planation, the prosecution had the right to read them in evidence. The counsel for the defendant thinks they were not competent evidence because the signature of Paton & Co. was not proved, and because no further evidence was offered that the statements contained in said letters were true; but we think the learned counsel misconceives the principle upon which the court acted in allowing the letters to be read, and the purpose for which the letters were put in evidence. Of course, even if the signature of Paton & Co. had been proved, the letters themselves were wholly inadrissible for the purpose of showing that the bonds in question purpose of showing any other fact stated in the letters. They were worthless, or that the road had been foreclosed, or for the purpose of showing any other fact stated in the letters. They were mere hearsay, and could not have been made competent evidence for any such purpose by proof of their genuineness. They were admissible, however, for the purpose for laying a foundation for proof of what the defendant said and did when their contents were communicated to him. Counsel for the defendant argues that when the contents of the letter were communicated to the defendant, he was not called upon to make any statement, but we cannot agree to the proposition. He had obtained $7,000 from his wife with which to buy these bonds, telling her they were as good as gold. She presented a letter in which it was stated in substance that the bonds had been worthless for many years, and demanded an explanation. Surely if there ever was a case which called for an explanation this was Suppose that the wife at this interview had stated to the defendant that Paton & Co. had told her that the bonds were worthless; it would certainly have been competent in that case for the prosecution to prove that she made this statement to him, and to prove what he said in reply; or if he refused to give any explanation, or remained silent, to prove that fact. The rule applicable to such cases is laid down very clearly in Kelley et al. v. The People, 55 N. Y. 571: "Where an individual is charged with an offense, and declarations are made in his presence or one. hearing touching or affecting his guilt or innocence of an alleged crime, and he remains silent when it would be proper for him to speak, it is the province of the jury to interpret such silence, and determine whether his silence was under the circumstances excused or explained. At most, silence under such circumstances is but an implied acquiescence in the truth of the statements made by others, and thus presumptive evidence of guilt, and in some cases it may be slight, except as confirmed and corroborated by other circumstances. "But it is some evidence, and therefore, except in those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation, or in a discussion between third persons not addressed to or intended to affect the accused or induce any actian in respect to him, so that for him to speak would be a manifest intrusion into a discourse to which he was not a party, the evidence is competent and should be admitted." And, as was said in Cohu v. Husson, 113 N. Y. 662; 23 St. Rep. 504, "Silence when one ought to speak is often as significant as an express admission.” The letters themselves prove nothing as to the truth of the statements therein contained, but the silence of the defendant, and his failure to make any explanation as to the matter, is presumptive evidence that the statements contained in the letters were true, and it was for the jury to determine what construction could be placed upon what was said and done by the defendant after the letters had been shown to him by his wife, and upon his failure to make any explanation. If the contents of those letters were true, he stood in the position of having deceived and defrauded his wife, and his refusal to make any explanation was some evidence of his guilt, and it was for the jury to say what weight should be attached to it in connection with the other evidence in the case. And if the evidence of what transpired at this interview, taken in connection with such other evidence, satisfied the jury that he had defrauded his wife in regard to the New York, West Shore & Chicago bonds, they had the right to take that fact into consideration in determining the intent with which he had acted in reference to the Pullman Palace Car stock. We think the defendant had a fair trial; that none of the exceptions were well taken; that there is nothing which occurred at the trial that calls for a reversal, and that the judgment should be affirmed. BARRETT, J.-The only doubt here is as to the letters of Paton & Co. But a careful examination of the record shows that the contents of these letters were elicited by the defendant on his counsel's cross-examination of the prosecutrix. The re-direct examination followed in its regular order. It is clear therefore that the defendant himself made the inquiry which resulted in the testimony that "the next day" the witness received letters from the house of Paton & Co., that these bonds were worthless and that the witness showed the particular letter in question to the defendant. Now the letters contain nothing more than a statement that these bonds were worthless. Consequently they added nothing to what the defendant had himself placed before the jury. They simply illustrated the conversation and pointed out precisely what the defendant saw when the prosecutrix showed the letters to him. The other questions are free from doubt and I concur in the opinion for affirmance. VAN BRUNT, P. J., concurs. NOTE ON HUSBAND AND WIFE AS WITNESS AGAINST THE OTHER IN CRIMIMAL CASES. FORMER STATUTE.-Under section 2, chap. 182 of 1876, is was held that a wife could not, though willing so to do, be allowed to testify against her husband upon his trial for bigamy. People v. Houghton, 24 Hun, 501. Under same statute, it was held, in People v. Hovey, 29 Hun, 390, that either might be compelled to be a witness, if the right conferred was exercised by the other, but that one could not be compelled to testify against the other at the call of a hostile party. EFFECT OF SECTION. The common law rule that husband and wife cannot be witnesses for or against each other has been modified by section 715 of Penal Code. People v. Wood, 36 St. Rep. 966; 126 N. Y. 271. This section is aimed only at a compulsory disclosure by husband or wife. People v. Petmecky, 2 N. Y. Cr. 459. This section makes a husband and wife competent witnesses against each other, when either is on trial for a crime. People v. Lewis, 42 St. Rep. 772; 16 N. Y. Supp. 884. It merely declares that neither can be compelled to disclose a confidental communication made by one to the other during their marriage. Id. A wife is a competent witness against her husband, with the exception that she cannot be compelled to disclose any confidential communications which have passed between them during their marriage. People v. Petmecky, 2 N. Y. Cr. 452. RIGHT OF OTHER PARTY.-This section does not leave the matter entirely to the discretion of the witness, but the other party interested may object to any such communication, and upon such objection being made, the witness not only cannot be compelled, but has no right to make the disclosure. People v. Wood, 36 St. Rep. 966; 126 N. Y. 271. COMPETENT.-The wife of an accomplice who is also under indictment, is a competent witness, People v. Bosworth, 45 St. Rep. 517; 64 Hun, 82; 19 N. Y. Supp. 119. Letters written by defendant to his wife and delivered by her to the district attorney at his reqnest without objection, under the belief that she was obliged so to do, though she did not wish to deliver them, are admissible against defendant and do not come within the prohibition of this section. People v. Petmecky, 2 N. Y. Cr. 459. See People v. Wentworth, 4 N. Y. Cr. 210. Supreme Court-Cenecal Term—Second Department. July 27, 1894. PEOPLE v. JOHN Y. McKANE. (62 St. Rep. 6; 80 Hun, 322.) 1. OYER AND TERMINER-EXTRAORDINARY TERM. Appointment of “an extraordinary court of oyer and terminer" is a sufficient appointment under section 234 of the Code. 2. SAME-GRAND JURY. A grand jury may be ordered for an extraordinary term of the court of oyer and terminer, though a grand jury for the regular court of sessions has been drawn. 3. EVIDENCE-DECLARATIONS-CO-CONSPIRATORS. Acts and declarations of co-conspirators, though not parties to the record, are admissible against the defendant. 4. SAME. When justice requires it, the declarations of conspirators will be received before proof of the conspiracy. 5. SAME. On the trial for a conspiracy to commit a crime, evidence bearing on defendant's ability to form the conspiracy is admissible. 6. SAME. Evidence that defendant used his official powers for the benefit of the election officers, is relevant on the trial of an indictment for co-operation in violating the election laws. 7. SAME-BEST AND SECONDARY. Election returns are the best evidence of the facts therein stated. 8. SAME-REPUTATION. The prosecution may, where the defendant has offered evidence that his general reputation is good, show what his reputation is in regard to particular matters. 9. EVIDENCE-CHARGE. Various questions as to evidence and instructions to jury, decided George W. Roderick (Edward C. James, of counsel), for appellant. : James W. Ridgway, Dist. Atty., Benjamin F. Tracy and Edward M. Shepard, for the People. LANDON, J.-The court of oyer and terminer, at which the defendant was indicted, was held in pursuance of an appointment made by the governor. Section 234 of the Code of Civil Procedure provides that "the governor may, when, in his opinion, the public interest so requires, appoint one or more extraordinary general or special terms of the supreme court, or terms of a circuit court, or court of oyer and terminer.". The language of the governor's appointment is: "I do hereby appoint an extraordinary court of oyer and terminer to be held," etc. The counsel for the appellant urges that the power to appoint an extraordinary term of the court of oyer and terminer is not complied with by appointing an extraordinary court of oyer and terminer, and that no power exists to appoint such extraordinary court, and hence that VOL. IX-45 |