
    People v. Buddensieck.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 1, 1886.)
    
    1. Indictment—Manslaughter—Code of Criminal Procedure, § 284.
    Since the enactment of the Code of Criminal Procedure, the rules of the • common law in regard to the form of indictments are no longer applicable.
    2. Same.
    An indictment for the crime of manslaughter in the second d 'gree where the defendant is accused of that crime by the grand jury, which accusation is followed by a brief description of the crime as it is given by the statute, and the rules prescribed by section 284 of the Code of Criminal Procedure are complied with is sufficient.
    3. Same.
    That the facts constituting the crime are set forth in language which, in its signii canoe, exceeds what has been required by the statute, is no objection to an indictment.
    4. Jurors—Disqualification of.
    A juror in a prosecution for manslaughter in the second degree, committed by culpable negligence in the erection of a building, by reason of which it fell, causing the death of a workman employed on the building, is not disqualified because he entertains an opinion that the Building fell on account of the carelessness of some one.
    5. Same.
    A person called as a juror in a criminal case is not disqualified because he entertains an opinion in regard to it, provided he can swear that he believes the opinion will not influence his verdict, and that he can render an impartial verdict according to the evidence, the courc being satisfied of the truth of such statements.
    6. Manslaughter—Culpable carelessness—Evidence.
    In the trial of a person for the crime of manslaughter committed by culpable carelessness in the erection of a building, reports of the condition of the buildings, which subsequently fell, made to the bureau of inspection of buildings of the city of New York, by one of its examiners, were ad-, mitted in evidence against the objection and exception of defendant. Before receiving said reports in evidence, their entire substance and effect were stated by the superintendent of said bureau in the course of his examination as a witness, without exception or objection on the part of defendant. Held, that as the reading of the neport added nothing to the evidence already before the jury, no error was committed in receiving it, for which a conviction should be reversed.
    7. Same.
    It is proper on the trial of such a case to submit to the jury specimens of mortar taken from several parts of the fallen buildings, just after their fall, and also a specimen of mortar which experts have designated to be good.
    8. Same—Culpable negligence—What is, in such case.
    The culpable negligence which makes a person committing it guilty of manslaughter when another person’s death is occasioned thereby, is the ■ omission to do something which a reasonable and prudent man would do, or the doing of something which, under the circumstances surrounding each particular case, such a man would not do; or it is the want of such care as a man of ordina.y prudence would use under similar circumstances.
    9. Same—Defense.
    In a prosecution for manslaughter, committed bv culpable carelessness, occasioning the death of another, it is no defense" that the deceased was guilty of contributory negligence.
    10. Same—What is not error in charge of court.
    Where the court charged the jury that if they come to the com lusion .a witness has wilfully and corruptly sworn to a state of facts which he knew to be untrue when he swore to it, they have the fight to disregard his evidence. Held, not error.
    Appeal from a judgment of the court of general sessions of the county of New York, convicting the defendant of manslaughter in the second degree.
    
      Richard S. Newcombe, for appellant.
    
      De Lancey Nicoll, assistant district attorney, for people.
   Daniels, J.

The defendant was indicted with three other persons for the crime of manslaughter committed by culpable carelessness in the erection of a block of buildings on the south side of Sixty-second street, between Tenth and Eleventh avenues, in the city of New York, which while in the process of erection fell and caused the death of Louis Walters, who was a workman employed in the buildings. The indictment has been objected to as insufficient upon various grounds, to some extent colorably supported by the authorities cited by the counsel for the defendant. But in urging "these objections and endeavoring to sustain them by the authorities referred to, the counsel seems to have overlooked the fact that they no longer furnish the rules for testing the sufficiency of an indictment. These rules at the common law were exceedingly technical and artificial in many respects, so much so as to have, substantially obstructed the administration of criminal justice and to have sacrificed that object to the observance and application of rules having but 'little, if anything, to do with the protection of the accused, or the sensible administration of the law. They may have been very well for the times in which they were devised, but became totally unadapted to the intelligence and progress of later periods, and their abrogation became necessary in the promotion of the ends of public justice. The present law accomplished a valuable purpose without entrenching upon the rights or securities of the accused, in abrogating and superseding the absurdities of many of these rules. As the law has now been enacted, what the indictment is required to contain in the description of the crime alleged to have been committed is a concise statement of it, without unnecessary repetition. And a general precedent required to be followed in framing indictments has been inserted in section 276 of the Code of Criminal Procedure. And that permits the defendant in a case of this description to be by the grand jury accused of the crime of manslaughter, following the accusation with a brief description of the crime, as it is given by the statute. And when that is done, and the indictment complies with the rules prescribed by section 284 of the Code of Criminal Procedure, then it is to be held to be sufficient by the court. People v. Reavey, 38 Hun, 418.

This indictment does comply' with these rules, for it alleged the crime to have been committed at a place within the jurisdiction of the court prior to the finding of the indictment, and plainly and concisely sets forth the act or omission intended to be charged as the crime. And it was accordingly not defective in omitting to point out the precise locality where the offense was designed to be alleged to have been committed. And the time was sufficiently stated, although it was continuous, for it related to and charged culpable negligence in but one thing, and that was the erection and the progress of the erection of the building afterwards faffing. And it set forth, as that was required by subdivision 3 of section 193, and section 195 of the Penal Code, the facts constituting the crime of manslaughter within these provisions as that had been directed in the form of the indictment prescribed by section 276, and by section 283 of the Code of Criminal Procedure. And that it did so in language exceeding in its significance what may have been required by the statute was productive of no possible injury to the defendant.

After the close of the trial a motion was made on various grounds for the arrest of the judgment. This motion, by section 467 of the Code of Criminal Procedure, as that was amended by chapter 360 of the Laws of 1882, can only be founded on defects in the indictment mentioned in section 331 of the Code, and they, by that section, include only the objection to the jurisdiction of the court over the subject matter of the indictment and the objection that the facts stated do not constitute a crime. The facts stated in this indictment did constitute a crime, and the court had jurisdiction over the subject of the indictment, and the motion in arrest accordingly was lawfully denied.

Three jurors were allowed to sit and act in the case against the objections of the defendant’s counsel made to their competency. They had formed opinions from what they had read concerning the case, and these opinions were retained at the time of the trial. The opinions of two of the jurors were not upon the guilt or innocence of the defendant, but were confined to the subject alone of negligence. The juror Jacob M. Bloom was of the opinion that the building had fallen by reason of the culpable negligence of some person. And the juror David F. Meyer had the impression “that some one was guilty of negligence.” These opinions did not implicate the defendant, or in any manner preconsider the point of his guilt. They were no more than conclusions that the bunding had fallen on account of the carelessness of some person. It might be that of a workman, a sub-contractor or superintendent, or any other person than the defendant himself, and, therefore, did not necessarily include the charge made against the defendant. And it related to an isolated fact which would commonly be assumed from the falling of a building caused by no intervening agency likely to affect its stability. The presumption would at once arise that there had been carelessness somewhere, without tracing or attributing it to any particular person. And such an opinion, or impression, partial as it was, would not disqualify the person entertaining it as a juror. Hagadorn v. Com. Mutual Ins. Co., 22 Hun, 249; Sewenberg v. People, 27 N. Y., 336; Dew v. McDivilt, 31 Ohio, 159; Carpenter v. People, MSS. op. in this general term.

In the further course of the examination of the juror, David F. Meyer, he testified that he had no prejudice against the defendant, that he could render a verdict alone upon the evidence he should hear from the witness stand, and that his verdict or judgment would be entirely uninfluenced by any other person or persons. And he was accordingly a qualified juror. For what the law requires to render a person entertaining an opinion a qualified juror in a criminal case is, that he shall be able to swear, and shall swear: “ That he believed that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence.” Section 376, subd. 2, Code of Orim. Pro. This juror’s evidence brought him, within this legislative provision, and as the court was satisfied that he did not entertain such a present opinion or impression as would influence his verdict, the exception taken to the ruling accepting him as a juror is unsupported.

The juror, Jacob M. Bloom, at the conclusion of his evidence stated that if the evidence removed his opinion, that this act was the result of culpable negligence then he could decide the case on the evidence above, and that he would first before considering that evidence, require the removal by evidence of his opinion, that this act was the result of culpable negligence. But these answers were upon the supposition as the questions were propounded, that the opinion he entertained was to be overcome or removed by evidence. And such must always be the answers when an opinion has been formed, and still remains upon the mind. For when an opinion has once been formed, it can only be changed or removed by evidence. But the law does not require that change or removal, for the competency of a person as a juror. It, on the contrary, by its language assumes the continuance of the opinion and places the competency of the person on his ability to free his mind for the time from the control and effect of the opinion. And that is not an uncommon mental process. If the opinion is to be opposed to the evidence it will always require evidence to counteract its effect. But the competency of a person as a juror consists in his ability to put his opinion aside and not .permit it to antagonize the evidence. And when he swears that he can and will do that, the law permits his acceptance as a juror. This person did so swear. His testimony was that notwithstanding his opinion which he had formed as to the occasion of the disaster, he believed he could dismiss that opinion from his mind, “and render a verdict upon the evidence alone uninfluenced by it.” He further added that he could render an impartial verdict “according to the evidence alone.” This evidence complied with what the law required, and proved that in the last answers which were given, the juror was testifying as to what would become necessary to change or remove his opinion if that should be undertaken and not as to his ability to consider and decide the case wholly on the evidence. The answers of this juror were very much the same as were those of the juror, Topletz, in People v. Court of Oyer and Terminer (33 N. Y., 436). For he in like manner swore that he had read of the case in the newspapers, had formed in some degree an opinion in regard to it, and it would require evidence to remove it. But as he was also able to swear that he could hear and decide without being influenced by ids opinion he was considered a competent juror. Id. 451. In Balbo v. People (84 N. Y., 484), the juror, Edward H. Betts, had formed an opinion which he said it would “require strong evidence to remove.” But as he was able to and did swear that he could give a verdict upon the evidence that should come from the witnesses, and was not conscious of having in his mind any impression which would prevent him from acting fairly and impartially his his competency as a juror was approved. And in Phelps v. People (72 N. Y., 334), a juror was held competent even though he stated that he hardly thought he could pass upon the evidence as free and unbiased as if he had never heard of the case, Within these authorities as well as the language of the statute itself Bloom was a legal juror. For he had testified to his unqualified ability to hear and decide the case without being influenced by his opinion, and by1 his final answer detracted nothing from the force of these answers, but only described what would in his judgment be required to change or remove his opinion if that should he required to be done in the course of the trial of the defendant, no such change has been rendered necessary. But the juror may still retain his opinion in all its force, provided he can swear that he believes that the opinion will not influence his verdict, and that he can render an impartial verdict according to the evidence and the court is satisfied of the truth of such statements. These provisions were complied with, and this person was lawfully received as a juror. Cox v. People 80 N. Y., 500, 512-13.

The juror Samuel Neil had formed an opinion from what he had read in the newspapers, and had that opinion at the time of the trial. His impression was that some one was guilty of negligence, but as he swore to his ability to hear the evidence and decide the case alone on that without being influenced by his opinion, he too was rightly held to be a competent juror.

In the case of People v. Tymell (3 N. Y. Crim. Rep., 142), which has been cited by the defendant’s counsel, the juror failed to express himself as to his ability to form his conclusion solely from the evidence without being biased by his opinion as the statute has declared that to be necessary to render him a competent juror. In that respect he failed to do what each of these three jurors most positively affirmed.- And the authority is entitled to no effect in the decision which is now to be made.

It was made to appear on the trial that reports were from time to time made to the bureau of inspection of buildings by one of its examiners of the condition of the block of buildings while it was in process of erection by the defendant. The earlier reports made in January, 1885, while they stated the building to be defective and unsafe, were accompanied with evidence that on notice to the defendant, he had removed and supplied the defects. And so far they were read in evidence by his counsel, without objection from the prosecution. But there were twelve other reports made from and including the 17th day of January not brought to the attention of the defendant, which stated the building to be in another part of it defectively built and unsafe, which the defendant’s counsel did not offer in evidence. They continued until the day the building fell, the 13th of April, 1885. And the defect and danger they referred to were in no way removed or corrected, but it continued until the block fell. The first of these reports stated that the easterly gable was out of plumb, and bulged above the second story, and was unsafe. Those subsequent to that report stated that this was an unsafe building without specifying in what respect it was unsafe. They were all offered in evidence by the prosecuting attorney and objected to by the defense as incompetent, irrelevant and exparte papers, and that no knowledge of the matters they contained was obtained by the defendant or any notice of them given to him. The court allowed the reports to be read, and an exception to that ruling was taken by the defendant. These statements of the examiner- were no more than his declaration not under oath, that the- buildings were being unsafely erected. And if they had been received on proof alone that such reports had been made, the ruling could not be sustained. For as the reports contained no more than the unsworn statement of the person making them, that was not evidence either in a civil or criminal trial. “The law rejects all hearsay reports of transactions, whether verbal or whether given by persons not produced as witnesses. The principle of this rule is that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary tests enjoined by the law for ascertaining the correctness and completeness of his testimony, namely, that oral testimony should be delivered in the presence of the court or a magistrate under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motives and deportment of the witness, can be examined, and his capacity and opportunities for observation and his testimony can be tested by a cross-examination.” 1 Greenleaf on Ev., § 124. This is a general rule of the law of evidence which, subject to certain necessary exceptions which do not affect this case, excludes mere unsworn statements and reports not made by or under the authority of the persons to be affected by them as evidence in legal contests.

But this judgment is not to be reversed, even though the court may have erroneously received the reports themselves in evidence. For before either was received, the witness, Albert F. D. D’Oench, was interrogated concerning them, and their full import was disclosed by him in his evidence. The report which has been most strenuously objected to is the one which is dated on the 17th of January, 1885, in which it is stated that the easterly gable of the building was out of plumb, and bulged above the second story, and was unsafe. The report went no farther than this in its statements of facts. Upon that the building was reported to be unsafe and dangerous. And as much as that was obtained from the same witness in the course of his cross-examina-' tion by the defendant’s counsel. He had stated previously that in his judgment the building had fallen towards the west. And he was asked by the counsel what other reason he had for this belief beyond the fact that the eastermost building had fallen against the others, and one after the other had then toppled over. And his answer was, “The other wall of the east house had been reported out of plumb.”

Q. Then from some report that came to your knowledge that the wall was out of plumb, you concluded that that building had first fallen? A. Yes; that was the only wall reported out of plumb at the time.

Q. Was there any other reason except that report that the wall was out of plumb that induced you so to conclude? A. The material and the position of the fallen brick; everything tended to the west.

And that this answer related to this particular report is further evinced by other answers afterwards obtained, when the further cross-examination was resumed of the same witness, for he was then asked:

Q. That bulge of the easterly gable that you refer to—is it from that fact that you primarily base your judgment that the fall of these buildings commenced at the easternmost building? A. Yes, sir.

Q. Did that bulge in or out? A. Outward.

Q. Outward? A. That I assume.

The counsel then moved to strike out all the testimony of the witness about the easterly gable, as it appeared to be hearsay. But that was denied, and properly so, too, for the reason that it had appeared in the first examination of the witness as to this fact by the counsel, that he was speaking only from what had been reported. After the first evidence had been obtained from the witness he was further examined concerning the same fact both by the court and the counsel for the defense, as well as the prosecution. His answers to the questions then put to him still further disclose the nature of this and the other reports, if anything could have been required for this purpose beyond the answers first obtained by the defendant’s counsel. This evidence was all taken without the least intimation that there was any objection to receiving it, and it is accordingly to be assumed that it was taken with the assent of the defendant’s counsel, inasmuch as that subject had been opened and introduced by the evidence which he pbtained.

The other eleven reports did not particularize in what respect the building was unsafe, but simply reported it under the head of unsafe buildings. And they accordingly added nothing whatever to what was contained in the report dated the Uth and usually referred to in the evidence as the report of the 19th of January. From the evidence which was given it appeared that they were not designated to add to or extend that report, but merely followed it by way of repeating the. statement that the building for the same cause was still an unsafe building. In the evidence which was taken these reports were mentioned in this manner. And it was further shown that when a building has once been reported unsafe, it was a practice afterwards to continue to make reports upon it until it should be made safe, and then the reports would be discontinued. In the course of the first cross-examination of this witness he was asked to detail what were the duties of the inspectors and examiners. But the answer was excluded on the objection of the district attorney. That, however, was immediately corrected, for the witness was allowed to proceed and make a statement of such duties, and among them was stated to be the duty of reporting unsafe buildings. The question was then asked by the defendant’s counsel:

It is their duty to properly make their reports to you after examination of the buildings ? A. They must make proper reports.

Q. Is it their duty to pay any attention to materials that are used in the construction of the buildings? A. Certainly.

Q. What ? A. Report if bad materials are used.

Q. Was any report made at any time by the examiners of any-improper material being used, or other violation of the building law in the erection of these buildings ? A. They were reported unsafe.

Q. When ? A. I will have to refer to the papers.

The witness then looked at a report of January 19, stating that the rear wall above the third story is bulged outward and unsafe. The witness was afterwards asked :

Q. What are those reports you have in your hands ? A. Unsafe reports.

Q. (By the Court) : With reference to those buildings ? A: Yes, sir.

After the reports as to the defects in the rear wall were read, and it appeared from them that those defects had been removed by the builder, the witness was further cross-examined by the defendant’s counsel, and asked :

Q. Is there any subsequent report prior to the falling of these buildings of like character in the records of your department respecting these buildings ? A. There is that one you had received, ninety-six, that easterly wall.

Q. ¡Ninety-six is a part of the series ? A. Yes.

And that report designated as ninety-six is the one dated on the 17th and called the report of January 19, 1885. The Court then inquired:

Q. Is there any report between the 19th of January and 13th of April, when these buildings fell, with reference to their condition ? A. Yes, sir.

Then the defendant’s counsel interposed with the question:

Q. This is not a complete report? A. ÜSTo, sir.

Q. It is not a final report? A. ¡No, sir.

Q. (By the Court) : There are other reports between the 19th of January and the 13th of April—is that right? A. Yes, sir.

Q. (By the defendant’s counsel). ¡No. 96, so that we may be _ clear about it, is one of a series referring to the other buildings, and referred to in the reports of January 19 ? A. Yes.

Q. Did you say you had any reports with reference to these buildings on Sixty-second street, between the 19th of January and the 22d of January? A. Yes, sir.

Q. And prior to the falling? A. Yes, weekly reports.

The direct examination was after that resumed and the witness was asked by the District Attorney:

Q. Look at the papers now shown you and tell me what they are? A. They are weekly reports of Examiner Mackey of what is being done in regard to unsafes.

Q. Unsafe buildings in the city of ¡New York? A. Yes, in his district; it embraced his district.

These reports were then offered in evidence, and the defendant’s counsel interposed and said: “Before they are put in evidence I have a right to examine this witness upon them.

Q. These are weekly reports made by the examiner of the district? A. Yes, sir.

Q. To whom? A. To me, to the Fire Department.

Q. For what purpose? A. To report the condition of the buildings; to keep a record in compact form of the condition of the unsafes.

Q. That is, if a building is once reported unsafe, as this building was on January 19, that then thereafter with respect to this building there is a weekly report? A. Yes.

Q. A weekly report does not mean that the buildings are unsafe and new, but refers to reports made before. Is that right? A. Yes.

Q. Then these are simply continuous references to the weekly reports concerning these buildings which had been reported unsafe on January 19. Is that what you mean? A. Yes.

Q. Does the report contained in this paper constitute a report of new and unsafe buildings, or does it mean a report of the condition of the building that at some time previously had been reported unsafe? A. The report on that day of-how the building is.

Q. Which at some time previously had been unsafe? A. Yes; whether it had remained so or had been changed.

Q. There must be a complaint regularly made before the builder is notified? A. Yes, sir.

Q. In the form of 90 to 96 inclusively? A. Yes.

Q. This paper is for mere private information? A. Yes.

Q. Private information for the department? A. Yes, to keep a report of all unsafes.

Q. For your own private information? A. Yes.

Q. And the report commences immediately when a building has once been reported to be unsafe and is then reported to have been made safe? A. Yes, sir.

Q. Does it mean that those buildings having been reported are to be regarded as unsafe from the fact of that report? A. Yes.

Q. And, therefore, having once been reported to be unsafe they were continuously reported for the information of the officers of the department? A. Yes, sir, unless made safe.

And when made safe, the witness answered, they would not be reported. As to these reports the witness was further asked:

Q. And they show that the requirements of the orders that were made under those other papers had not been complied with? A. Yes.

Q. That the work had not been done. A. Yes, sir.

In questions propounded to the witness concerning the first of the controverted reports, it is mentioned as the report of the 19th of January, although dated the 17th, because that was the date on which it is stated by an -indorsement upon it, that it was forwarded to the board of fire commissioners, with a recommendation that the accompanying notice should be served. The others are the general reports, including this among the unsafe buildings. From all this evidence, it is too clear for any ground of 1 controversy, that the jury had been made fully aware of the contents of the reports of the condition of the building before they were offered in evidence by the course of the' examination commenced by the defendant’s counsel, and chiefly carried on by questions which he required to be answered by the witness. And after having acquired that information, as fully as it was given by the witness, whose evidence upon this subject was in no manner contradicted or reduced in force, the reading of the reports themselves to the jury added nothing to the weight and effect of the testimony. It was simply reading formally what before had been stated in its full substance and effect, without objection on the part of the defendant, and mainly at the instance and solicitation of his own counsel. The reading of these reports, therefore, could in no respect prejudice or work any injury whatever to the case of the defendant! And where that appears to be the fact, the evidence erroneously received camiot be made the ground for a reversal of the judgment.

Lancaster v. Collins (115 U. S., 222), where it was said in the course of the opinion and sustained by the citation of authorities, that “no judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made. Id., 227.

The Code of Criminal Procedure, by section 542, embodies the same principles. For it has been there provided that “ the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” These exceptions which were taken to the introduction of the reports in evidence, cannot be sustained, for the reason already stated, that they added nothing whatever to the force, effect or weight of the evidence previously received concerning the same facts upon the trial.

Exceptions were also taken to the ruling of the court by which specimens of mortar obtained from a mortar-bed in front of the fallen buildings, and mortar taken from the wall of the buildings on the afternoon after they had fallen, were allowed to be exhibited to and examined by the jury. But. this exception is clearly without any merit for its support. For as these were substances required to be described for the intelligent understanding of the case by the jury, they could very well be exhibited to and examined by them for the purpose of creating entirely accurate impressions as to their condition in the minds of the jury. The effect of the evidence may have been slight. But that was no reason for its exclusion. As long as it was pertinent to the case, as it clearly was, it was for the jury to consider it.

A piece of brick was also shown to the jury which was stated to have mortar attached to it which was designated as good. And that was likewise evidence to enable the jury to distinguish between that which had been taken from the building and which the experienced builders, designated as bad, from that which it was the duty of the. defendant to have used in the erection of these buildings. Mortar was also obtained from the walls of the buildings on the 25th of April, twelve days after it fell, by the witness Chandler. This was put into bottles, which were allowed to be' exhibited to the jury. And as the specimens were selected from the walls in different localities of the buildings, they were for the same reason evidence which the jury might inspect and consider.

Photographs were also exhibited to the jury of the appearance of the wall taken while the trial was progressing. These photographs exhibited cracks in a portion of the wall which they included. But in that respect they were stated to be in the condition so far as the walls remained in which they were when the witness had first observed them, upon the 25th of April. There was no impropriety in allowing the jury to inspect these photographs, as they aided and assisted them in obtaining a correct impression of the condition of the walls as they were probably left at the time of the disaster.

It was a mistake to affirm, as that has been done in the points, that the court refused to allow the concession of the prosecution to be placed upon the record, that the iron work was all right. For the case discloses the fact that this concession was received precisely and as fully as it was. made. It would have been improper to allow evidence to be given that complaints had been made against the defendant concerning his conduct in the erection of other buildings. And the evidence given by the witness did not. prove the making of such complaints. He was asked:

Q. Did your department, during your administration, make any complaint against him? A. I believe they did.

Q. For the use of bad mortar? A. I don’t know.

This evidence fell far short of establishing any such complaint, and it did the defendant no possible harm, and the exception .therefore to the ruling of the court allowing it to-be given is not to be sustained.

These are the more important exceptions which were taken to the admission of evidence during the progress of the trial. For those which were taken to the allowance of expressions of judgment by the witnesses who were builders, concerning the building and the materials used in erecting it, were clearly admissible. They were men of experience in this occupation, and were capable of speaking intelligently as well as effectually from the knowledge acquired by their experience and skill. After the close of the defense the prosecution gave evidence which had the direct effect of controverting the truthfulness of the statements made by the defendant as a witness in his own behalf. And it could very well be considered as rebutting evidence by reason of that circumstance, even though it at the same time had a tendency also to make out the charge contained in the indictment. If the latter was its only effect the court in its discretion still had the right to receive it. And the objection that it was not proper proof by way of rebuttal is without legal support.

Upon the cross-examination of the witness O’Reilly he was asked whether he did not say to G-lydon that “ Buddensieck told you to take your man in there and strengthen the wall; that you would not do it for him, and that you did not care if the house would fall, and as soon as Buddensieck’s back was turned you will take your man out ?” The witness answered that he did not, and as the case was about to close the witness Glydon was asked : “Did O’Reilly on the day when the buildings fell come after you when you had gone to Barnum’s circus, and say to you that Buddensieck had told him to take his man in and fix up the foundation walls that morning, but that as soon as Buddensieck left he had taken his men away, and that the buildings would fall that day, he thought, and that he did not care,” etc., “or that in substance ?” This last inquiry, it will be observed, was not precisely that made of the witness O’Reilly, but if it had been, there was no error in excluding the answer, for the reason that it did not relate to a material inquiry in the case. What may have been said between O’Reilly and Glydon on this subject could have' no material effect upon any part of the inquiry included in the indictment. And the rule is well settled that a witness cannot be interrogated as to an immaterial statement and after-wards contradicted in his statement by evidence given on the part of the person interrogating him.

The other exceptions to the evidence have all been examined, but neither of them seems to require any special consideration for the decision of the appeal. As a general rule care was taken to receive whatever evidence was pertinent to the charge contained in the indictment, as wen as that otherwise offered, when it could have any effect whatever in the way of excusing the defendant from the charge made against him.

The indictment appears to have been framed and the trial had under subdivision 3 of section 193,. and section 195 of the Penal Code of the state. The charge against the defendant was that he had, by means of culpable negligence and misconduct in the business in which he was engaged, occasioned the death of the person named in the indictment. And the case was submitted to the jury in the charge of the court, elaborately discussing and explaining this charge. The subject to which the principal exception has been taken on this part of the case includes what the court said to the jury concerning the definition of the phrase “culpable negligence.” Care was taken to explain and illustrate the meaning of this phrase to the jury. And it was finally explained to them in a manner that certainly did no injustice to the defendant. For it was finally held and stated that “culpable negligence is the omission to do something which a reasonable and prudent man would do, or the doing of something which such a man would not do under the circumstances surrounding each particular case.”

Or it is the want of such care as a man of ordinary prudence would use under similar circumstances.

And that was in accordance with the definition contained in subdivision 1 of section 718 of the Penal Code, by which it has been enacted that “each of the terms neglect, negligence, negligent and negligently, imports a want of such attention to the nature or probable consequence of the act or omission as a prudent man ordinarily bestows in acting in his own concerns.”

What the law designed to render criminal was such a careless act or omission on the part of the accused as will endanger the personal safety or life of another, and which, by the exercise of reasonable attention and exertion, would be avoided. As much as that is a duty which every person owes to another. And it was upon the failure to observe the requirements of this rule that his liability to conviction by the jury was placed by the court. It is not correct to affirm that the court relinquished the construction of the law to the jury, for that was not done. But they were required to find whether the conduct of the defendant was included with the definition which was given of culpable negligence.

They were instructed: “It is for you to say on the question of negligence whether this defendant took the ordinary, usual and reasonable precautions, everything being considered, to prevent the falling of the buildings.” “ And one of the questions in this case for you to determine will be whether, under all the circumstances, this defendant was not bound to resort to every reasonable and proper means within his power to prevent the softening of the mortar by the action of the water, snow and ice in those cellars, and whether he did so, and whether he was not bound to exercise a larger amount of care and caution in consequence of there not being a sewer in that street at the time he commenced the erection of those buildings.”

And “it was his duty to exercise the necessary care and protection which a prudent man would exercise and ordinarily bestow in acting in his own concerns.”

And in responding to the requests made on behalf of the defendant the jury were further directed that, “ In order to constitute the crime of manslaughter in the second degree, under subdivision 3 of Section 193 of the Penal Code, which is applicable to the definition of the offense charged in this indictment, the jury must find that the defendant by some act of culpable negligence £ procured the killing of the deceased.’ ”

And that “ The jury must not only find that the evidence establishes, before they can convict, the presence of mere ordinary negligence on the part of the defendant, but they must find it in such extreme degree as the use of the terms £ culpable negligence ’ import in the section of the Code referred to.”

And “If the evidence leaves the jury in doubt as to whether such a degree of negligence exists as the statute thus contemplates, they must find its presence not proven, and acquit the defendant. That is, if they entertain a fair and reasonable doubt as to the establishment of such a degree of negligence as the Code contemplates by the use of the word ‘ culpable.’ ”

That is, “If they entertain a fair and reasonable doubt as to what is meant in the Code by the use of the word £ culpable.’”

And “the jury must find beyond a reasonable doubt that the defendant by his procurement or culpable act through unlawful negligence or reckless means occasioned the death of Lewis Walters, otherwise they must render a verdict of not guilty.”

And “ If the defendant did exercise such ordinary and usual care and caution, as men generally in the performance of their business affairs are accustomed to exercise, the jury must find that the killing charged in the indictment was misadventure and not crime, and the defendant must be acquitted.”

They were further directed that “if they were of opinion that the defendant though practically unskilled as a builder, provided what he believed to be proper materials for the erection of such building, that his contracts were with persons whom he regarded as competent to perform the labor required of them, that he expended his moneys’ and devoted his time in and about such erection with the honest purpose and intention that such buildings, when completed, should be safe and suitable for the uses for which they were intended; then and in such case the jury must find that the falling of such buildings was misadventure, the act charged not a crime, and the defendant must be acquitted.”

These directions it is true were qualified by the statement that he was bound to use ordinary and proper care. But that was no more than the law required from the court. In giving these directions with those contained in the charge previously delivered, full and complete justice was done to the rights of the defendant. He was guarded in every way that could be done against the chances of an improper conviction. And the jury were restricted in their determination of the defendant’s guilt by the legal considerations strictly applicable to the case.

It has been objected to the charge that the court directed the jury to disregard the testimony of one or more witnesses, if they were found to have sworn wilfully or corruptly false. But such a direction was not given.

What the court did direct the jury to do was that if they came to the conclusion that any witness, or more than one witness, has wilfully and corruptly sworn to a state of facts which he knew to be untrue when he swore to it, they had the right to disregard the evidence of such a witness. And that was very far short of a direction intended to be, or which could have been understood to have been controlling or compulsory upon the jury. It left them to the free exercise of their own judgment, and to reject or accept the evidence of the witness as that might be found to be justifiable or prudent, under the circumstances. And that is the legal rule required to be observed in the disposition of this point. People v. Reavey, 38 Hun, 419.

There was no evidence given upon the trial from which it could be said that Walters, the deceased, had brought about or exposed himself to the disaster by any want of care or fault on his part. And no inquiry based upon such an assumption could have been submitted to the jury. Besides that the defendant could not be exonerated from guilt if this man’s death was caused by his culpable negligence, even though there may have been a want of care on his own part. That rule, as it was acted upon in Palmer v. Deering (93 N. Y., 7), is not applicable to an indictment under these provisions of the Code. But the charge will be made out according to the language employed by the legislature in the enactment of the law, when the death of the person has been produced by the inexcusable or culpable negligence of the party charged.

Great care has been devoted to the examination of the numerous exceptions and objections taken upon the trial and urged in support of the appeal. That has been regarded as a duty more than commonly obligatory, to avoid the possibility of any intervening influence causing injustice to the accused by means of public censure, excitement or condemnation. And it is believed that the effect of such influences have been wholly avoided, and that no injustice whatever has been done to the accused in the adoption of the conclusions which have been already stated. They seem to have been well warranted by what transpired upon the trial. The evidence fully sustains the conviction of the defendant, and the result is that nothing is found in the case upon which it can be impeached or set aside, but that the judgment from which the appeal is taken should be affirmed.

Macomber, J., concurs.

Brady, J.

Although as demonstrated by the opinion of Justice Daniels there were many exceptions taken upon the trial requiring consideration, that which related to the reception of some of the reports filed in the bureau of the department of buildings seemed to be the most formidable. But a thorough investigation of the whole of the testimony of Mr. D’Oench, upon whose examination it was taken, shows it to be unavailable. The prosecution was not predicated of reports of any kind eminating from any source, but upon the asserted and material fact that the appellant had constructed the buildings designated with improper materials, and, as a result, had caused the death of a human being. The answer to this charge, if established with sufficient certainty to call upon him to make one, would be that proper materials were in truth employed. This would indeed be indispensable, as we can readily understand, even if the fall of the buildings arose from some unforseen circumstance which could not be conjectured or provided against.

The prosecution proved that the law as to the quantity of sand to be used in making mortar had been violated, and violated by order of the appellant, who instructed Ms workman to use for that purpose the loam wMch was taken from the land, and the mortar, so called, made from which practically contained no sand at all, according to the evidence of Professor Chandler, wMch must be regarded as having been accepted as satisfactory and true by the jury. He made, he said, an analysis of eight samples of it, taken from the debris of the bmldmgs and at different places. It was, it may be said, a composition readily dissolved by water and washed away. Indeed, in legal contemplation it was not mortar, certainly not such as required by law. It is quite clearly established, indeed, that the buildings fell because of the use of that material, without reference to any other defect. They fell, too, it must be observed, before completion, and it would seem to be beyond dispute that, unless their destruction was due to some "unusual occurrence arising from some extraordinary circumstance which mortar properly made would not have prevented—a fact for the defense to establish but which was not done— it must have been the result of improper, unlawful construction. Here, however, two facts concurred; the mortar, so-called, was improperly, unlawfully made and useless, and the buildings fell. These facts stand prominent and cannot be overlooked or diminished in importance.

The prosecution, as suggested, did not resort to any reports on file in the department of buildings to establish the offenses charged. It was an element of the defense, and one which operated, it may be no matter what the theory of the defense was, both for and against the appellant, for him, so far as it showed his compliance with the requisitions issued in regard to the buildings, although this could have been enforced under the statute, and may not be regarded as voluntary, therefore, and against him as evidence that the construction of the buildings required constant supervision, and invoked several reports impugning their safety, of which the appellant was advised, and which should not have been necessary if the construction had been marked by the use of ah the safeguards which a proper consideration for their safety demanded; safeguards not only provided for by statute, but established as a necessity by experience and observation, and impressive and imperative as involving protection to fife. It was no answer to this charge to say: We have complied with the requisitions of the department, for the officers of the department might fail to observe some defect or omission which was inexcusable. Such was not the issue. It was whether the law had been violated and culpable negligence established by the use of improper material. The design of the law in regard to buildings was to prevent such a casualty as resulted from the appellant’s acts, and he must be held to knowledge of this law in theory and in fact, for he had been concerned in erecting numerous buildings. He cannot complain, therefore, when charged with causing the death of a human being, if he be held to a strict accountability for his abandonment of plain rales intended for his own protection as well as that of the community at large. He must take the consequences of disregarding them.

The prosecution, as already said, did not rely upon reports, but upon facts wholly independent of them, and the charge against him was to be met, if successfully, by a similar and responsive element. When the reports were resorted to, therefore, the appellant’s defense was commenced. He called for them for that purpose, and for that purpose only, and as to them the witness interrogated was, under the circumstances characterizing their development, one examined on Ms behalf. He introduced tMs new matter, asMng generally as to reports, when the judgment of the witness was invoked. He thus, to use a familiar pMase, opened the door, and could not then walk in and out with only such reports as he chose, selectmg those which were advantageous and rejecting those which might not be. He exposed his witness to a cross-examination as to this new matter, and himself to all the consequences resultmg from it. The reports excepted to were, therefore, properly admitted as a part of the cross-examination, which, from its development, had become, in part at least, an exammation-inchief on behalf of the appellant.

The gravity of the offense charged cannot well be overestimated. The construction of a building is an important undertaking, as it may involve the loss of life, and should be accomplished, even though no statute prevailed on the subject, with strict regard to its absolute safety as a structure. It should not, indeed must not, be constructed upon any other principle under any circumstances, and most especially not for gain, if such be the object in view. Human safety must not be made subservient to thrift, or the hope of greed to be attained by the exercise of a spirit of perilous economy. The statute points to the dangers of faulty construction, and is a constant warning to the builder by its requirements, with which he must -be supposed to be familiar, especially after a long experience in the erection of bmldlngs.

_ For these reasons, in addition to those fully and ably given by Justice Daniels, I concur with him in the result at wMch he has arrived.  