The People of the State of New York, Respondent, v. James Van Tassel, Appellant

The People of the State of New York, Respondent, v. James Van Tassel, Appellant. 1. Crime — Trial for Subornation of Perjury — Testimony of Self-confessed Perjurer — Appeal. A conviction of subornation of perjury, affirmed by the Appellate Division, does not call for a reversal by the Court of Appeals, on the ground that the testimony of the person alleged to have been suborned, and who had confessed his perjury, should have been wholly disregarded, where it is doubtful if the point was properly raised, and the trial judge of his own motion charged the jury that the witness was a self-confessed perjurer, and that they might give his testimony such credit as they found it deserved, and that they could be aided by the surrounding circumstances of corroboration. 2. Offenders with Common Purpose — Declarations as Evidence. Where there is sufficient evidence to justify the conclusion that different persons charged with a crime were acting with a common purpose and design, although it does not appear there has been a previous combination or confederacy to commit the particular offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the others. 3. Proof of Confederacy. A conspiracy may be proved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances and their general connection or otherwise, be satisfactorily shown tobe confederatorsin the commission of the offense. 4. Evidence of Another Crime. Evidence of other transactions, otherwise material or relevant, is not inadmissible merely because it tends to prove another crime. 5. Witness — Cross-examination for Purpose of Impeachment. The evidence which may be elicited by cross-examination as a basis for the impeachment of the witness must be material or must relate to a fact brought out by adverse counsel. People v. Van Tassel, 26 App. Div. 445, affirmed. (Submitted June 22, 1898; decided October 4, 1898.) Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 16, 1898, affirming a judgment of the County Court of Dutchess county convicting defendant of the crime of subornation of perjury. The facts, so far as material, are stated in the opinion. Wm. H. Wood for appellant. George Roehlre stood confessed as a willful, deliberate perjurer, and his testimony was to be wholly disregarded. (People v. Evans, 40 N. Y. 1; People v. Sharp, 107 N. Y. 432.) There was no evidence tending to show a conspiracy. No evidence can be given merely for the purpose of establishing a tendency on the part of the accused to the commission of a similar offense. (People v. Corbin, 56 N. Y. 363; Coleman v. People, 55 N. Y. 81; People v. Sharp, 107 N. Y. 428; People v. McLaughlin, 150 N. Y. 366; People v. Gibbs, 93 N. Y. 470; People v. O'Sullivan, 104 N. Y. 481.) It was error to admit testimony as to separate subornations by the defendant not named iti the indictment and it was incompetent to show motive. (Pierson v. People, 79 N. Y. 424; Weed v. People, 56 N. Y. 628; Mayer v. People, 80 N. Y. 364; People v. McLaughlin, 150 N. Y. 366; People v. Sharp, 107 N. Y. 429.) The court erred in allowing the testimony as to conversations and requests made by Jacob Rieck to testify falsely for Van Tassel in the defendant’s absence, which said evidence was incompetent to show motive. (Ormsby v. People, 53 N. Y. 472; People v. Pavlik, 20 N. Y. S. R. 187; People v. McQuade, 110 N. Y. 307; People v. McKane, 143 N. Y. 455; People v. McLaughlin, 150 N. Y. 366; People v. Sharp, 107 N. Y. 430.) It was error to admit the testimony of Otto Faust. (People v. Sharp, 107 N. Y. 427; People v. McQuade, 110 N. Y. 307; People v. McLaughlin, 150 N. Y. 366.) It was error not to allow, on cross-examination, the defendant to state the conversation, if any, that he had with Louis Hire and Mrs. Hire. (People v. Sharp, 107 N. Y. 427.) George Wood for respondent. Evidence showing the acts and declarations of Rieck in the absence of the defendant Van Tassel was admissible. (People v. Bassford, 3 N. Y. Crim. Rep. 220; People v. Murphy, 3 N. Y. Crim. Rep. 338; Adams v. People, 9 Hun, 89.) Where there is sufficient evidence to justify the conclusion that different persons charged with crime were all acting with a common purpose and design, although it does not appear there had been a previous combination or federacy to commit the principal offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the other. (Kelly v. People, 55 N. Y. 566; People v. McKane, 143 N. Y. 455; Peojole v. Peckens, 153 N. Y. 576; People v. McLaughlin, 150 N. Y. 386; People v. Harris, 136 N. Y. 423; Mayer v. People, 80 N. Y. 364.) A party who cross-examines a witness as to a collateral matter is concluded by his answers. He cannot draw out collateral statements from the witness, and for the purpose of discrediting him show that on some other occasion he stated differently. (Carpenter v. Ward, 30 N. Y. 243; 3 Rice on Grim. Ev. 41; Plato v. Reynolds, 27 N. Y. 586; Baptist Church v. B. Fire Ins. Co., 28 N. Y. 153; Chapman v. Brooks, 31 N. Y. 75; Stokes v. People, 53 N. Y. 164; Schultz v. Third Ave. R. R. Co., 89 N. Y. 248.) [MAJORITY — Bartlett, J.] Bartlett, J. In 1895 the defendant brought an action to recover damages for personal injuries which he claimed to have sustained by falling into an excavation in Main street in the city of Poughkeepsie. The trial resulted in a verdict for the city. The defendant was unable to produce any witnesses in that action who saw the alleged accident. He afterwards brought an action against Adriance <fc Son, the contractors who had charge of the work in Main street, and upon that trial he produced two witnesses, Eoehle and Hannigan, who swore that they helped lift him out of the excavation into which he had fallen. The jury found for the defendants. As the circumstances attending this trial were suspicious, investigation was had and this defendant and Jacob Eieck were arrested on a charge of subornation of perjury in procuring one Eoehle to swear falsely. The latter was arrested on a charge of perjury, but he turned state’s evidence and was not prosecuted. The defendant and Eieck elected to be tried separately, were convicted and are now serving sentences in state’s prison. The Appellate Division of the second department in affirming this conviction held the evidence abundantly sufficient to warrant the verdict which was rendered, and confined its investigations to legal errors alleged to have been committed upon the trial. A perusal of the record discloses a sharp conflict in the evidence ; the questions of fact were for the jury, and the verdict is final unless reversible error is found. The first point, made by the appellant is that, as Roelile stood confessed as a willful deliberate perjurer, his testimony was to be wholly disregarded. While it is doubtful whether this point is properly raised, yet it appears the trial judge, of his own motion, said to the jury that this witness was a self-confessed perjurer, and that they might give his testimony such credit as they found it deserved, and they could be aided by the surrounding circumstances of corroboration. There was no exception to this portion of the charge, and the defendant has no reason to complain of these instructions to the jury. It is next insisted that it was error to permit the People to show that, during the period when defendant is alleged to have been searching for witnesses, he and his agent made the effort to induce others to swéar falsely, than those who subsequently took the stand. Also, that it was error to admit evidence of various transactions and declarations within the same period of time when defendant was not present. It is well settled that where there is sufficient evidence to justify the conclusion that different persons charged with a crime were acting with a common purpose and design, although it does not appear there has been a previous combination or confederacy to commit the particular offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the others. A conspiracy may be ¡Droved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be confederators in the commission of the offense. (Kelley v. People, 55 N. Y. 565; People v. Bassford, 3 N. Y. Crim. R. 219; People v. Murphy, 3 N. Y. Crim. R. 338; Adams v. People, 9 Hun, 89; People v. McKane, 143 N. Y. 455; People v. Peekens, 153 N. Y. 576.) Evidence of other transactions, otherwise material or relevant, is not inadmissible merely because it tends to prove another crime. (People v. Peckens, 153 N. Y. 576; Mayer v. People, 80 N. Y. 376; People v. Greenwall, 108 N. Y. 296; People v. Shea, 147 N. Y. 79; People v. McKane, 143 N. Y. 455; People v. Murphy, 135 N. Y. 450; Hope v. People, 83 N. Y. 418.) On cross-examination of some of the People’s witnesses defendant’s counsel sought to examine them in relation to collateral matters, evidently as a basis for impeachment, but the evidence was objected to and excluded. Such evidence must be material or relate to a fact brought out by adverse counsel. (Carpenter v. Ward, 30 N. Y. 243; Plato v. Reynolds, 27 N. Y. 586; Stokes v. People, 53 N. Y. 164.) There are several other points involving the order of proof and the admission and rejection of evidence which we will not refer to at length; they have been carefully considered and present no error. The judgment appealed from should be affirmed. All concur. Judgment affirmed.