
    The People of the State of New York, Respondent, v. Samuel J. Kennedy, Appellant.
    1. Murder — Evidence — Declarations Made in Presence of Accused Incompetent. Upon a trial for murder the testimony of a police officer as to a conversation, in the presence of the defendant, who was in custody, between the witness and another person, tending to show that the latter, after being warned by the witness to be careful in hi? statements, identified the defendant as the person who was with the deceased the night of the homicide, is hearsay and incompetent, notwithstanding that such person is also a witness on the trial and to some extent corroborates the police officer as to his identifying the defendant, where the defendant, when he undertook to speak and deny that he was the person, was instantty stopped by the police officer and required to keep still.
    2. Admissibility of Declarations Made in Presence of Accused. Declarations or statements made in the presence of accused are not received as evidence in themselves against him, but for the purpose of ascertaining the reply he makes to them. They are only competent when he hears and fully comprehends the effect of the words spoken and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the-truth of the statement, by his remaining silent.
    3. Appeal — Granting New Trial in Capital Case for Error not Excepted to. The power conferred upon the Court of Appeals hy sec. tion 538 of the Code of Criminal Procedure to order a new trial when the judgment is of death, if satisfied that the verdict was against the weight bf evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below, may be properly exercised when it is apparent that the defendant has suffered: gross injustice by the admission of incompetent evidence upon the main, and vital issue, even though the defendant’s counsel failed to object to its reception; but the provision of the Code was not intended to relieve counsel of the duty of objecting, and, in case their objection is overruled, of taking an exception, to the admission of incompetent evidence.
    4. When New Trial Will not be Granted. The power conferred by that section upon the Court, of Appeals is a power to be exercised or witheld in its discretion, and where that court is satisfied that the accused has had a fair trial and that he is guilty of the crime charged, a hew trial will not be granted.
    (Argued October 4, 1900;
    decided November 30, 1900.)
    Appeal from a judgment of the Supreme Court, rendered' at a Trial Term for the county of New York March 31,1899, upon a verdict convicting the defendant of the crime of murder in the first degree, and from an order denying a motion, for a new trial.
    The facts, so far as material, are stated in the opinion.
    
      W. W. Gcmtwell and JR. JMJ. JMJoore for appellant.
    The' admissions claimed to have been made by the defendant were-improperly received in evidence. (People v. McMahon, 15 N. Y. 384; Wheater Case, 2 Moody C. C. 45; People v. McGloin, 91 N. Y. 244.) .It was error to permit Captain-Price to testify to the detailed conversation that he had with, Davis and McCurry in the police station relative to the identification of the defendant. It is true that defendant was present at all of the conversation, but he in nowise could be said to have adopted it or be a party to it, either by acquiescence, or silence. (Kelly v. People, 55 N. Y. 511.)
    
      Charles K. Le JBarbier for respondent
   Haight, J.

On the morning of the 16th day of August, 1898, the dead body of Emeline C. Reynolds was found lying upon the floor in room 84 of the Grand Hotel on Broadway in the city of Hew York. The body was' fully dressed, with the exception of the hat which had been removed and was lying in the room. By the side of the body, upon the floor, was found a bludgeon, consisting of a lead pipe about seventeen inches in length, through which an iron rod had been inserted and wound at one end with tape. A post-mortem examination of the body disclosed two wounds upon the top of the head, each about two and one-half inches long, one about an inch behind the other, cutting through the scalp. The lobe of the right ear was found to be discolored, and there was a fracture of the cervical vertebra or neck. Ho other marks were found upon the body. It appeared to be well nourished, and in other respects in a healthy condition. The physician who conducted the autopsy gave it as his opinion that the wounds were produced by blows upon the head and that death was due to oedema, congestion of the brain, asphyxia resulting from pressure on the spinal cord and fracture of the cervical vertebra; and that death could have been produced from the blows of the bludgeon which was found by her side.

The deceased was a young woman, unmarried, and had formerly lived at Mt. Vernon, where her parents, brothers and sisters still reside. For the last two years she had been living at the corner of Fifty-eighth street and Hinth avenue, in a flat on the first floor, with a Hew York broker, under the name of Reynolds, as man and wife. On Monday, the day. preceding the finding of her body, she left her home in the morning, taking with her a small bag or reticule, and about half-past twelve o’clock she entered the Grand Hotel, went to the desk and registered in the name of “ E. Maxwell and wife, Brooklyn,” and was assigned by the clerk to room 84 on the fourth floor. She was conducted to this room by a bellboy and left there. At about two o’clock she entered the dining room and was conducted to a table at which she was served with a lunch. After finishing her lunch she signed the bill therefor with the name of “E. Maxwell, Room 84.” A few minutes afterwards she left the hotel by the ladies’ entrance on 31st street and did not return until about six o’clock in the afternoon, at which time she was accompanied by a man-They entered the hotel at the entrance from Thirty-first street, passed through the dining room and took the elevator to the room to which she had been assigned. They remained together in the room until about a quarter of seven, when they descended by the elevator to the office floor and passed out through the dining room into Thirty-first street. They again returned to the hotel together about ten minutes before twelve o’clock, jjassing through the dining room to* the elevator and thence to their room. After they returned to their room, a lady occupying room Mo. 52, which is directly undei room 84, heard two persons walking about the room. After some time her attention, was attracted by a heavy fall upon the floor in the room above, and this was followed, shortly after, by another fall. After that she 'heard the walking of one person about the room for some time, but finally fell asleep and observed nothing further until morning. A few minutes after two o’clock the man, who had accompanied the deceased, passed down the stairs of the hotel to the office and thence out through the corridor into Broadway. The body of the deceased was first found by the chambermaid, who entered the room at about half-past nine in the morning.

The evidence establishes beyond a reasonable doubt, and we understand the fact to be conceded by the defendant, that Miss Reynolds had been killed by some person, under circumstances which would justify a jury in finding that the act was committed with deliberation and premeditation. We are thus brought to a consideration of the question as to whether the crime was committed by the defendant. He was a dentist, having an office at Mo. 60 West Twenty-second street, in the city of Mew York, in company with his father, who is also a dentist. He was a married man, about thirty-two years of age, and resided at Mew Dorp, Staten Island, with"his parents. At the time of the homicide his wife .was absent from home on a visit.

Upon disrobing the body of the deceased, in order to make an autopsy, there was found underneath the corset the sum of $8.90 in .money and the following check :

“No. 1226. New York, August 15, 1898.
The Garfield National Bank, Twenty-third street and Sixth Avenue, pay to the order of Emma Reynolds thirteen thousand dollars ($13,000). DUDLEY GIDEON.”

The check bears a two-cent postage stamp, canceled, and is indorsed upon the back “ S. J. Kennedy.” There was also found in the room several scraps of paper which had been torn up. Some of the pieces were found in a waste basket in the corner of the room, and some of the scraps were found by the easterly window. These scraps, when put together, formed a complete paper, on which there appears in lithograph in the upper left-hand corner a capital “ R; ” on the left hand is a line for date with the figures “ 189-,” and underneath are the words Phillips Milk of Magnesia, 12 oz.” On the reverse side of this paper were written the words “ E. Maxwell and wife, Grand Hotel.”

After finding the check with the defendant’s name indorsed upon the back of it, the detectives detailed to investigate the case called upon the defendant at his office, showed him the check and asked him if the signature was his. He stated that it was not; that-he had never seen it before, and that he was not at the Grand Hotel the night before in company with the decedent. He was, however, subsequently placed under arrest and taken to the West Thirtieth street police station,- and upon a search of his office there was found a blank check book with a number of checks signed by him, several letters and a pad of paper on which was printed “ Phillips Milk of Magnesia, 12 oz.,” conforming in every respect to the scraps found in the room of the deceased, to which we have already referred.

Upon a search of the defendant’s residence in New Dorp, there was found in the cellar a piece of lead pipe corresponding in size to that of which the bludgeon had been constructed, and also a piece of iron of the same size as that which had been inserted in the pipe constituting the bludgeon.

The head waiter, his assistant, the bellboy, elevator boy and the front clerk of the Grand Hotel, who saw the man with the deceased, were sworn as witnesses upon the trial and identified the defendant as the man who occupied the room with her on the night of the homicide. As they described him, he wore a straw hat. It appears that previously he had worn a brown derby hat, but testimony was introduced showing that on the afternoon of that day he had purchased a straw hat and a golf cap, the cap being subsequently found in his office and identified by the salesman. Expert witnesses were produced, who, upon comparing the check for $13,000 found upon tile body of the deceased, with papers proved in the case to be written by the defendant, gave it as their opinion that the check was filled out and signed by the defendant, and that the indorsement on the back was his genuine signature. They also gave it as their opinion that the writing, upon the scraps of paper found in the room, of the deceased, of the words “E. Mav well and wife, Grand Hotel,” was also that of the defendant.

On the morning preceding the homicide, the defendant put on his wife’s undershirt or wrapper. After closing his office in the afternoon, he went to a store and purchased a new suit of underwear consisting of a shirt and drawers, and then returned to his office and put them on. Upon his arrest there was found upon the drawers a dark streak or mark extending from the waistband down toward the knee, which it is claimed was made from the lead pipe or bludgeon hanging inside of his trousers and against his drawers. After he was arrested he was asked by the police as to his whereabouts the evening before, and it is claimed that he made contradictory statements with reference thereto, and materially varied the same on subsequent occasions when questioned upon the subject. Other circumstances of lesser importance were disclosed by the evidonee, but we have specifically called attention to all that is necessary to be considered upon this review.

The evidence is of such a character as to require a submission of the case to the jury and thus cast upon that body the responsibility of determining the question of the guilt of the accused. We, however, have called attention to the evidence for the purpose of showing that the testimony given as to the identity of the defendant as the person who occupied the room in the hotel with the deceased on the night of her death related to the chief vital question at issue and was of the utmost importance. Bearing this fact in mind, we proceed to a consideration of the testimony of Captain Price of the police department. After the defendant had been arrested and taken to the police station, the captain testified that he brought in a number of other people and placed them in the room with the defendant; that he then sent for the colored bellboy at the hotel, by the name of Davis, who had served a bottle of wine to the person in room 84. On his arrival he was taken into the room where these persons were congregated and then the captain said to him, Will you look around this room carefully and see if you can see anybody that resembles that man ? I says, Mr. Davis, be awful careful in your judgment. I says, this is a serious matter. It may involve the life of a man, and if you ever exercised care in your life, do it now. He says, there is no use of my looking around this room. I had told him to speak to each individual in the room. He had told me of a conversation that he had had with a man in the hotel about the wine and a corkscrew. I said, speak to every individual in the room, make no mistake as to voice, if there there is any doubt at all, give it to the man you have in mind. He says, Captain, there is no occasion for me to speak to anybody, there is no occasion for me to go around the ‘room. I see the man that I served with a bottle of wine. Where is he ? There he is, sitting right over there, walking a few feet and pointing to Kennedy. I stopped him immediately and said, you have made a mistake. Aint it that man, pointing to another man the other side of the room ? Get up and. look' at him. Aint that the man? Ho, he said, there is the man that I served with the bottle of wine. Kennedy spoke up and said, I never seen you in my life before. I said, stop, Kennedy, you will understand this a little later on.” The captain then proceeded to state that he sent for other persons in the hotel and had them brought over to the police station to see if they could identify the-defendant, and among others, stated that Stephen Burns, a waiter at the hotel, next saw the defendant. He looked the people over as they walked around the room and lie said that “ this man, Kennedy, was the man that he had seen in the hotel.” Burns was not sworn as a witness upon the trial, but Davis was, and upon the trial he identified the defendant as the person he had served with wine in room 84 on the night of the homicide and that he went to the captain’s office the next day to identify the man. He stated that he locked around the room and noticed that Mr. Kennedy was .the gentleman that he served with wine; that he caught his features at once. He also stated that the captain of the dining room was in the captain’s room at the same time and that he picked out the defendant before the witness did, but that he was positive that the defendant was the man that he saw in room 84.

We think the captain’s testimony, to which we have referred, was hearsay, incompetent and prejudicial to the defendant. He gives us, in considerable detail, the conversation that took place between himself and the colored bellboy in which he took great pains to instruct the boy with reference to his duty, the care that he should take, and his replies thereto, all tending to show that the boy was certain as to the identity of the defendant. It is true that this conversation took place in the room in which the defendant sat, in company with a number of other persons, but when the defendant undertook to speak and deny that he was the person, he was instantly stopped by the captain and required to keep still.

There are circumstances under which the declarations of persons made in the presence of the accused are competent, but they are regarded as dangerous and should always be received with caution and should , not be admitted unless the evidence clearly brings them within the rule. Declarations or statements made in the presence of a party are not received as evidence in themselves, but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the person affected hears and fully comprehends the effect of the ivords spoken and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement, by his remaining silent. (Wharton Law of Evidence, sections 1136, 1137; Greenleaf on Evidence, sections 197-199; People v. Koerner, 154 N. Y. 355, 374; Kelley v. People, 55 N. Y. 565; Gibney v. Marchay, 34 N. Y. 301, 305; People v. Willett, 92 N. Y. 29.) The defendant, as we have seen, was not permitted to reply, but was required to keep silent. His silence, therefore, could not, under the circumstances, be construed into an acquiescence or an admission of the truth of the matters embraced in the statement. The police officer could not tell whether Davis or Burns recognized the defendant further than by the statements made by them at the time when neither were under oath. Burns has not been sworn as a witness and we have no means of knowing whether he did, in fact, identify the defendant other than his unsworn statement made to the police. Davis, it is true, was sworn upon the trial and to some extent corroborated the police officer as to his identifying the defendant at the police station, but his declarations made at that time in reply to the instructions given him by the officer were not evidence and did not tend, under the circumstances, to establish an admission on the part of the defendant that he was the person who had been in the room with the deceased. No objection was taken by the defendant’s counsel to the evidence referred to, and, consequently, there is no exception which presents an error of law upon which a reversal of the judgment can be founded. Section 528 of the Code of Criminal Procedure, however, provides that When the judgment is of death, the Court of Appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.” This provision of the Code gives to this court the power, in its discretion, to order a new trial when, in its opinion, justice' requires it. This power may be properly exercised when it is apparent that the defendant has suffered gross injustice by the admission of incompetent evidence upon the main and vital issue, even though the defendant’s counsel has failed to object to its reception. The provisions of the Code, however, were not intended to relieve counsel from the duty of objecting and in case their objection is overruled of taking an exception to the admission of incompetent evidence. Counsel cannot be permitted to impliedly consent to the admission of evidence by remaining silent when it is offered and then insist that it is incompetent and that an error has been committed. No error of law is ¡presented for review unless a question is raised by an exception. The legislature has seen fit to invest this court with the power to grant a new trial. It is a power to be exercised or withheld in its discretion. Before a judgment of death is carried into execution this court must be satisfied that the accused has had a fair trial and that he is guilty of ' the crime. ■ If it is so satisfied, the power will not be exercised. If it is not satisfied, then it will avail itself of the power given. As we have seen, the incompetent evidence bore upon the chief vital question at issue. It is" of that character which must have had an important bearing upon the minds of the jurors, and, we fear, in a measure influenced their verdict. We think, therefore, that justice will be promoted by the granting of a new trial.

The judgment and conviction should be reversed and a new trial ordered.

Parker, Oh. J., O’Brien, Bartlett, Martin, Yann and Landon, JJ., concur.

Judgment of conviction reversed, etc.  