fraudulently obtained the depositions of Margaret Smith and Kate Cannon, and that in furtherance thereof, a report was fraudulently made by Meeks, and that said report was fraudulently presented to the Court of Common Pleas, etc., and that upon said papers and documents, a judgment was corruptly, falsely and fraudulently obtained. The fraudulent character of the proceedings is the entire basis for this count in the indictment, and when that question was taken away from the jury, there was no material or important inference of fact left for them to decide.
    The same observation is applicable to the eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth counts, the only change in them being that conspiracy with the connivance of Judge Bookstaveb is also charged.
    The fifteenth count charges a conspiracy to commit a crime, namely, to institute and prosecute in the name of Mary E. Flack, an action in the Court of Common Pleas, for' a judgment of divorce without her knowledge ■ and authority. This count also can only be sustained upon the theory that Mrs. Flack was imposed upon and defrauded.
    The sixteenth count charges conspiracy among the defendants tliat they fraudulently and corruptly conspired falsely to institute and maintain an action in the Court of Common Pleas in the name of Mary E. Flack against James A. Flack. The overt acts charged are the same as in the fourth count mentioned above, and the question of fraud and fraudulent intent on the part of the defendants in performing certain acts there set forth is the important inference to be drawn from the circumstances and no one can fairly say that in this count or in any of the others, the question of fraud could be taken away from the jury and leave them any issues to try.
    The court by charging in wholesale language that the divorce was fraudulent, practically left no question for the jury, whereas it should have left to the jury the general question of fraud in fact, and particularly the question whether the several acts done by the defendants were done-with the criminal intent to procure a fraudulent divorce. People v. Powell, supra.
    
    Whether there has been fraud, in fact, is always a question for the jury. Whether in the doing of certain acts defendants were animated by a corrupt, fraudulent intent is always a question of fact for the jury.
    The jury are to determine the inferential as well as the physical facts.
    Inferences of fact, including those of fraudulent or corrupt intent, are always for the jury. When the court assumed wholesale to draw the inferences of fact, including that of fraudulent intent, it usurped the province of the jury, and a conviction based on such a charge cannot stand. McKenna v. People, supra.
    
    There was evidence in the case tending to show that the divorce action was begun with the knowledge and consent of Mary E. Flack, the plaintiff, and that therefore, there was no conspiracy to falsely institute and maintain an action iu her name ; that the complaint was duly verified by her with a knowledge of its contents, which constituted sufficient' authority from her to proceed with the action ; that a copy of the complaint was duly served on the 10th of April, 1889; that no answer was interposed, that an order of reference was duly and properly made on the 10th of June, 1889 ; that thereafter the referee took the evidence of the plaintiff and of two witnesses who testified to the defendant’s adultery ; that the referee duly reported the evidence with his findings, that thereupon the judge to whom the papers were presented, not because the evidence did not justify a decree of divorce, but out of whim, directed that the name of another attorney be substituted for that of Ambrose Monell, which being done, he signed the decree. All these proceedings were regular up to the substitution of another attorney.
    Even granting, for the purpose of argument, that the manner in which the substitution was made was not only irregular but unlawful, it does not necessarily follow that the divorce was fraudulent. The action was not falsely instituted or maintained. The evidence justified a legal divorce. .'Neither the plaintiff nor the defendant in the action was deceived or defrauded, nor was the court, for it not only had knowledge of, but directed the manner in which the substitution of attorneys was made. The defendants had a right to argue, and did argue upon this evidence that there was no fraud intended to any person or to the State, and that no fraud was done to any person or to the State, and' that therefore there was an absence of that corrupt, fraudulent intent, which is a necessary element in a criminal conspiracy. There can be no crime, and least of all, a crime of conspiracy, without a corrupt and fraudulent intent. People v. Powell, supra. Whether there was such corrupt intent was a question exclusively for the jury, and the court had no right to usurp its functions.
    II. The court also erred in its charge that it was no excuse to Mr. Meeks if he performed the acts he did perform by the consent of Judge Bookstaver. People v. Crounse, 7 N. Y. Crim. Rep. 11.
    
      John R. Fellows, district attorney ; Jno. W. Goff, assistant, for the people, respondents.
   Van Brunt, P. J.

The question presented upon this appeal arises entirely upon exceptions taken to the charge of the judge.

The appellants, together with one Joseph Meeks, were convicted of a conspiracy for the perversion of justice and of the due administration of the law by procuring by unlawful means a decree of divorce. The indictment under which this conviction was had contained many counts, which, however, may be summarized as follows: First, a conspiracy to obtain a divorce without the knowledge and consent of the plaintiff therein ; secondly, a conspiracy to obtain a divorce by unlawful means.

Although a large number of exceptions to the charge of the learned judge who presided at the trial were taken, our attention upon this appeal has been called to the following only:

First. An exception to the statement of the court that this judgment record,” (referring to the decree of divorce) is a record of a fraudulent divorce; that of that there can be no doubt whatever; that it is unquestionably fraudulent.” Second. An exception to the following language of the court, contained in instructions to the jury as to the duties of the referee in the taking of the testimony of the witnesses, in an action for divorce: If the referee had done his duty, would she, (referring to one of the witnesses) have said she first knew him fifteen years ago as Reynolds ? She says now she never did.” Third. That the court erred in its charge that It was no excuse for Meeks if he performed the acts he did perform by the consent of Judge Bookstaveb.”

Our attention is called to the following requests and exceptions in connection with this point:

“ I ask your honor to charge that Judge Bookstaveb was the judge of the regularity of the proceedings and the sufficiency of the papers.”
The court so charged.
Mr. Bird. f‘I ask your honor to charge that if Judge Bookstaveb knew when the papers were brought back to him that the changes had been made in them as testified to by the defendant Meeks, that then this jury cannot find Mr. Meeks guilty.”
The court declined so to charge ; exception taken.
Mr. Bird. “ I ask your honor to charge that it was in the power of Judge Bookstaveb verbally to direct changes of the character made here.”
The Court. “I decline so to charge, and charge the direct reverse.”
Mr, Bwd, I except to that and to the qualification on behalf of each of the defendants. I ask your honor to charge the jury that Judge Bookstaveb, being the judge to whom the papers were presented, was the sole judge of the sufficiency of the proof.”
The Court. “ Tes.”
Mr. Bird. I ask your honor to charge that, if that is so, this record is not a fraudulent one.”
The Court. I decline so to charge.”
Exception taken.
The counsel for Meeks then asked the court to charge that if Mr. Meeks did what he did, what he has sworn to upon the stand "upon the direction of Judge Bookstaveb, without any criminal connection with any other person, but simply obeyed the order of the judge who had obtained jurisdiction over the case, he committed no crime whatever.
The Court. “ I charge the part which refers to his criminal act, but everything in relation to his having done it by the direction of Judge Bookstaveb I decline to charge.” The counsel then requested the court to charge that “Judge Bookstaveb had exclusive power to give directions to Mr. Meeks, he being his referee.”
The Court. “ He had no authority to direct Mr. Meeks or anybody else to change, erase, or make any alterations such as have been made here in that record, and if he did so, he himself was derelict in his duty.”
The counsel excepted to the refusal of the charge as requested and to the qualification as charged.
The counsel asked the court to charge that if the jury believed that J udge Bookstaveb gave Meeks a verbal order to have a change of attorneys made, and that Meeks effected that purpose, as he has described upon the witness stand, without any intent to commit a crime, and that Judge Bookstaveb was not imposed upon, but acted upon his own official judgment and upon the papers presented to him by Meeks, that then they must acquit the defendant Meeks.
The Court. “ I decline to charge that. So far as the-criminal intent is concerned, it is correct. Everything about Judge Bookstaver’s verbal order, etc., I decline to charge.”'
Exception was also taken to the following language in the charge that “ Ignorance on the part of the defendants or any of them of the meaning of this statute cannot be a shield to them if you believe they have committed the acts. If you believe beyond a reasonable doubt that they have-committed the acts which constitute the offense as I have defined it to you, then they are guilty.” And the court thereupon defined a criminal intent to be the doing of an unlawful act, intending to do it, and that ignorance of the law has nothing to do with it.
The court was also asked to charge as follows, which it did :
That mere concert is not conspiracy ; persons who agree to do an act innocent in itself, in good faith, not by the use of criminal means, do not become conspirators, because it turns out afterwards that the act was prohibited by statute.”
The court was also asked to charge the jury, which it did, that the jury must not guess that there was a conspiracy, but that they could only find the same from the legal evidence of the witnesses proving the same beyond reasonable doubt.
The court also charged in the following language : “ If, in stating either conceded facts or the facts proven on one side and controverted on the other, such facts as so stated seem to weigh one way or the other, pray do. not consider me as commenting on such facts or- expressing an opinion upon them.” Also, “ The two questions for you to determine are, first, whether tl#e suit which resulted in this decree was fraudulently and falsely instituted. Then the other question for your consideration is, was this fraudulent decree' obtained by fraudulent means?”
And also, “ Now when I pronounce this a fraudulent decree I do not mean to characterize the conduct of the defendants, which I want to leave exclusively to you.”
Again : “Now the first question in this case, as you see, is whether the suit itself was falsely instituted. The first is of course whether Mrs. Flack is to be credited in her statement that she did not authorize the suit to be brought for-an actual divorce. This is a question exclusively for you, and concerning it, I desire to express no opinion nor to affect your judgment in the least.”
Also : “ It will be for you to say, gentlemen, on the facts, whether these defendants are guilty of having obtained this decree of divorce by fraudulent or unlawful means. On that point it is proper to say whether there was a genuine cause of action is not the question. The question is whether the law has been abused or perverted by practices which are fraudulent.”
The court also charged that if the jury believed the defendant Meeks did all the acts testified to in the case, without conspiring with the other defendants or anybody else, they must acquit him.
And again : “ Now, gentlemen, apply the rule with regard to conspiracy which I have given you, and the general principles of the law which I have stated, and take all the evidence here which is before you, uncontradicted, and that which is in conflict, and look at the entire case in its length and breadth : I leave it, then, for you to say whether there is or is not any reasonable doubt as to the guilt of these defendants. If there is any reasonable doubt as to the guilt of one of them he is entitled to it. If there is such doubt as to all of them they are all entitled to it. If there is no reasonable doubt as to the guilt of any of them you should so declare by a verdict.”

It will be noticed that all these .exceptions really relate but to two subjects, viz.: the characterization by the judge •of the decree of divorce, which had been obtained, as a fraudulent decree, and to the definition given of a criminal intent.

It is urged upon the part of the appellants that by this charge the judge usurped the privileges and functions of the jury and dictated to them as matter of law, or as a matter of mixed law and fact, what should have been left to them to find as a matter of fact, or as a matter of mixed law and fact under proper instructions as to the law from the court. And as an enforcement of this proposition it is also urged that one of the questions on the trial was whether the divorce was fraudulent; and that the determination of the question involved not only the acts of the defendants but the intent which was to be inferred by the jury from these acts, that is not only the physical but the inferential facts ; that it was not enough to secure a conviction that certain unlawful acts were done, but those acts must have been done in pursuance of a conspiracy animated by a corrupt purpose to procure a fraudulent divorce.

We think that upon a consideration of the case it will be seen that the learned counsel for the defendants has mistaken the question upon which the jury was called upon to pass, and that the principal question upon the trial was not whether the divorce which had been procured was fraudulent, but whether there had been a conspiracy upon the part •of each of these defendants with some other person or persons for the purpose of procuring a divorce by unlawful means. It is undoubtedly true that in a criminal case the court has no power to charge the jury that the defendants are guilty ; and for that reason upon the trial of an indictment for homicide it was held to be error for the court to charge that if they believed the evidence of certain witnesses the defendant was guilty of murder.

This was held to be error, because, although the homicide'might be established beyond question, yet it was for the jury to say whether the homicide had been committed with the intent to kill, which was a necessary ingredient of the crime of murder, and as intent is necessarily a mental operation, the existence of which can only be inferred from established words and acts, the jury alone could draw this inference. McKenna v. People, 81 N. Y. 360.

So it was held that it was error in the case of a defendant indicted for burglary, with intent to commit larceny, for the court to charge that the evidence showed that the burglary had been committed ; because although the evidence may have shown that there had been a breaking into the premises, it did not show that a burglary had been committed unless it showed a breaking into with intent to steal, the intent being a part of the definition of burglary. And for the reason already stated, the jury alone could draw the inference of intent. People v. Marks, 4 Park, 157.

There is another class of cases in which the question of intent must necessarily be submitted to the jurv, and that is where two or more persons are indicted for the crime of conspiracy it is not enough to prove them guilty to show that they have made an agreement to do an act innocent in itself, and that the act which was the object of the agreement was prohibited, but it must in addition be shown that the confederation was corrupt, and that the agreement-must have been entered into with an evil purpose, as distinguished from a purpose simply to do an act innocent in itself in ignorance of the prohibition. And it is said : “ Persons who agree to do an act innocent in itself in good faith, without the use of criminal means, are not converted into conspirators because it turns out that the act contemplated was prohibited by statute. The actual criminal intention belongs to the definition of the offense, and must be shown to justify a conviction.

In other words, a confederation to do an act innocent in itself does not become a criminal act unless the agreement to do the act is with knowledge that it is prohibited, because otherwise the confederation cannot be corrupt. People v. Powell, 65 N. Y. 88.

But this rule has no application to a confederation to de .acts which never in themselves can be innocent, and therefore the very confederation to do them makes the confederation corrupt, and the only question in a case of this description to be left to the jury is whether was a confederation to •effect the result by unlawful means, the court necessarily being the judge as to whether the means were lawful or unlawful.

In the case at bar we find that the defendants were indicted for a conspiracy to procure a divorce by unlawful means. The learned judge in his charge to the jury gave the definition of a conspiracy as contained in the Penal Code, as follows:

“ If two or more persons conspire either to falsely institute or maintain an action or to commit an act injurious to the public health, to public morals, or to trade or commerce, •or for the perversion or obstruction of justice, or of the administration of the law, each of them is guilty of a misdemeanor.”

The court then called the attention of the jury to 1 b. j fact that there are two kinds of conspiracy, one a conspiracy to do an unlawful act, unlawful in itself, even if the most righteous means are resorted to, and second a conspiracy to perform a lawful act by unlawful means, and the jury were instructed that a combination for the accomplishment of unlawful acts by lawful means or lawful acts by unlawful means each constituted a conspiracy.

The attention of the jury was then called to the further fact that a conspiracy requires two or more persons to be involved in »it, and that there are many acts which may be performed by one man with impunity, which two or more persons together cannot perform with impunity ; and that it is the essence of the conspiracy doctrine that there should be a combination of two or more; and unless the jury could find a combination between each of these defendants with some other person to procure this default by unlawful means, there must be an acquittal. And in various parts of the charge the attention of the jury is specially called to the fact that if the acts which were testified to were done by any of these individuals without conspiring with the other defendants or anybody else, they were not guilty.

The evidence upon the part of Meeks shows—and this is the foundation of the judge’s charge in reference to this matter-^-that this decree, which the court pronounced to be -a fraudulent decree, was obtained substantially under the following circumstances and upon the following papers: A summons and complaint had been served upon the defendant James A. Flack in a divorce proceeding, and no answer has been put in. An application had been made for an order of reference, which had been granted. Certain proceedings, the irregularities in which it is not necessary to mention, were had before the referee named in the order and who made his report. The referee, Mr. Meeks, presented such report with a proposed decree to the judge of the court in which the action had been brought, and the judge objected to the entering of that decree. Whereupon Meeks, by direction of the judge, as he claims, took all the papers, destroyed the original summons, substituted a new one, antedated, saw Wright put his name to it as plaintiff’s attorney, and prepared an affidavit of regularity which Wright swore to. The previous attorney’s name was erased from the complaint, and this was also signed by Wright. The affidavit of service of the original summons and complaint was attached to the new summons and complaint, a new order of reference was prepared and a proposed decree, and all these papers were presented by Meeks without any service of the summons, within a few days after their creation, to the judge of the court in which the previous action had been commenced, and a decree of divorce procured.

It appears from the record that it was claimed upon the trial that these proceedings were mere irregularities, and it was to meet this argument on the part of the defendants that the learned judge charged the jury that these were' not irregularities, because the court had never acquired jurisdiction, and that, because there was not a single paper in that record but which was false, therefore, as matter of law, the decree was fraudulent.

Upon the uncontradicted evidence given upon this trial the court would have been compelled to charge that this decree was void.

There was no pretence that the summons upon which it had been granted had ever been served. There was no pretence that Wright had ever been authorized to appear as the plaintiffs attorney. There was no pretence but that the affidavit of the service of the summons and complaint was false as attached to the summons and complaint upon which the decree was granted. There was no pretence but that the affidavit of regularity was false. There was no pretence but that the report of the referee was untrue, in that no proceedings were taken before the referee subsequent to the order of reference contained in the judgment roll. And it. is clear that nobody but the court could judge as to whether, under these circumstances, the court had ever acquired jurisdiction under the decree.

But it is urged that because the learned judge characterized the decree as fraudulent, and because fraud is always a mixed question of law and fact, therefore it was error.

If the decree was void, why was it void? Simply because of the fraudulent means used in its procurement; simply because there was not a single paper in the whole roll which constituted the judgment roll and which preceded the decree, but was false and fraudulent in law. And we repeat who was to judge as to whether the law had been cheated and defrauded by the manner in which this decree had been obtained ? Was it for the jury ? There was no dispute as to these facts. Was it not then for the court to say whether the law had been contravened in the procurement of that decree, rendering it fraudulent and void ? If it was void because of fraud we can see no reason why the court should not characterize its nothingness by the proper appellation.

The jury was expressly charged that even these facts did not make any of the defendants guilty of the offense charged in the indictment; because the court said, “ whether the judgment and these proceedings were the result of a conspiracy entered into by these defendants is the question which the jury must solve in favor of the People beyond a reasonable doubt, before any one of them could be convicted, and the jury were expressly instructed that an individual accused of a crime is entitled to have it left to the jury to form their own conclusion upon the evidence whether he has or has not committed the particular crime charged against him. It clearly was a duty imposed upon the court to instruct the jury as to whether the procedure, which was confessed to by the defendant Meeks, was a perversion of the law. The jury are not the judge of both the law and the facts. It was for the court to characterize the acts established as having been done by Meeks, and it was not for the jury to determine whether they were in accordance with the statute or not. And this is all that the court did in declaring that this decree was fraudulent because it was not founded upon a single honest paper, the defendant Meeks having full knowledge thereof.

The question of the intent with which these acts were done had no bearing upon the guilt or innocence of the defendants under the rule laid down in the case of People v. Powell (supra). It is only when the act done is innocent in itself that the intent with which it is done becomes material. We do not think, however, that anyone will have the hardihood to claim that the manufacture of false papers and the procurement of a divorce thereon could under these circumstances be innocent acts; and therefore the charge of the court that the doing of the acts, intending to do them, showed a criminal intent, was clearly correct, such acts being mala in se.

It is to be observed, however, that these exceptions have no relation whatever to the guilt of the defendant James A. Flack. The jury were instructed that he was not connected directly or indirectly with these fraudulent changes which took place after Wright was consulted ; that the case against him depended upon the manner in which this action was brought, charging adultery with Susan T. Reynolds, and ¡upon the acts done with reference to the preparation of the -evidence of the witnesses whose depositions appear attached to the referee’s report. And the jury were instructed that Meeks was not affected by this consideration, but by what happened after he went to Wright; and that the question of the guilt of William L. Flack depended upon the consideration which the jury gave to the evidence as to his participation throughout in the divorce proceedings which were taken. .

The learned judge was careful to distinguish between the parts which the various defendants who were then on trial before him took in the proceedings, which culminated in the indictments under which they were being tried ; that there was no connection between the acts done by Meeks and the defendant James A. Flack; that if James A. Flack was guilty, his crime had been committed prior to the time when the fraudulent acts of Meeks commenced, and that he had no connection whatever with those acts and the connection of the defendant William L. Flack with those subsequent proceedings depended upon the weight which the jury gave to the evidence produced before them.

It seems to be clear, therefore, that in the exceptions to the characterization by the learned judge of this decree as fraudulent, the defendant James A. Flack has no interest, and that only the defendants William L. Flack and Meeks could possibly be affected by the charge of the court in this respect, even if it-were erroneous.

But we think it has been clearly shown that the court had the right to judge as to whether Meeks’ procedure was lawful or unlawful, and as to whether these proceedings were mere irregularities or frauds upon the court, and that there was no question whatever for the jury upon this point. And it should be borne in mind in the consideration of this question that the court charged expressly that although Meeks was guilty of these unlawful acts in the procurement of this decree, if he did it alone he was not guilty of the offense charged, but that it was necessary that the jury should find that he conspired with some other person for the •attainment pf this end by unlawful means, and thus was guilty of a conspiracy for the perversion of justice and of the due administration of the law. Again and again throughout the charge did the court call the attention of the jury to the necessity of finding a combination between the defendants and some other person or persons to do these acts, before a conviction could follow. If it was a fraud upon the court to procure a decree of divorce upon papers, every one of which was stamped with confessed dishonesty, then the learned judge would be derelict in his duty to the people by characterizing "them otherwise than he has done. In law, at least, fraudulent means can never culminate in honest results.

This brings us to the consideration of the claim that the learned judge erred in his commentaries upon the manner in which Meeks performed liis duties as a referee.

We can see no error in the charge of the court in that respect. The court was bound to instruct the jury as to what was the regular method of proceeding.

It is urged that in the charge the court assumed that one -of the witnesses told the truth upon the stand, and did not tell the truth in the deposition taken before Meeks; that this was an inference of fact, and it should not have been charged that the witness told the truth on the stand, and that a •different state of facts would have been elicited by Meeks if he had conducted an examination.

Ho such question is raised by the exception to this portion of the charge, and the attention of the court was not called by anything that was said to this particular language which was used. But we think that the interpretation placed upon the language by the counsel for the appellant is not correct upon reading the paragraph in full.

It was established by uncontradicted evidence that the •depositions as sworn to before Meeks, as referee, did not contain the truth, and it was because of this fact that the court probably used the language to which attention is now called. All that was intended to be presented to the jury was whether the referee upon proper examination would have secured the facts as the witness told them upon the stand, which is evidenced by the next sentence in the charge. If the referee had elicited that fact by an examination of the. witnesses, etc./’ clearly leaving the matter wholly open. If the attention of the court had been called to the use of the word “ truth ” by any properly directed exception, the language-would undoubtedly have been changed, as there was no intention exhibited upon the part of the court to usurp the province of the jury in this respect, as the jury were again, and again instructed that they were to be the judges of the facts and not the court, so far as they depended upon the evidence of the witnesses.

The next error claimed is that the court erred in its charge that it was no excuse for Meeks if he performed the acts which he did perform by the consent of Judge Bookstaver or under his direction.

In support of this proposition our attention is called to the People v. Crounse (51 Hun, 439 ; 7 N. Y. Crim. Rep. 11) where a party was indicted and convicted of maintaining-a public nuisance in constructing an embankment upon private land, thereby causing surface water to flow upon the public highway. The defendant undertook to give evidence showing that the act done by him was done by the direction of the commisioners of highways, and the court held that it was competent evidence, basing their decision upon the fact that although the commissioners of highways might fail in judgment, the act having been done pursuant to their directions could not be punished criminally.

We fail to see the application of this case to the facts, established in the case at ban Judge Bookstaver had no right to direct Meeks to commit acts which under no circumstances could be other than criminal. Judge Bookstaver. had no power to direct the commission of forgery and perjury upon which to found a decree, so as to shield the party following the direction from the consequences of his acts. In the case cited there was a mere error of judgment on the part of the commissioner of highways. He had a right to direct the act to he done, provided it was done without public injury, and therefore the defendant in the case cited, if acting under such authority, did not act unlawfully, and hence his action would not come within the terms of the Penal Code. But Judge Bookstaver, if he did so direct, had no power to direct the commission of acts which would result necessarily in the perpetration of a fraud upon the court. It is to be borne in mind, as the learned judge charged the jury, that the judge is not the court; that he is the mere servant and administrator of the law, and that the judges are the servants of the people to perform their duties in accordance with the law s and that a judge is utterly without jurisdiction to direct the performance of acts which must necessarily result in the perpetration of a fraud upon the court and rendering absolutely void all action had thereon. Such a case is not the case of an error of judgment. It is a case of the perversion of judgment.

The only other exception which appears upon the counsel’s brief is one which is not argued at length, and it is to the effect that the court erred in denying a motion for a new trial based upon the intrusion of a World reporter into the jury-room during their deliberations.

It appearing in the record of this case, from the affidavits of the jurors, that their judgment was in no manner affected by reason of the intrusion of this man, without their knowledge, into the jury room, it is evident that the defendants have sustained no damage, and consequently the verdict cannot be set aside upon that ground.

But it is also clear that whatever rights the defendants may have had by reason of the happening of this incident, they were waived by the subsequent conduct of the defendants and their counsel. After they had full knowledge of the facts they permitted' the trial to go on, and the jury to be sent back without objection, and asked the court to give instructions to the jury on their behalf, the refusal to give some of which forms one of the grounds upon which this-appeal is founded.

Under such circumstances the defendants cannot now be» heard to claim immunity because of this alleged irregularity. They had their opportunity to object to the sending back of this jury. They did not; and they cannot now be allowed to assume the position of speculating upon the verdict of the jury ; if it was in their favor they would be discharged; if' against them it would be set aside.

An examination of the whole case shows that the learned judge presiding at the trial in no manner usurped the functions of the jury. He repeatedly told the jury that the guilt or innocence of the defendants was a question exclusively for them to determine, and in respect to which he did not wish or intend to influence their judgment. Where conceded acts were frauds upon the court, because wholly unlawful, he so characterized them as he was bound to do, and it was for him alone so to do. As has already been said, it was not the province of the jury to determine whether an established act was lawful or unlawful. Such question is one of law exclusively for the court.

There do not appear to be any errors which would justify a reversal of the judgment and it should be affirmed.

Daniels and Brady, JJ., concur.

Judgment affirmed.  