
    The People of the State of New York, Respondent, v. Arthur Mathew, Appellant.
    (Argued June 18, 1896;
    decided October 13, 1896.)
    Criminal Trial—Evidence — Corroboration of Accomplice — Code Grim. Proc. § 899. It is not necessary that the corroborative evidence, required by section 399 of the Code of Criminal Procedure as a condition precedent to a conviction upon the testimony of an accomplice, should of itself be sufficient to show the commission of the crime or to connect the defendant with it, but it is sufficient if it tends to connect the defendant with the commission of the crime; and if the trial judge is satisfied that there is testimony tending to connect the defendant with the commission of the crime, he is bound to submit the casé to the jury, who-are the sole judges whether the evidence relied upon to corroborate the-accomplice is sufficient.
    Appeal from judgment of the Supreme Court, entered. April 28, 1896, upon a verdict rendered at a Criminal Trial Term thereof, held in and for the county of Queens, convicting the defendant of the crime of murder in the first degree, and also from an order entered upon the minutes May 5,, 1896, denying a motion for a new trial.
    The facts, so far as material, are stated in the opinion.
    
      John B. Merrill for appellant.
    
      Daniel Noble for respondent.
   Bartlett, J.

The defendant, a colored man, stands convicted of murder in the first degree under the second count of the indictment found against him, which charges that he killed one Stephen Powell while engaged in the commission of the crime of robbery. John Waynes, also a colored man, was jointly indicted with the defendant, but demanded a separate trial.

This alleged accomplice of the defendant was the principal witness for the People, and it is undisputed that the conviction of the defendant would not have been possible in the absence of his testimony.

The case was tried with great fairness, and there are no exceptions that are seriously presented to us as calling for a reversal of the judgment.

The important question is whether the testimony of the accomplice was so corroborated as to sustain the verdict of conviction.

The Code of Criminal Procedure provides as follows: “ § 399. A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

It, therefore, becomes important to examine the corroborating evidence upon which the People rely to sustain the conviction of defendant and determine whether it is sufficient,, under the section quoted, as construed by this court.

On Saturday night, March 7th, 1896, Stephen Powell, a life-long resident and respected business man of the village of Hempstead, Queens county, Long Island, was murdered between eleven and half-past eleven o’clock, while going from his store on Main street to his house on Pulton street, a distance of only five or six blocks.

It was proved to have been a habit of deceased to carry about with him on his person considerable sums of money, and that this fact was more or less a matter of common knowledge in the community.

It appears by the undisputed evidence that the deceased was the victim of a highway robbery, and that his death was caused by wounds inflicted when he was within a short distance of his residence.

Mr. Powell left his place of business about eleven o’clock, stopped at a grocery store at the corner of Main and Fulton streets, made some purchases, and departed for home a little after eleven o’clock in company with two friends, who accompanied him to within a block and a half of his residence, when they left him; this was about quarter-past eleven o’clock. At about 11.18 o’clock a witness named Hines passed the deceased, who, at that time, was within one hundred yards of his home.

Five minutes or less later, one Lowe, who lived a little further up Fulton street than the deceased, was on his way home and found Powell lying on his back on the sidewalk insensible, his legs partially drawn up, his arms outspread, his overcoat, coat and vest open, the buttons of the latter torn off and the right-hand trouser’s pocket turned inside out; help was immediately summoned, the victim was carried into his own house and expired, without regaining consciousness, in less than an hour after the assault. The robbers, in their haste, did not secure all the money that the deceased had with him, as $50 was found in one pocket and $60 in another. The defendant and his alleged accomplice are young colored men of rather unsavory reputations, having been several times convicted of misdemeanors and shown to have been frequenters of places of low resort, and consorters with those of both sexes whose characters were questionable.

"Waynes, the accomplice, was an unwilling witness, audit is evident, on reading his testimony, that he did not give a full and accurate account of the transactions and conversation between himself and the defendant during the last forty or fifty minutes preceding the murder, which must have taken place between 11.15 and 11.20. o’clock. It is admitted by both the defendant and Waynes that they were together in saloons and on the street until half-past ten o’clock on the night of the murder; so it is unnecessary to refer to the large amount of evidence relating to the movements of these two men prior to that time.

As to the all-important hour between half-past ten and half-past eleven o’clock on the night in question the stories of the defendant and Waynes are in sharp and direct conflict.

Waynes says that at about half-past ten o’clock the defendant stated, when they were standing together on the street, that “ he would like to have some money to-night,” but the district attorney was unable to elicit from the witness- any further conversation or evidence of a scheme looking to the waylaying and robbing of the deceased.

Waynes states that he and the defendant passed along over a certain route that brought them near the corner of High and Fulton streets, being a point where the deceased would pass on his way home from the store, and that presently they saw him approaching, and when he crossed High street defendant told Waynes to come along, and they followed their victim. The defendant was in advance, and Waynes' saw him take something out of his pocket that looked like a black stocking hanging limp with a bunch on one end of it, wrap it around his hand, and when within two or three steps of the deceased he swung it in the air and struck him on the head, felling him to the ground.

It may be remarked here that the attending physician testified that the skull of the deceased was fractured by a blow ■ from a stone or some blunt instrument.

Waynes further stated that deceased was lying on his face, and that defendant turned him over on his back and rifled his pockets, while he (Waynes) kept watch, and then both ran away.

It is impossible in the absence of a map of the locality to trace intelligently by streets the route of flight from the-scene of the homicide to Clemens’ saloon, which seems to have been the objective point of these two men.

It will suffice to refer in a general way to certain incidents occurring prior to and during this flight, which are claimed on behalf of the People to corroborate the testimony of the-accomplice in a most satisfactory manner. The statement of Waynes that he and the defendant were in the immediate locality of the homicide a few moments before it took place,. is corroborated to some extent by the testimony of Mirando, a barber, and Mary Hickey, who from different standpoints and just prior to the murder, saw two colored men in the vicinity, one seven or eight inches taller than the other. The defendant is much taller than Waynes.

According to Waynes’ story he and the defendant in the ■early part of their flight, passed the corner of Jackson street and Terrace avenue, and one Treadwell swears that at 11.20 •o’clock, when going up the front steps of his house at that point, he saw by the electric light two men running, and his •sister, who was sitting at the back parlor window between 11 and 11.30 o’clock, saw two men running down Jackson street towards the house of Alanson Abrams.

Waynes says that, when near Abrams’ barn, defendant asked him for his knife; that he took it from his overcoat pocket, where he carried his pipe, and gave it to him; that defendant cut the stocking, threw it in the road and they continued their flight on across Main street to the railroad yard.

It is to be remarked in passing that the coachman of Abrams found the stocking, a tobacco bag and Waynes’ pipe with the latter’s name carved on it, the next morning in front of Abrams’ barn, and further on two stockings, one of which had been cut.

Mrs. Brower and her daughter, at the trial, identified these ■stockings as given by them to defendant’s alleged wife in February, 1896, being the month before the murder.

Waynes swears that when they passed through the railroad yard they saw a man at the engine house.

At the trial, an engine cleaner, who was on duty at the ■engine house the night of the murder at about 11.30 o’clock, •swore that he saw two colored men pass, one larger than the •other, and the larger man had on a light overcoat and the smaller one wore either rubber boots or shoes.

This description of dress agrees perfectly with the manner in which both were attired on the night in question.

Waynes, continuing his narrative, says that, after leaving -the railroad yard, they ran down Fulton street to the church and old burying ground; that defendant at this point made the motion of throwing something away twice, and that he (Waynes) heard some object strike the gravestones with a “clink.” At the trial it was shown that detectives, after Waynes had made a confession, searched in the churchyard and found the large key of the murdered man’s store and a round stone unlike any others to be found there. The attending physician of the deceased swore that this stone could have produced the fatal injury.

Waynes concludes the account of the flight by stating that further on they met certain of their companions in the street, and finally brought up in Clemens’ saloon. This latter statement is corroborated by at least four witnesses.

It is unnecessary to go over defendant’s story in detail; he swears that he parted from Waynes at half-past ten o’clock on the night of the murder, and did not see him again until he met him with others in front of the Town Hall about half-past eleven o’clock; he denies in the most positive manner generally and in detail Waynes’ account of the murder and the subsequent flight implicating him, and avers that he was not present when Stephen Powell was stricken down and robbed.

The only corroboration of this attempt of the defendant to prove an alibi is found in the testimony of Edward Dorsey, who swears he saw the defendant on the night of the murder, at six or seven minutes past eleven o’clock, in front of the Town Hall, and he asked him what he was doing there and he said he was waiting for John Waynes; the witness then went home.

On cross-examination Dorsey swore that he had never mentioned the fact, before he testified, of seeing the defendant at this time to any one, not even to defendant’s counsel. The improbable story of this witness was considered by the jury and evidently discredited.

If the defendant had stood for an hour on the street, as he claims, in the busy part of the town on a Saturday night, it seems quite incredible that he should be unable to prove the fact by only one witness. On the morning after the murder the defendant and Waynes were arrested, taken before the coroner, examined and discharged. The defendant immediately afterwards, in company with a woman who lived with him as his wife, went to Eoslyn to see his mother with, as he claims, only two dollars in his pocket.

At Mineóla they were too late for the train and decided to drive over to Eoslyn, and a bargain was made for a conveyance with James McGuire, the bartender of the Mineóla Hotel, defendant agreeing to pay §1.50.

McGuire wras sworn at the trial and testified that when defendant paid him he pulled out a handkerchief and took from it the money, and that there was still money in the handkerchief when he folded it again.

This witness could not say how large the roll of bills was, but would only swear there was money in the handkerchief when returned to defendant’s pocket.

After arriving at Eoslyn defendant took his companion to the house of his mother, and leaving her there went to Pearsall’s saloon.

While there Gildersleeve, a constable from Hempstead, entered the saloon; he had been sent over to rearrest the defendant; before he did so, and while there in the presence of the defendant, the latter sent some one to his mother’s house to borrow forty cents with which to pay for drinks he had ordered. Gildersleeve arrested the defendant, placed him in a wagon and started for Hempstead ; at this point a colored man named Tolliver came out of the house of defendant’s mother and, running after the wagon, asked Gildersleeve to allow the defendant to step back as he wished to talk with him; permission was granted and defendant walked back to where Tolliver stood; the latter then said to defendant, Tour wife wants money to get home with.” Tolliver, swearing to this incident on the trial, said that defendant at first stated he had no money, but finally took a large roll of bills from his pocket and handed it to the witness, who gave it to the woman known as defendant’s wife.

The defendant denied that he gave Tolliver any money, and the mother and the woman with whom defendant lived swore that Tolliver gave no money to the latter, or any one else, when he returned after this interview with defendant in the road. It is claimed on behalf of the People that McGuire and Tolliver were disinterested witnesses, and that the jury were justified in believing that the defendant had a considerable sum of money on his person the day after the murder.

As before intimated, the important question in this case is-whether the testimony of Waynes was corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” (Code Grim. Pro. § 399.)

Prior to the enactment of this section a jury, if satisfied of the truth of statements made by an accomplice, could convict on his testimony alone. (People v. Costello, 1 Denio, 83; People v. Dyle, 21 N. Y. 518; Dunn v. People, 29 N. Y. 523 ; Linsday v. People, 63 N. Y. 154.) This section introduced a new rule of evidence.

In People v. Elliott (106 N. Y., at page 292) Judge Earl, in commenting on this section, said: “ It is not necessary that the corroborative evidence of itself should be sufficient to-show the commission of the crime or to connect the defendant with it. It is sufficient if it tends to connect the defendant, with the commission of the crime. Eor need the corroborative evidence be wholly inconsistent with"the theory of the defendant’s innocence.”

If the trial judge is satisfied that there is testimony tending to connect the defendant with the commission of the crime as the statute requires, he is bound to submit the case to the jury, who are the sole judges whether the evidence relied upon to corroborate the accomplice is sufficient. (People v. Everhardt,. 104 N. Y. 591.)

In the case at bar the learned trial judge, in a charge so absolutely fair that both sides were satisfied with it, told the jury that they were called upon to consider some direct evidence, some circumstantial evidence and the confession of the accomplice, and he left it with them to ascertain the truth.

After a careful study of this record we are of opinion that the verdict of the jury convicting the defendant of murder in the first degree is amply justified by the evidence.

The corroborating evidence from the time the defendant •and his accomplice approached the scene of the murder until the termination of their flight at Clemens’ saloon is most persuasive and impressive, strongly illustrating that strange fatality which so frequently accompanies the commission óf crime. It is also to be remarked that Waynes, the accomplice, did not testify with the promise of full indemnity, the record showing him to have been a most unwilling witness, and after the verdict in this case lie was arraigned and a plea accepted of manslaughter in the first degree.

The only exception argued in this case was as to the rejection of evidence offered on behalf of the defendant to the effect that certain disreputable companions of Waynes in Hempstead saloons on the night of the murder were spending money freely the next day at a hotel in Wantagh. This evidence was wholly immaterial and properly rejected.

The judgment of conviction and order appealed from should be affirmed.

All concur.

Judgment and order affirmed.  