
    COURT OF APPEALS.
    The People, respondent, agt. William A. Hooghkirk, impleaded, appellant.
    
      Criminal law—Trial jurors—Arson — Evidence—Code of Criminal Procedure, sections 238, 239, 399 —Effect of the provisions of section 399 as to evidence of accomplices.
    
    The right of a defendant to challenge the body of the grand jury because irregularly or defectively constituted no longer exists; he can raise no objection except to individual jurors under section 239 of the Code of Criminal Procedure. -
    On a trial for arson in the third degree, two accomplices swore, that defendant was to and did purchase cheap horses to be exchanged for more valuable ones before the fire. Several witnesses testified to selling cheap horses to defendant, and one S. swore to the exchange of horses being made. The court refused to charge that there was no evidence to corroborate'the accomplices:
    
      Held, no error. The rule now embodied in the statute (sec. 599, Code Crim. Proc.), is substantially the rule which, before the statute, courts were in the habit of stating to the jury for their guidance, but neither the doctrine hitherto declared by courts nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice.
    Evidence of the defendant on cross-examination in such cases with reference to his connection with other fires and with insurance on other property burned, is admissible in the discretion of the court as affecting his credibility.
    
      June Term, 1884.
    
      E. J. Meegan and Edwin Countryman, for appellant.
    
      D. Cady Herrick, district attorney, for respondents.
   Andrews, J.

The indictment against the defendant Hooghkirk was found at the court of sessions, Albany county, at the September term, 1883, by a grand jury selected in pursuance of chapter 533, Laws of 1881. Before the jury was sworn or impanneled, the defendant, who, prior to the commencement of the term, had been committed to answer to any indictment that might be found against him thereat, filed in open court a written protest or objection, under oath, against the swearing, organization or recognition by the court of the persons summoned as grand jurors, or of any of them as a grand jury, on the ground that they were not drawn or summoned as required by law. The same facts in support of the objection were presented as in the Petrea case (92 N. Y., 128). The question is the same as was considered and determined in that case, except as it is affected by the consideration that in this case the objection was raised before indictment, and before the grand jury had been organized.

In the Petrea case it was held that upon the facts proved and offered to be proved, the act of 1881 was unconstitutional in so far as it provided for the selection of grand jurors for Albany county, for the reason that it was a local bill for the selection of grand jurors, and as such within the prohibition of article 3, section 18 of the state constitution, which prohibits the passage of a local bill for “selecting, etc., or impanneling grand or petit jurors.” But the court further decided that a defendant might, nevertheléss, be lawfully put upon his trial upon an indictment found by a grand jury selected under the act; that no constitutional right of the defendant was thereby invaded ; that the right of the defendant to raise the objection was a matter of procedure, subject to the control of the legislature, and that the objection was not one which, by the new procedure in criminal cases, could be taken by a defendant after indictment. The only question now open on this appeal, upon this branch of the case, is whether, under .the Code of Criminal Procedure, a defendant held to answer a criminal charge,. may, on the return of the grand jury list, and before indictment, take the objection which, under the decision in the Petrea case, he would be precluded from taking-, after indictment. If the case permits this discrimination, the-objection must prevail, otherwise the case is governed by-our former decision. By section 238, a challenge to the panel or any of the grand jurors is prohibited, but the section authorizes the court in its -discretion to discharge the panel for causes specified, and among others “ that the requisite number of "ballots was not drawn from the grand jury box of the county.” Section 239 authorizes a challenge to be interposed to an-individual grand juror for certain specified causes. Taking the two sections together, it seems to be quite evident that section 238 was intended to confer upon the court a discretionary power to discharge the panel to be exercised upon its own volition, and in view of all the circumstances, while section 239 was intended to secure to an accused person the right to purge the panel of one or more particular grand jurors who might be objectionable, .for bias or other specified cause.

The power conferred by section 238 is in the general interest of public justice; that conferred by section 239 is in the particular and special interest of the person accused. The objection interposed to the panel in this case on behalf of the defendant was in the nature of a challenge to the array, and the right of a defendant to challenge the body of the grand jury because irregularly or defectively constituted, no longer exists, and we find no provision of law permitting a defendant to raise any objection to the grand jury, except an objection to individual jurors under section 239. We think the objection of the defendant to the grand jury was properly overruled. It may not be out of place, however, to express the opinion that the court, except for the fact that the grand jury which found the indictment in this case, although selected and organized after the decision in the Petrea case, was selected before the board of supervisors had an opportunity to prepare a grand jury list in conformity with the general law, might very properly, on its own motion, have discharged the panel.

It is very unseemly that grand juries should continue to be selected under the act of 1880, after that law has been declared unconstitutional, and the omission of the board of supervisors to perform the plain duty of preparing a proper grand jury list ought not to.be longer tolerated.

The other questions arise upon exceptions taken on the .. trial. The principal one is an exception on behalf of the. prisoner to the refusal of the court to charge that there was . no evidence tending to corroborate the testimony of the wit-. nesses Jones and Hugent, who concededly by their own . confession were accomplices of the defendant in the commission of the crime charged in the indictment. The general facts relating to the alleged crime, as testified to by the accomplices, are that on and prior to January 2, 1883, Jones was lessee of a stable in the city of Albany, and had procured an insurance of $500 on horses and property therein, which, at the suggestion of Hooghkirk, he increased to $1,000, with the understanding that Hugent was to fire the barn, for which he was to receive $100, and that the insurance money should be divided between Jones and Hooghkirk. It was a part of the arrangement that Hooghkirk should buy some cheap horses to be put in the stable in place of other more valuable horses to be removed before the fire. The fire occurred Tuesday, January 2, 1883, at about 12.50 a. m. Monday or Tuesday evening before the fire Hooghkirk, as Hugent testifies, brought two cheap horses to a point near the stable, and then exchanged them for two other horses belonging to Hooghkirk, which Hugent and one Strevell, by the direction of Jones, had taken from the stable, and the horses received from Hooghkirk were taken back to the stable and were.burned in the fire. One or two other cheap horses were, as the accomplices testify, also purchased by Hooghkirk shortly before the fire and placed in the stable. It is not claimed that Hooghkirk either set the fire or was present .wheú’it was set. The evidence is that it was set by Hugent, who admitted the fact.

The evidence contained in the record, goes into great detail, ' but.it is. unnecessary for the present purpose to refer more .particularly to the evidence of the accomplices. It is sufficient to state that if their testimony is true, there can be no question of the guilt of the defendant. On the other hand, if their testimony, is excluded from the case, it is not probable 'that., he could have been convicted, although circumstances would remain calculated to excite grave suspicion. Christopher Ferns testified he sold a horse to Hooghkirk in December before the fire for fifteen dollars, and delivered it within a few days, and Hooghkirk testified that it was delivered Hew Years.night. John Ernzart testified to the sale of a horse to Hooghkirk two or three days before Hew Years for fifteen dollars, and to its delivery either Sunday or Monday night before the fire. George .Brown testified to a like sale a few "days before Hew Years for ten dollars, and that the horse was deliverfed .to Hooghkirk. on Sunday or Monday night before the fire. John Feizenbaum testified that the defendant Hooghkirk, about January 1, 1883, in the evening, brought to his place about a mile and a-half from Albany, two bay horses, with collars and blankets, and left them with him a few days and then took them away. John Strevell testified he worked for Jones at the time of the fire; that on Monday evening, the night of the fire, he went to the stable and found Jones and Hooghkirk there; that Jones brought out two bay horses and asked him to go and help Nugent exchange them; that they went with them to Washington avenue (about a block distant from the stable) and met Hooghkirk there in a carriage, with two other horses, which were exchanged for the bay horses, which Hooghkirk took away, and that the witness and Nugent took the two horses received from him’to the stable'; that he asked Jones what he was doing; that Jones said, “ if I (Strevell) would keep still he would give me fifty dollars,” and further, “ I did not want his fifty dollars, or know anything about his business, and I went home.”

Nugent testified that when he saw Strevell coming, Jones was throwing the straw around the barn floor; that he told Jones that Strevell was coming, and “ Jones catched the lamp and blew it out; ” that Jones said to Strevell, “ you keep still, and I will give you fifty dollars and a suit of clothes; ” that Strevell said he didn’t want no fifty dollars, and didn’t want to know nothing of his business.”

It further appeared that the property in the barn was insured for $1,000. The policy was put in evidence, and it was proved that the insurance company paid the loss. Hooghkirk testified that the policy at one time was in his possession, but that it was given to him after the fire to secure a loan, and that Jones, on some pretense, obtained it from him, and that he received no part of the insurance money.

The statute (Code of Crim. Proc., sec. 399) declares that “a conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as leads to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances thereof. Prior to the statute the rule in this state permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice (People agt. Costello, 1 Denio, 83), but it was the uniform custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which, before the statute, courts were in the habit of stating to, the jury for their guidance, although, 'as has been said, it was not inforeed as a rule of law. It is plain that independently of the statutory rule, corroborative evidence to'have any value must be evidence from an independent source of some material fact tending to show not only that the crime had been committed, but that' the defendant was implicated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases, unnecessary and would defeat the policy of the law which permits the use of accomplices as witnesses in aid of, and in the interest of public justice.

"We think there was evidence in this case tending to connect the defendant with the commission of crime charged against him, independently of the testimony of Jones and Nugent. The evidence of Strevell as to what took place at the barn in connection with the subsequent fire, leads to an inference of an incendiary burning; Indeed this is the only reasonable inference from the conduct of Jones in attempting to bribe Strevell to keep silence, interpreted in connection with the mysterious exchange of horses, the fire and the insurance. The connection of Hooghkirk with the felony is not directly shown by testimony independent of the accomplices. But he is shown by Strevell to have been in the immediate vicinity of the stable shortly before the fire, engaged in the exchange of horses under suspicious circumstances. The fact that he purchased cheap horses, which were delivered to him on Sunday or Monday evening, is established by the testimony of independent witnesses, and is indeed admitted by Hooghkirk, and the jury may well have discredited his explanation of these transactions. The testimony of Beigenbanm that Hooghkirk brought the bay horses to his place on the night of the fire, or about that time, confirms Strevell in part of his story, and closely connects Hooghkirk with the transaction of the night of the fire. It cannot, we think, be doubted that the circumstances proved outside of the testimony of the accomplices show such a relation between Jones and the defendant, and such a sequence of events as to justify the inference not only that the crime of arson was committed, but that Hooghkirk was accessory to it. The claim that Strevell was himself an accomplice, was properly left to the jury. The transactions he testifies to may have aroused, and probably did arouse, his suspicions, but it is quite evident that he was not an original party to the scheme for burning the barn, and it was for the jury to determine whether, when the transactions testified to occurred, he had any guilty knowledge of the impending crime. The declaration of Jones to Hugent, in the absence of Hooghkirk, to the effect that the latter was engaged “ in the business of burning barnsj” was coupled with the further declaration that he told Hooghkirk what Jones said.”

The court replied to the motion to strike out this evidence by saying: I will retain it for the present. Tour motion is good unless it is connected in some way.” There was no subsequent motion made by the defendant in respect to this evidence. When the motion was made it appeared that the remark of Jones was communicated by Mugent to the defendant, and the exception to the disposition of the motion at that time was not well taken.

The questions put to Hooghkirk in his cross-examination with reference to his connection with other fires and with insurance on other property burned, were admissible in the discretion of the court as affecting his credibility, within the cases People agt. Casey (72 N. Y., 393); People agt. Woelke (94 id. 137); People agt. Irving (MS.).

There are no other questions requiring notice. We find no error in the record, and the judgment should therefore be affirmed.  