
    Supreme Court—Appellate Division—Second Department.
    March 8, 1898.
    PEOPLE v. JAMES VAN TASSEL.
    1. Criminal law—Order op proop.
    Where evidence of a combination is insufficient to authorize the reception of declaration of other party in absence of defendant, but the deficiency is afterward supplied, the question becomes one simply of order of proof.
    2. Evidence—Subornation op perjury—Other attempts.
    Evidence of attempts to induce other persons to testify falsely in the same action, which bears directly upon the motive and intent, has relation to the same transactions and purpose, to establish a fact in issue upon the trial, to which it is material and connected in point of time, is admissible on trial of defendant upon indictment charging subornation of perjury.
    3. Witness—Impeachment—Cross-examination.
    Witness may not he examined respecting collateral questions for the purpose of forming bases for the impeachment of such statements by the testimony of other witnesses.
    
      4. Subornation of perjury—Question for jury.
    Testimony, on part of people, by person who was procured to testify falsely, must, if corroborated, be submitted to jury.
    Appeal from judgment convicting defendant of subornation of perjury.
    William H. Wood, for appellant.
    George Wood, District Attorney, for the People.
   Hatch, J.

The indictment charged the defendant and one Jacob Eieck with the crime of subornation of perjury, in that they procured George Eoehle to testify falsely in a certain action pending in the supreme court. The defendant Van Tassel demanded to be tried separately, and was so tried. The indictment charged the combination between the parties, and upon the trial proof was given tending to sustain its allegations. The evidence is abundantly sufficient to warrant the verdict which was rendered, and it only remains for us to determine whether any errors were committed upon the trial which were prejudicial to the defendant.

The people offered evidence, under the objection and exception of the defendants, tending to show the several acts of the defendants, and the acts and declarations of one in the absence jf the other. It is conceded that such evidence is not proper, ml ess there.be evidence sufficient to justify the conclusion that ;he persons charged acted from a common purpose and design ;o do the act constituting the offense. When the witness Eoehel vas called, it is quite doubtful whether evidence of the combinaion between the two defendants had been given which was egally sufficient to establish the combination, and authorize the ■eception of the evidence of the declarations of Eieck in the ibsence of Van Tassel. We may assume that the evidence was lot so sufficient; but it was subsequently supplied by other vidence, and the testimony of the defendant, and the letter ratten under his direction to Eieck, was sufficient for that puriose. The error, if error it was, was therefore cured, and the [uestion became one simply of order of proof, and the defendant oes not appear to have been prejudiced thereby. The combination having been established, Eoehle’s evidence, as well as that which followed upon this subject, became admissible. People v. Bassford, 3 N. Y. Cr. R. 219; People v. McKane, 143 N. Y. 455, 38 N. E. 950.

The evidence which was received of other attempts made to induce other persons to testify falsely upon the trial became competent, in view of all the circumstances. Motive and intent were elements in the commission of the offense, and the evidence received bore directly upon these subjects. The testimony had relation to the same transaction, i. e. to give testimony upon the trial. It had relation to the same purpose, i. e. to establish that two persons were seen to pull the defendant out of the trench into which he claimed to have fallen, which fact furnished one of the issues upon the trial, and the testimony was material thereto. It was connected in point of time, as the efforts of the parties were practically continuous from the formation of the combination up to the time when the trial was had and Eoehle was sworn. These facts answer the requirements which the law imposes, and made the testimony admissible. People v. Peckens, 153 N. Y. 576, 47 N. E. 883 ; People v. Zucker, 20 App. Div. 363, 46 N. Y. Supp. 766, affirmed in the court of appeals.

PTo error was committed in excluding the testimony of Mrs, Baker, respecting the declarations claimed to have been .made tc her by the witness Hire. The evidence which this offer sought to contradict was drawn out upon cross-examination, and re lated to a matter collateral to the subject under investigation. It is a familiar rule of evidence that a witness may not be ex amined respecting collateral questions for the purpose of forming a basis for the impeachment of such statements by the testimony of other witnesses.

This view also disposes of the refusal to receive the defend ant’s testimony as to conversation with Hire upon a mattei quite similar; and we may add, in this connection, that the de fendant testified fully respecting his relations with Hire, anc covered every material element in the case, so far, as Hire wai connected with it. The testimony of Eoehle was corroborated by direct evidence and by circumstances. It therefore became the duty of the court to submit it to the jury. People v. Evans 40 N. Y. 1.

These are all the questions which are urged upon our attention, and, as we find no error in them, the judgment of conviction should be affirmed.

All concur.  