have heretofore suggested, and I am not able to form an opinion from them that "there is reasonable doubt whether the judgment should stand;" there is not sufficient evidence before me to form any opinion upon the merits of the case, or to enable me to determine whether any of the alleged errors may have prejudiced the defendant, and for that reason I must decline to grant the certificate asked for.

Note on Certificate for Stay in Criminal Cases.

STAY.-There is no authority to grant a stay of proceedings after conviction of a capital offense except on appeal from the judgment. Moett v. People, 14 W. Dig., 125.

CERTIFICATE.-Every convicted person has an absolute right to appeal. People v. Sharp, 9 St. Rep. 157.

For this purpose he needs no certificate or consent, but his appeal will not stay the execution of his sentence, except in the case of a sentence of death, unless he obtains a certificate of a justice of the supreme court. Id.

The certificate, mentioned in section 527 of the Code of Criminal Procedure, can, in a proper case, be given in any case in which an appeal can be taken. People v. Bork, 1 N. Y. Cr.. 395.

Under the above mentioned section, a certificate of a supreme court justice that, in his opinion, there is reasonable doubt whether the judgment should stand, is essential to a stay. People v. Sharp, 9 St. Rep. 157.

The justice, to whom such application is made, is called upon to review the entire evidence, the charge of the trial court and the law of the whole case, so as to form an opinion whether the judgment should stand. Id.

To entitle the defendant to a certificate staying proceedings pending an appeal, it is not necessary that the justice, to whom the application is made, shall arrive at the positive conclusion that the trial court has erred; it is enough if he has reasonable doubt as to the correctness of the law laid down by the court. People v. Emerson, 20 St. Rep. 15; 6 N. Y. Cr., 157; 5 N. Y. Supp., 374. But the justice ought not to interfere and interpose a stay, if only a remote doubt exists in regard to the admission of some unimportant piece of evidence.

Id.

Under such section, the law does not cast upon the judge, to whom the application is made, the duty of concluding or deciding whether error was committed upon the trial, in order to determine whether the stay applied for should be granted. People v. Stephenson, 66 St. Rep. 567; 32 Supp. 1112. If any assigned error, sufficient, if well founded, to reverse the judgment, gives rise to a reasonable doubt, the law makes it his duty to inquire no further, but to stay the execution of the judgment until the question is settled upon appeal. Id.

Upon an application for a certificate under said section, it is not necessary to reach a conclusion as to whether the judgment would be affirmed or

reversed upon a full consideration of the case and the bill of exceptions People v. Wentworth, 3 N. Y. Cr., 113.

The pertinent inquiry is, was there anything done on the trial which raises a reasonable doubt whether the judgment should stand? Id.

A doubt whether a ruling of the court upon the trial was sufficiently broad to take from the jury the consideration of clearly incompetent evidence, constitutes such reasonable doubt as to whether the judgment should stand as to authorize a stay of the execution of the judgment. Id.

FILING.-If the certificate, specified in section 527 of the Criminal Code is given, it may be filed with the notice of appeal. Id.

APPLICATION FOR CERTIFICATE.-Though it is not in terms provided in this section 527, or in section 529, of the Criminal Code, that an application to one judge only shall be made for a certificate, these sections do not in terms authorize applications to be made to several and successive judges. People v. McKane, 59 St. Rep. 302; 7 Misc. 371; 28 Supp. 175.

A defendant, under conviction for a felony, is not entitled to submit an application for a certificate, mentioned in this section, until such notice as the judge may prescribe has been given, to the district attorney of the county where the conviction was had, of the application for the certificate. Id.

Supreme Court-General Term-Third Department.

December, 1893.

PEOPLE v. ALLEN BARBER

(56 St. Rep. 304; 74 Hun, 368.)

CRIMINAL LAW-ARREST.

Where a person is committing an offense under section 448 of the Penal Code, in the presence of a constable, the latter has authority to arrest him for such offense without a warrant.

Appeal from a judgment of the court of sessions adjudging defendant guilty of assault in the second degree.

R. M. Moore, for appellant.

Fred'k G. Paddock, for respondent.

HERRICK, J.-It seems to me that the indictment sufficiently sets forth an offense under section 218 of the Penal Code.

The evidence shows that the defendant was committing an offense under section 448 of the Penal Code. The person who made the arrest, and whom the defendant assaulted was a constable, and the defendant's offense was committed in his pres

ence.

Under section 177 of the Code of Criminal Procedure, a constable had authority to arrest him for such an offense without

a warrant.

The judgment should, therefore, be affirmed. I see no occasion for an opinion.

1. CRIMINAL LAW-PENDENCY OF CIVIL ACTION.

The rule as to, the postponement of the trial of a criminal action till the determination of a pending civil suit involving the same subject is one of convenience and propriety, addressed to the sound discretion of the court, and the attention of the court should be called to the matter before entering upon the trial and an application made to postpone on that ground.

2. STATUTE-EX POST FACTO LAW.

A statute, which permits the infliction of a less degree of the same kind of punishment than was permissible when the offense was committed, is not an ex post facto law.

3. EVIDENCE-CONFIDENTIAL COMMUNICATIONS.

When a husband or wife, to whom a confidential communication is addressed, makes it public by giving it to another, it may be put in evidence, if otherwise admissible.

4. APPEAL-CHARGE.

A charge that there is no presumption to be taken against the defendant because he does not go on the witness stand; that he has the right to say to the prosecution, “It is my judgment that the situation is such that I am not bound to take the witness stand, and the law gives me that right," is no error.

5. EVIDENCE-STIPULATION.

Where, under a stipulation that all the testimony of a witness upon a former trial should be read as evidence, subject to all legal objections, the defendant's counsel refused to read a portion of the direct examination, the opposing attorney may require it to be read.

6. TRIAL-ARREST OF WITNESS.

The trial court has power, and it is within its discretion, to commit one of defendant's witnesses to jail, in the presence of the jury, by reason of the character of his testimony.

Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made June 30, 1893, which affirmed a judgment of the court of general sessions of the peace in and for the city and county of New York entered upon a verdict convicting the defendant of the crime of perjury.

The facts, so far as material, are stated in the opinion.

David B. Hill, for the appellant.

Henry B. B. Stapler, for the respondent.

PECKHAM, J.-In January, 1891, there was pending in the supreme court of this state an action brought by one Annie M. Keating against the above defendant. The action was brought to recover on a promissory note alleged to have been made by defendant, dated New York, October 27, 1887, and payable to the order of Annie M. Keating two years after the date thereof, for some two thousand dollars, with interest at six per cent. Judgment by default was entered January 31, 1891, against the defendant in Monroe county for the full amount of the note. A motion was subsequently, and in April, 1891, made on the part of the defendant to open that default, and for the purpose of that motion the defendant in New York county swore to an affidavit that he never owed Annie M. Keating a dollar in his life; that he had never given to her a promissory note, and that he had never seen the note upon which the action was brought, and knew nothing whatever about it; that at the time the note bore date the defendant was in Florida and

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remained there the whole winter, and that he went there the first of September, 1887, and did not return until May, 1888. The default was opened, and an answer was thereupon interposed setting up substantially the facts as contained in the affidavit. The action is still pending, never having been brought

tɔ trial.

In January, 1892, the defendant was indicted by the grand jury of the county of New York for perjury in swearing to the affidavit, the indictment averring that the allegations of fact set forth in the affidavit and above mentioned were false to the knowledge of the defendant, and that in swearing to them the defendant had committed willful and corrupt perjury.

In February, 1893, the defendant was placed on trial for the offense in the court of general sessions of New York. He had previously been tried at the same term upon the same indictment, and the jury had disagreed.

Upon the second trial the defendant was convicted and sen tenced to imprisonment in the state prison for eight years, and he is now undergoing such imprisonment, a stay of proceedings after the conviction having been refused. From an affirmance of the judgment by the general term the defendant has appealed here.

The counsel for the defendant has argued several grounds for a new trial, some of which will be now referred to.

(1) It is claimed on behalf of the defendant that when it appeared, as it did in the course of the trial, that the civil suit brought by Annie M. Keating against him had not yet been tried and determined upon its merits, the court should have deferred the trial upon its own motion until the determination of that action. It is conceded that no motion was made to postpone the trial of the indictment until after the determination of the civil action. The record does show that the counsel for the defendant, in the course of the trial of the indictment, and after a large amount of evidence had been given, made the objection that no indictment for perjury could stand while the action in which it is alleged it was committed is still undetermined, and that the court had no jurisdiction to proceed with the trial of