
    The People of the State of New York, Respondent, v. James Van Tassel, Appellant.
    
      Subornation of perjury—proof of acts and declarations of conspirators, out of each, other’s presence, is admissible—proof of attempts to induce others to swear falsely — cross-examination as to collateral matters.
    
    In order that evidence of the acts and declarations of one of two persons (both of whom have been indicted for the crime of subornation of perjury) in the absence of the other, should be competent against the latter, it must appear that the two persons acted from a common purpose and design to do the act constituting the offense.
    Proof of attempts, upon the part of the accused, to. induce other persons to testify falsely upon the trial of the same action, is admissible upon the questions of motive and intent.
    A witness cannot be cross-examined upon collateral matters merely for the purpose of forming a basis for the impeachment of his statements by other witnesses.
    Appeal by the defendant, James Van Tassel, from a judgment of the County Court of Dutchess county, rendered on the 18th day of June, 1897, convicting the defendant of the crime of subornation of perjury, and adjudging that he be imprisoned in the State prison at Sing Sing for the term of' four years.
    
      William H. Wood, for the appellant.
    
      George Wood, District Attorney, for the respondent.
   Hatch, J.:

The indictment charged the defendant and one Jacob Rieck with the crime of subornation of perjury, in that they procured George Roehle 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 defendant Van Tassel tending to show the several acts of the. defendants, and the acts and declarations of one in the absence of the other. It is conceded that such evidence is not proper, unless there be evidence sufficient to justify the conclusion that the persons charged acted from a common purpose and design to do the act constituting the offense. When the witness Eoehle was called it is quite doubtful whether evidence of the combination between the two defendants had been given which was legally sufficient to establish the combination and authorize the reception, of the evidence of the declarations of Eieck in the absence of Van Tassel. We may assume that. the evidence was not so sufficient; but.it was subsequently supplied by other evidence, and the testimony of the defendant and the letter written under his direction to Eieck was sufficient for that purpose. The error, if error it was, was, therefore, cured, and the question became one simply of order of proof and "the defendant does not appear to have been prejudiced thereby. The combination having been established, Eoelile’s evidence, as well as that which followed upon this subject, became admissible. (People v. Bassford, 3 N. Y. Cr. Rep. 219; People v. McKane, 143 N. Y. 455.)

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. <?., 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 ; People v. Zucker, 20 App. Div. 363; affd., 154 N. Y. 770.)

No error was committed in excluding the testimony of Mrs. Baker respecting the declarations claimed to have been made to her by the witness Hire. . The evidence which this offer sought to contradict was drawn out upon cross-examination and related to a matter collateral to the subject under investigation. It is a familiar rule of evidence that a witness may not he examined 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 defendant’s testimony as to conversation with Hire upon a matter quite similar; and we may add in this connection that the defendant testified fully respecting his relations with Hire, and covered every material element in the case, so far as Hire was connected with it. The testimony of Roehle 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 concurred.

Judgment of conviction affirmed.  