
    Supreme Court—Appellate Division—First Department
    November, 1905.
    THE PEOPLE v. WILLIAM GILHOOLEY.
    (108 App. Div. 234.)
    1. Trial—Eight op Accused Person to be Confronted by Adverse
    Witness.
    The constitutional requirement that a person accused of crime shall be confronted by the witnesses against him is satisfied if, at any stage of the proceedings upon the same accusation, he has the opportunity to cross-examine the witnesses against him either in person or through counsel.
    2. Same.
    Where, upon the trial of an indictment, it appears that a material witness for the People has left the State of New York, hut that on the preliminary examination of the defendant before a police magistrate, on which, by the defendant’s election, he was not represented by counsel, the absent witness was examined in the presence of the defendant, who did not cross-examine such witness, although he did cross-examine another witness produced before the magistrate, no constitutional right of the defendant is impaired by allowing the People to introduce in evidence the deposition so made by the absent witness.
    
      Appeal by the defendant, William Gilhooley, from a judgment of the Court of General Sessions of the Peace in and for the city and county of blew York, entered on the 27th day of January, 1905, convicting: him of the crime of subornation of perjury, and also from an order denying the said defendant’s motion for a new trial and arrest of judgment.
    Thomas Kelby, for the appellant.
    Edward Sandford, for the respondent.
   McLaughlin, J.:

The appellant was indicted for subornation of perjury in procuring one Kitty Wilson to swear falsely upon habeas corpus proceedings instituted by one May Williams, known under various aliases and held for extradition to the State of Illinois.

Kitty Wilson was sworn as a witness in behalf of the People and testified that the appellant procured her to commit the perjury which she did in the habeas corpus proceedings.

Substantially two errors are alleged, one being that Kitty Wilson was not corroborated to such an extent as is demanded by section 399 of the Code of Criminal Procedure providing that evidence of an accomplice must be corroborated by such other evidence as tends: to connect the defendant with the commission of the crime before a conviction, can be had thereon; and the other that error was- committed in permitting the learned district attorney to introduce in evidence the deposition of one Minnie Seymour (the People being unable to produce her as a witness upon the trial), taken upon a preliminary examination before .a magistrate upon the arrest of the appellant.

With respect to the first alleged error, I am of the opinion that the testimony of the witnesses produced by the People fully corroborated that of the accomplice and was sufficient to justify the finding that the appellant was guilty of the crime for which he was tried. It is urged that the alleged husband of Kitty Wilson was also an accomplice, and for that reason the testimony given by him could not, in any sense, be used to corroborate hers. He testified that while he knew his wife was being urged by the appellant to testify falsely, he advised her not to do so, and believed she would do what he told her. The jury had a right to credit his testimony in that respect as well .as in others, if they saw fit.

As to the other alleged error, the appellant was arrested and brought before a magistrate without a warrant. From what took place on that occasion he appears to have been quite undisturbed. He desired that his codefendant and himself be committed on entering the plea of not guilty. He ivas informed by the magistrate that sworn testimony was necessary, so that a warrant might issue, and he was advised that on giving such testimony he had a right to have counsel. He said he wished the aid of counsel, and the magistrate informed him he had time to send for one, and it was his (the magistrate’s) duty under the law to procure him counsel if he Avould designate some attorney he desired. Thereupon the appellant asked if, in case of an examination at once, he could be committed to jail and procure bail afterwards, and he was informed that could be done. The magistrate then entered upon his minutes that the .appellant failing to. request the court to send for an attorney, the examination was proceeded with and the witness Minnie Seymour was sworn and examined by question and answer in the presence of the appellant, and she signed her testimony. Kitty Wilson was also examined before the magistrate, and the record shows that the .appellant himself cross-examined her, but no cross-examination seemsi to have been made by him of the witness Seymour. The record also shows that there was some controversy with respect to an attorney by the name of Brande, who- happened to be in the courtroom at the time the examination was held, appearing for the appellant. A representative of the district attorney’s office insisted that it would he improper for him to do so in view of the fact that he was a member of the firm which appeared for the Williams woman on the habeas corpus proceedings and was under subpoena by the People to- appear and testify before the magistrate in the matter then being examined.

Irrespective of what may be said as to this controversy, there is nothing in the record to show that the appellant was deprived of procuring the aid of counsel; on the contrary,,it does appear that he had an opportunity to procure one and that he elected to have the examination proceed" in the absence of counsel so that a warrant might issue, to which he could plead not guilty, be committed, and procure bail speedily.

It was proved to the satisfaction of the trial court that the witness Seymour could not be found within the State so as to be produced as a witness on the trial. The same charge upon which the appellant was tried was made against him before the magistrate, and a preliminary examination was regularly had; the deposition of the witness there taken was taken in the presence of the appellant and he had an opportunity to examine her. Her deposition, therefore, was admissible in evidence upon the trial under the- provisions of subdivision 3 of section 8 of the- Code of Criminal Procedure. Permitting such evidence to be introduced is not a violation of the constitutional rights of one on trial for the commission of crime. (People v. Fish, 125 N. Y. 136; 8 N. Y. Crim. 129.) It is sufficient if one accused of having committed a crime has been once confronted by the witnesses against him in any stage of the proceedings upon the same accusation and has had an opportunity of a cross-examination by himself or by counsel in his behalf. (People v. Penhollow, 42 Hun, 103; 5 N. Y. Crim. 41.)

It is also suggested that a portion of the deposition was incompetent. The answer to the suggestion is that appellant’s counsel made no specific objection when it was offered, except to point out certain interlineations which are claimed to be not a part of the deposition, but which were shown, by proof, to have been such. If any question or answer contained in the deposition were improper, the appellant could have called the court’s attention to it by specific objection and have taken exception to any adverse ruling. Instead he contented himself with the broad objection that the defendant had not had an opportunity to cross-examine the witness. It appearing to the contrary, the court properly overruled the objection.

After a careful examination of the record I find no errors which call for a reversal of the judgment. The appellant had a fair trial, the evidence fully sustains the findings of the jury and the judgment and order appealed from, therefore, should be affirmed.

O’Brien, P. J., Patterson, Ingraham and Latjghlin, JJ., concurred.

Judgment and order affirmed.  