of education, of previous good character, and had had considerable experience in the world. They came together as employés in the factory of defendant's uncle in the city of Cortland, N. Y., and this common employment led to acquaintance and intimacy, and finally to the seduction, and three or four months before her death to the pregnancy, of the deceased by the defendant. The defendant largely screened this association from observation, and in public sought the society of young ladies belonging to what would be regarded as a more pretentious social grade than that to which decedent belonged. In the latter part of June, evidently by prearrangement, and with the expectation that the defendant soon would join her, the deceased left the factory and went to her father's home not far from Cortland. While there several letters passed from her to him and two or three from him to her. The great body of the former is filled with expressions of affection for defendant, with pathetic references to her physical and still greater mental distress caused by her condition, with references to their coming trip and what manifestly were preparations for marriage, with entreaties that the defendant would soon come to her, complaints at his lack of affection and consideration and his pursuit of pleasure elsewhere, and his failure to write to her more frequently, and doubts whether he would come as he had promised, followed by expressions of contrite sorrow for her distrust of him, and finally with very significant statements that if he did not come to her she would return to him at Cortland.

Finally, on the evening of July 8th, the defendant went to a neighboring railroad station, where the next morning he was joined by the deceased; thence they journeyed to Utica, where they stayed that night; thence the next morning to Tupper lake in the Adirondacks, where they stayed that night, the next morning retracing their course to Big Moose lake, and thus reaching the spot where was to be enacted the closing scene of their unhappy association. This journey must have been planned with the theory, genuine, of course, on the part of the woman, that it would lead to marriage. It could have presented no other reasonable or lawful purpose. The time had passed when desire would prompt such a trip as the cover or opportunity for mere illicit enjoyment. A condition existed which only could be relieved in a legitimate way by marriage, and the defendant has testified that at that time he loved the deceased and intended to marry her. Yet every significant step taken by him seems to have led away from this consummation. At all times when he was in the neighborhood or presence of those who knew him he concealed his companionship with the deceased, and at Utica and Tupper lake where he stayed with her as his wife he registered both under assumed names and from fictitious res

idences, and the final registry made at Big Moose lake, which gave correctly the name and residence of the deceased, still utilized a false name and place of residence for himself. And while he was thus carefully suppressing the facts of identity and companionship he was arranging through social engagements with young lady acquaintances and otherwise to be present a few days later at certain pleasure resorts, publicly and undisguised. From these circumstances the people argue with much force that at the time when defendant started out on the journey he did not intend to marry the deceased; that he did not purpose during the latter days of the week openly to acknowledge a relationship which he was so carefully concealing during the first days; and that therefore already he must have planned to rid himself of its embarrassments. At least it is manifest that during those days when they journeyed back and forth he was unready and unwilling to solve their difficulties by the lawful remedy of marriage.

Shortly after arrival at Big Moose the defendant engaged a row boat and alone with the decedent started out on the lake. Some of the incidents which attended the setting out on this trip are treated as of great importance by the district attorney, and we think properly so. While an article of decedent's wearing apparel was left in a conspicuous place in the hotel from which they started, defendant gathered up and took with him all of his property, including an umbrella, an overcoat, and a heavy suit case, upon which he carried a tennis racket, which became an article of much importance on the trial. We do not think that the evidence fairly establishes any legitimate explanation for this latter conduct, and we are forced to the conclusion urged by the people that the defendant was then planning such a termination of the boat ride that he would not desire to return to the hotel and therefore was taking with him all of his possessions. The two people were seen on the lake at various times during the afternoon, and finally towards its close were observed going toward a secluded portion of the lake where subsequently the tragedy occurred, the defendant rowing and the decedent sitting in the stern of the boat, and soon after and at about the time when death was happening, and from the direction where it was happening, a sound was heard which was described as a woman's scream. After the death the defendant went on shore, and, taking his possessions with him, struck through the woods to a road with which it is claimed he had become familiar, and journeyed on foot and by steamboat to another resort of the Adirondacks near that at which as before stated he had planned to be the last of the week. As he went he carefully hid his tennis racket in the woods. He became a guest of the hotel under his own name, and there and in that neighborhood spent the fol

Of the facts thus far stated most are undisputed and all are established in our judgment beyond any reasonable doubt whatever. And now with the light which they shed upon it we will revert to the crucial question. What was the cause of Grace Brown's death? and that leads us to an examination of the condition of her body as it was disclosed by the autopsy performed July 14th by five physicians who were sworn as witnesses. According to their testimony there were found on her head and face many marks of violence, especially there being evidence of a blow near the left eye sufficient to cause blindness, and of a blow on the side of the head three inches above the ear of sufficient severity to cause unconsciousness, even if not more serious consequences; and it is the theory of the prosecution that these wounds were inflicted by the defendant in the boat with the tennis racket and thereafter the body thrown into the water. The accuracy and completeness of this autopsy, and the candor and truthfulness of these doctors, were assailed with unflinching vigor and with much ability on the trial by the learned counsel for the defendant. He sought to minimize the evidence of violence, and to make the witnesses admit that there were present all of the prominent signs of drowning, thus combating the people's theory, and sustaining the defendant's theory of suicide. We think that he failed of success. It may be admitted that at times on cross-examination the answers of witnesses were unsatisfactory, and that in the form in which questions were put they were compelled to admit the presence of signs incident to drowning; this latter evidence many times, when occasion offered, being modified to the effect that such signs as were actually found in this body might result from death in other ways or from the embalming which had been performed. But, aside from this, through the examination of these witnesses as an entirety there runs constant, consistent, and convincing evidence that the decedent bore upon her head the marks of violent blows. In the statement compiled from the notes of the autopsy within 16 days after the death and before witnesses, even if they were willing, could intelligently prepare for this trial, we find this concluding statement: "From the findings of the autopsy the cause of death was primarily concussion, followed by syncope and then asphyxiation." This testimony to the presence of marks of violence is no expression of opinion or theory. It deals with actual, visible conditions. The witnesses either saw what they describe, or else with wholesale and wicked perjury they are

attempting to sacrifice a human life by pretending to describe that which they did not see. We cannot adopt the latter view, and when we reject it and reach the conclusion that the body bore proof of external wounds, we are led directly and irresistibly to the next conclusion as to the authorship of those wounds. No reasonable theory sustains the possibility of their infliction after death, and no reasonable theory accounts for their infliction before death, save by the hand of the defendant. And again, when we reach this second conclusion, we are necessarily driven to the third and last one. If in those final moments, whose events were seen by no living eye save that of the defendant himself, he was beating the head of Grace Brown, there is no room for conjecture about the quality and intent of his acts, and it becomes a matter of small consequence whether he thus wounded her to insensibility or worse, or whether he flung ber still partly conscious into the water, there for a brief period to maintain a feeble struggle for life and thus produce those signs of drowning whose presence is so earnestly asserted by counsel.

Thus far we have tested the people's case almost entirely by the weight of their own evidence. But, limited as we are to a choice between two theories of the decedent's death, the one advanced by the people is strengthened in our minds, if that were necessary, by the improbability and apparent untruthfulness of the one offered by the defendant, and to a consideration of which we now turn. He testifies that shortly before her death he and the decedent commenced a discussion of their situation, and after awhile he said, in substance, that he would communicate it to her parents; that they could not keep on as they were, and that thereupon she stated, “Well, I will end it here," and jumped into the lake; that after some ineffectual efforts to rescue her, and without any cry for help, he went on shore and gathering up his property, and without informing any of the cottagers or hotel guests on the lake of the accident he proceeded to Eagle Bay and Arrowhead, as already stated, where he spent two days in various amusements, still giving no information of what had happened. So that by this evidence, offered by the defendant himself as the only innocent explanation of what transpired, we see him emerging from this catastrophe where he had made no outery for help, and with apparent composure turning in other directions and to other pursuits while he left the body of the woman, whom he says he loved better than any one else and intended to marry, lying unrecovered and unsought at the bottom of the lake.

And when we have passed beyond the impressive unnaturalness of some of the principal features of this account, we encounter much evidence which still further impeaches its truthfulness. According to the people's witnesses there were several, and by the admission of the defendant himself some, state

ments with reference to the tragedy made by him after his apprehension widely at variance with his present testimony. There was no satisfactory explanation of the dry condition of the suit case which he had taken in the boat, or of the condition of his clothes, or of the completely overturned boat, with the decedent's cape lying on top of it. And in addition to these inherent deficiencies and improbabilities of his evidence there are repeated contradictions by a large number of witnesses who apparently had no interest in telling anything but the truth.

While incomplete in respect to minor details, this summary of the evidence is sufficient for the purposes of this opinion, and as a basis for the statement of our convictions with respect to the merits of the prosecution. We are mindful at every step that this is a case of circumstantial evidence, and that the only eyewitness denies that death was the result of crime. But in obedience to the most exacting requirements of that manner of proof, the counsel for the people, with very unusual thoroughness and ability, has investigated and presented evidence of a great number of circumstances for the purpose of truly solving the question of the defendant's guilt or innocence. We might think that the proof of some of these facts, standing by themselves, was subject to doubt by reason of unsatisfactory or contradictory evidence, and that other occurrences might be so explained or interpreted as to be reconcilable with innocence. But all taken together and considered as a connected whole, they make such convincing proof of guilt that we are not able to escape from its force by any justifiable process of reasoning, and we are compelled to say that not only is the verdict not opposed to the weight of evidence and to the proper inferences to be drawn from it, but that it is abundantly justified thereby.

But it is earnestly urged that material errors were committed in respect to, and upon, the trial, whereby substantial rights of the accused were so prejudiced that for this reason he should be granted another opportunity to establish his innocence, and we take up the consideration of these arguments. At the very threshold of the trial the defendant challenged the legality of the term at which he was being tried, and which was an extraordinary term convened by the Governor for the purposes of this particular trial. It is insisted that under the provisions of section 2, art. 6, of the Constitution, the exclusive power was conferred upon the Appellate Division of appointing terms of the Supreme Court, and that the power conferred by section 234 of the Code of Civil Procedure upon the Governor to convene extraordinary terms has been impliedly repealed. We think that this question indirectly and directly has been decided adversely to appellant's contention, and we have no disposition to disagree with the conclusion sustained and reached in People v. Young, 18 App. Div. 162, 45 N. Y. Supp.

772, and People v. Shea, 147 N. Y. 78, 41 N. E. 505, that the constitutional provisions cited relate to ordinary and usual terms of court, and do not in any manner conflict with the power reposed in the Governor to call extraordinary terms.

Some of the exceptions, such as those relating to the photograph of the deceased used upon the trial, the identity of the hair found at the bottom of the boat, and the evidence of the hearing of that which sounded like a woman's scream at about the time and from the direction of the locality where the decedent's death occurred, do not require' detailed consideration, for in our opinion the evidence received was competent, and simply presented the ordinary questions of weight and credibility.

No error was committed by the production in court of the fetus taken from decedent's body at the time of the autopsy. We are not prepared to say that it would have been error if this had been produced and put in evidence in the ordinary way. It was a very material part of the people's case to establish that the deceased was pregnant, and up to the time the evidence in question was produced there had been no act or admission upon the part of the defendant which relieved them from establishing this fact by any competent evidence, and it very well might be said that the fetus itself would be perfectly proper testimony upon this point. But it is not necessary to go to this extent in order to meet the criticisms of the appellant, for this exhibit was carefully covered up and fully kept from the view of the jury. It, therefore, not only established no fact which was not in the end fully admitted in behalf of defendant, but it could not by any possibility have served to inflame the feelings of the jury to his prejudice.

The only question of evidence which in our judgment is at all debatable is that which arises in connection with the admission in evidence of decedent's letters to the defendant. In addition to those written in June, and to which already reference has been made, two others written by her to defendant and one written by defendant to her during the month of April preceding the homicide were admitted in evidence and are criticised. So far as these earlier letters are concerned, they constitute a well-proportioned correspondence between the parties, those of the decedent largely being taken up with girlish gossip and with expressions of endearment and affection for the defendant, which were not harmful to him. The only material passages are those in her first letter calling for his companionship and somewhat reproaching him for his willingness to have her absent, and the significant reply in his that it would be better to discontinue his attentions.

The only possible complication in connection with the admission of these letters arises from the restriction placed by the learned trial justice upon the purpose for which they might be admitted. Of course, it was entirely cor

rect to rule that they should not be received as evidence of the facts therein stated; but the further ruling that they should be admitted "only for the purpose of showing how the decedent regarded her relations with the defendant," made in a spirit of commendable caution, placed a limitation on their use which was too narrow and somewhat difficult to interpret. Independent of the competency secured for decedent's letters by reason of the fact that they were part of a correspondence which included letters from defendant also introduced in evidence, her letters were perfectly proper evidence upon the subject of motive. They forced upon his mind, after he had proposed a termination of their intimacy, a vivid realization of the fact that the decedent, distressed in body and agonized in mind as the result of his acts, was clinging to him and was looking to marriage as the only solution of her difficulties, and that, while pleading that he should come to her, she was intimating at the same time in no uncertain terms that if he did not keep faith and come to her she would come to him to accomplish this. They must have suggested with irresistible force that he had arrived at a point where, unless he was willing to publicly acknowledge his relations with the decedent as he never had done, and permanently cement them by marriage, he must escape by another way leading in a different direction, and, as the people say, to the tragedy at Big Moose lake.

Both counsel by their reference to and use of these letters, without available objection made at the time, perhaps placed a practical construction on the ruling of the court which broadened the natural meaning of the language used and materially enlarged the purposes for which the letters might be considered by the jury under the ruling. In addition to this, the district attorney, by his cross-examination of the defendant with reference to these same letters, legitimately brought into the record a large part of the contents thereof free from the restrictions originally imposed by the trial judge. But notwithstanding all this, it possibly may be true that these letters obtained a wider significance in the minds of the jury than that which was authorized by the trial judge, and the question is whether for this reason we should reverse the judgment.

Aside from the permitted purpose of showing the relations and thoughts of the decedent towards the defendant, we can think of no effect which they would have been apt to have with the jury, so far as the latter could be controlled by any ruling of the court, except to tend to establish a motive for the commission by defendant of the crime which is charged against him. But, as we have seen, they might have been admitted with entire propriety for this very purpose, and therefore, if the jury considered them upon that branch of the people's case, it did no more than the court should have authorized and directed them to do. Should we, therefore, reverse

this judgment because the jury may have considered evidence for a purpose not permitted by the court on the trial, but which should have been permitted and for which purpose under our opinion the court would permit it to be used on a new trial, if we should grant one? We think not. We are commanded by the statute to give judgment "without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties," and we should depart from the letter and spirit of these controlling instructions if we did so reverse. It is true that scattered here and there through the letters are expressions which are not very pertinent. But in the main these relate to little details of the decedent's life, and we think could not have been a source of material harm to the defendant. Furthermore we are inclined to think that, when counsel had made objection to the letters as a whole as incompetent and inadmissible, the obligation fairly rested upon him to specify any scattered sentences which he deemed inadmissible for special reasons.

In the submission of the case to the jury we do not find that any errors were committed in the very careful and impartial charge of the court, and so far as the later stages of the trial are concerned we shall limit our discussion to a review of the complaints made against the methods of the district attorney in summing up, it being claimed that he made statements and comments which were not justified by the record and which tended greatly to excite the minds of the jury and prejudice the defendant. It doubtless is true that the district attorney as well as his adversary did say some things which rested upon no sufficient basis of evidence. Many of his statements, however, which are now criticised, come within the fair limits of inferences from and arguments on the testimony. We think that at least one statement in regard to the alleged comments of defendant's counsel upon the decedent must have been the result of a mistake and inadvertence, or else, as now claimed by the district attorney, based on something not appearing in the record. While, of course, it is objectionable that counsel in summing up should travel beyond correct limits, we realize that human nature has limitations, and that it is difficult for counsel, who for weeks have been engaged in such a struggle as was this case, tending to arouse to the uttermost degree their zeal and anxiety, at all times to avoid transgression. Neither side was entirely free from it here. But, upon objection, the district attorney immediately withdrew, and the trial judge explicitly and clearly instructed the jury to disregard any unwarranted statements, and we do not believe that they produced any substantial or lasting effect upon the jury outside of and in addition to that caused by the evidence itself.

In conclusion, we think that no error was committed which substantially impaired defendant's rights. We believe that the adverse verdict was not the result of any of those

occurrences which are criticised by his counsel and which we could possibly say might better be modified or omitted on another trial. But rather we think that it was based on the substantial features and essential character of the case which was fairly established against him, and that so long as the conduct of an accused is to be tested in such an investigation as this, by the intentions and purposes which ordinarily prompt human acts, and by the consequences which ordinarily follow them, no other result reasonably could have been expected in this case than that which has overtaken the defendant.

The judgment of conviction should be affirmed.

CULLEN, C. J., and GRAY, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur.

Judgment of conviction affirmed.

(191 N. Y. 201)

MUIR v. GREENE et al. (Court of Appeals of New York. Feb. 18, 1908.)

1. APPEAL-REVIEW-DECISIONS OF INTERMEDIATE COURTS-QUESTIONS OF FACT.

Where the modification of a judgment by the Appellate Division was merely as to an independent item, and the judgment was otherwise affirmed unanimously, the affirmance is conclusive on all other questions of fact on a further appeal to the Court of Appeals. 2. PAYMENT

MENT.

REQUISITES -TIME FOR PAY

Defendants, husband and wife, executed a bond to plaintiff secured by a mortgage of the wife's separate property, which bond recited that in consideration of extension of time for the payment of a debt owed by the husband to plaintiff, and the advancement of further sums not to exceed a certain amount in all, the wife agreed to become jointly bound for the debt and future advancements, both payable on demand. No demand was made for over three years. Held, that there was an extension of time for payment, although the debt was payable on demand, sufficient as a consideration for the bond.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Robert Muir against Harriette T. H. Greene and another. From a judgment of the Appellate Division (115 App. Div. 173, 100 N. Y. Supp. 722), modifying and affirming a judgment of the Special Term, defendants appeal. Affirmed.

Thaddeus D. Kenneson, for appellants. Béla D. Eisler and Robert Goeller, for respondent.

HAIGHT, J. This action was brought to foreclose a mortgage executed by the defendant Harriette T. H. Greene to the plaintiff's assignor, Joseph D. Brockway.

On the 29th day of July, 1901, Robert M. Greene, the husband of the defendant Harriette T. H. Greene, was indebted to Joseph D. Brockway in the sum of $2,851.18. Thereupon they joined in executing a bond to

Brockway, in which they recited the following: "Whereas, Robert M. Greene, one of the parties above named, is indebted to the said Joseph D. Brockway, the obliged herein, in the sum of two thousand eight hundred and fifty-one and 18/100, which is now due, and the said Harriette T. Greene having requested the said Joseph D. Brockway to extend the time of payment of said sum and to advance to both of said obligors further sums of money not, however, to exceed the additional sum of six hundred dollars, and in consideration of the forbearance on the part of said Joseph D. Brockway, granted to said Robert M. Greene, and the advancement of such further sums as are herein provided, the said Harriette T. Greene has bound herself and assumed and agreed to be bound jointly and severally, with the said Robert M. Greene, to be liable for and with the said Robert M. Greene, jointly or individually to pay the said indebtedness of Robert M. Greene aforesaid, together with said sums that shall hereafter be advanced not exceeding, however, the additional sum of six hundred dollars," etc. The bond was in the usual form, containing the condition that the sum of $2,851.18, with interest, should be paid upon demand, together with such further sums as shall hereafter be advanced by Brockway, with interest. At the same time Mrs. Greene executed the mortgage in question to secure the payments provided for in the bond. Subsequently there was a loan of $50 made by Brockway to Mrs. Greene, which was included in the judgment awarded to the plaintiff. This item, however, was struck out by the modified judgment, and no appeal has been taken from such modification. There was no further sum advanced by Brockway to Robert M. Greene or the defendant Harriette, his wife.

The trial court found as a fact "that at the time of the execution and delivery of the said bond and mortgage the said Joseph D. Brockway agreed not to demand payment of the said sum of $2,851.18 from the said Robert M. Greene, or the said defendant Harriette T. H. Greene until after the expiration of two or three months from said date." The trial court also found that the said sum of

$2,851.18 had not been paid, nor any part thereof, and that on the 31st day of December, 1904, the plaintiff duly demanded the payment. And as conclusion of law the court found that the plaintiff was entitled to judgment for that amount, with interest, and that the mortgage be foreclosed and the premises sold for the payment thereof.

Inasmuch as the modification was with reference to an independent item of $50, the unanimous affirmance of the Appellate Division has settled all the other questions of fact involved in the litigation. It is now contended on behalf of the appellant that, the Appellate Division having disallowed the item of $50 advanced to Mrs. Greene, there was no consideration for her bond and mortgage;