affairs during the past month, which is now assumed to be the foundation of the Standard Union attack." In that statement he asserted that: "I have had occasion to borrow, from certain banks, the sum of $20,000 and no more, within about 30 days."

He then stated that $5,000 of this amount was used to take up a note of $5,000, due October 22, 1911, $5,000 to purchase some stock from Louis T. Walter (who, as we have seen, was one of the delegates to the convention, and the man who nominated him thereat), and that the remaining $10,000 was borrowed for the purpose of spending it, should that much be needed during the campaign, and that the most of the latter amount was still in his possession. That this was not the whole truth in regard to his financial affairs in connection with his nomination was conclusively established by the evidence in this case. Although the evidence may not establish that he directly borrowed more than $20,000 from banks, it did establish that he had also borrowed upon his note to the order of Mr. Frank R. Merrill, a personal friend, and discounted at the bank of the latter, for his accommodation, within 36 days of the date of said statement, an additional sum of $5,000. When defendant obtained this loan, he asserted that it was to be used in connection with the primary elections in Queens county, at which delegates to the assembly conventions were chosen, which in turn elected delegates to the judicial convention. It appeared from the evidence that in no true sense had $5,000 of the $20,000 subsequently borrowed been used to pay this note. If it was the fact that $5,000 of the cash obtained by defendant in "big bills," mostly of the denomination of $1,000 each, from the National Bank of Far Rockaway, upon the first loan of $10,000 on the 30th of September, was used to pay this note, it was only after defendant had obtained an equal sum in cash by the sale of stock belonging to said Merrill, which he had given to defendant's brother, with defendant's knowledge, to enable him to take up said note. Though there was a cash payment to Walter of $5,000, also in “big bills," and some evidence of a transfer of certain certificates of stock in two corporations, if the payment was in consideration of such transfer, the jury were justified in finding that the stock was of little or no value, and the transaction merely colorable. Finally, there was evidence to contradict defendant's statement that at the date thereof he still had in his possession the greater portion of the remaining $10.000. Appellant contends that the admission in evidence of the article from the Standard Union, of the subsequent statements of Mr. Ketcham and Mr. Callahan respecting the same, and of the institution and withdrawal of the criminal prosecution of Mr. Berri on account thereof, and of the evidence respecting the manner of payment of the Merrill note, was erroneous and prejudicial. If any of this evidence had been admitted as of itself establishing the fact of defendant's guilt or innocence, it might be criticized. It was admitted for no such purpose. In addition to the evidence establishing defendant's guilt, the evidence now under consideration was admitted solely with relation to defendant's conduct in the face of accusation thereof. When the evidence was offered, the learned trial court was careful to state to the jury that it was admitted solely for the latter purpose; and in its instructions to

the jury it was careful to say, referring to the statements of Mr. Ketcham and Mr. Callahan:

"These are allowed in evidence for the purpose of determining whether the defendant's conduct in the light of these statements was indicative of guilt or innocence."

And again:

"The same is true as to the article published in the Standard Union. These are admitted in evidence so that you can see just what the charge was, and whether this man's conduct, when he knew what he was charged with, when he knew how vicious the charge was, indicated his freedom from guilt or his consciousness of guilt."

So with regard to the manner of payment of the Merrill note, the trial court again instructed the jury as follows:

"Now, there is testimony before you as to the payment of the note made by Merrill. You will remember that as a part of the people's case I allowed testimony to be given as to the method by which that note was paid. Mr. Willett had issued a statement in which he said that this loan that he had subsequently procured was for the purpose of paying that note made to Merrill, so the people were entitled to snow that that statement was false; and in order to do that, in order to furnish evidence which they claim showed it to be false, they had the right to show just the method by which it was paid, as one of the links necessary in the chain. Originally that was all that you could consider that testimony for, as hearing upon the question as to whether that payment was made by the defendant or was made by means of money which his brother raised from the stock or bonds of Mr. Merrill. But, as the case progressed, Marinus Willett was called as a witness for the defendant, and then this chain of circumstances became of value in another way. It became of value as bearing upon his interest in the case, his truthfulness and his credibility as a witness; and at last, if you find from the evidence in the case that this was done by the direction of the defendant, and you find that these circumstances indicate guilt, you may consider them upon the question as to whether the defendant is guilty. But, unless you find that this was done at his instigation, then it cannot be considered as direct evidence of his guilt. So, to make that plain, I will say that you cannot make the defendant responsible here, for something that his brother did, and the inference which would result from his brother's doing something in a circuitous manner cannot be attributed to the defendant by inference. You cannot base one inference or presumption upon another inference or presumption; you must find the direct connection."

Thus limited, the evidence was properly received. Conduct, when it emanates from a party to the cause, can be justified equally as an admission or a self-contradiction. 1 Wigmore on Evidence, 267, subd. "b." No conduct is necessarily conclusive. On the other hand, no conduct is without significance of greater or less weight, according to cir

cumstances.

"Prominent among admissions by conduct is the making of false statements by the accused regarding important matters involved in the inquiry. The inference is * that one who seeks to deceive others or a court of justice as to the truth of the facts involved knows that he will be shown to be guilty in a criminal proceeding were the facts fully known. The government, therefore, is at liberty to show the most self-serving explanations or other statements of the accused with a view to proving the fact that they are false and that the accused must have known it." 2 Chamberlayne's Modern Law on Evidence, 1417.

See, also, Wigmore on Evidence, 278; Moriarty v. L., C. & D. R. R.

v. State, 49 Ala. 398; Hinshaw v. State, 147 Ind. 334, 362, 47 N. E. 157; State v. Benner, 64 Me. 267, 289; Commonwealth v. Devaney, 182 Mass. 33, 64 N. E. 402; Coleman v. People, 58 N. Y. 555, 560; Wilson v. United States, 162 U. S. 613, 621, 16 Sup. Ct. 895, 40 L. Ed. 1090.

Defendant's statement was shown to be false. To make it intelligible, that to which the statement was a reply must also be shown. As the learned trial court aptly put it (in speaking of the article in the Standard Union):

"No matter what it charges against anybody else or against any organiza. tion, or the purposes of any change in the district, or anything of that kind, or even a charge direct against Mr. Willett, that is not evidence against him, and the sole purpose of admitting the article is that it may illustrate, if it does tend to do so, any remark, or omission to remark, upon the part of Mr. Willett."

And again, in speaking of the statements of Mr. Ketcham and Mr. Callahan, the court said:

"This is what prompted his statement. It is just like a part of a conversation. The question that is asked that prompts the statement made by the defendant is competent, the same as the defendant's statement."

And again:

"Suppose I accuse you of something, and you say, 'Well, then, I will have to make a denial of it;' but you make a statement which is not a denial. Then the accusation and the statement are both competent."

The evidence was properly received. The jury were abundantly cautioned as to the use to be made of it.

The case is an important one; important to the people, and vitally important to defendant. The affirmance of this conviction may mean the wreck of a promising life. We have carefully examined every page of this voluminous record. Defendant's guilt seems conclusively established. Regardless, therefore, of consequences, we must discharge the duty devolved upon us. The springs from which the fountain of justice flows must be kept clear and unpolluted.

The judgment of conviction in this case must be affirmed. All concur. JENKS, P. J., concurs in separate opinion.

JENKS, P. J. I concur in the opinion of BURR, J., as it affirms the judgment, but not as it disposes of the brief submitted by the district attorney. I vote that the clerk be directed to strike out from all copies of that brief submitted to this court for any purpose the following sentences in pages 65 and 66 thereof:

"This is a perfect manifestation of intellectual inertia. These words are just unmitigated unthinking. They are used apparently to conceal whatever ideas may have been in the judicial mind."

I think that there should be no other notice taken of the brief or of the writer thereof. The district attorney undertook to criticize the opinion of the justice who granted the certificate of reasonable doubt. In the course of that criticism, he had the right to say, if he so thought, that the justice was careless; that is, that the justice did not exercise due care in the consideration of the matter before him. He had the

right to assign the discussion or the determination of the justice to lack of an exercise of his intellectual powers. He had the right to characterize the opinion or any part thereof as manifesting lack of thought for which there was no mitigation. And my vote is not in denial or in disparagement of these rights. But my vote is given because of disapproval of the verbiage of the criticisms made in a brief submitted to an appellate court.. The words are not of utterance but of writing-not spoken in the ardor of advocacy, but set down in the calm of composition. And while the words are addressed to those only who are supposed to be convinced by argument alone, they are published, and they may be read by any one. Language permissible in harangue or admissible in controversy or debate is not, therefore, style for discussion of the errors of the head and not of the heart of a judge, when his decision is under legal review.

The third sentence is subject to further criticism. A man may conceal his ideas without blame, and may use speech to conceal them. But the suggestion is that a judge has apparently used language in the course of a judicial opinion to conceal any ideas which may have been in his judicial mind. Of course the reference is to ideas, if any, which were pertinent to the case in hand, otherwise it would be meaningless. To suggest that a judge concealed such ideas, if any, by judicial utterances made for that purpose permits the inference that for some reason he was guilty of guile or of suppression. If such inference is permissible, it naturally suggests the inquiry: Why should a judge do this thing? Was there any reason peculiar to this case why the judge should not be outspoken as to any judicial ideas in his mind pertinent to the case, rather than attempt to cover them up by language used only for that purpose? I do not impute any intention to the district attorney by these words to allude to any judicial obliquity. I do not believe that he had such an intent. But the criterion is, not his intention, but a reader's possible inference. I am careful to note that the sentence is hypothetical, for the reference is not to any ideas that were, but to whatever ideas may have been, in the judicial mind. If one should say that I thus attribute too much to the words, then, in any event, they are within the criticism made upon the other two sentences in the brief. I regret the incident. I believe that the learned district attorney thought that he was within the bounds of legitimate criticism when he set down these words. The sentences do not make for a brief which is able, thorough, and convincing, and naturally may give umbrage to a justice distinguished for his labor, his learning, and his character.

(164 App. Div. 15)

PEOPLE v. CASSIDY.

(Supreme Court, Appellate Division, Second Department. October 2, 1914.) 1. ELECTIONS (§ 329*)-PROCURING NOMINATION TO PUBLIC OFFICE-PAYMENT OF CONSIDERATION-EVIDENCE.

In a prosecution of accused, a powerful political leader, for making, tendering, and offering to procure and to cause a nomination of oue W. for justice of the Supreme Court on the payment and contribution of a valuable consideration and on the understanding and promise thereof, evidence held to sustain a conviction.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 364–366; Dec. Dig. 329.*]

2. ELECTIONS (§ 329*)-VIOLATION OF ELECTION LAW-EVIDENCE-EVIDENCE ADMISSIBLE BY REASON OF THE ADMISSION OF OTHER EVIDENCE.

Where, in a prosecution of a political leader for selling a nomination for the office of justice of the Supreme Court, a witness, from whom the nominee had obtained $5,000 of the money claimed to have been paid to defendant on a note discounted at the witness' bank, testified that the note must have been paid at maturity, because witness never saw the note or heard anything about it thereafter, in order to raise an inference that the nominee paid the note from money borrowed from other sources, evidence that the note was not thus paid, and that the witness' testimony that he had never heard of the note afterwards was untrue, but that he had given to the nominee's brother certain railroad stock to be sold, and that with the witness' knowledge the proceeds of the stock were used to pay the note, and that a portion of the sum obtained from the sale of the loaned stock was still owing to the witness, was admissible under the rule that where evidence is elicited on cross-examination, from which an inference favorable to defendant may be drawn, subsequent evidence of other facts or circumstances showing that the inference is unwarranted is competent.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 364-366; Dec. Dig. § 329.*]

Appeal from Trial Term, Queens County.

Joseph Cassidy was convicted of making, tendering, and offering to procure and to cause a nomination to a public office on the payment and contribution of a valuable consideration, and on the understanding and promise thereof, and he appeals. Affirmed.

Certificate of reasonable doubt granted, 149 N. Y. Supp. 390.

Argued before JENKS, P. J., and BURR, CARR, RICH, and PUTNAM, JJ.

Robert H. Elder, of New York City, for appellant.

James C. Cropsey, Dist. Atty., of Brooklyn, for the People.

BURR, J. All but one of the questions of law presented by the exceptions taken upon the trial of this action have been considered in the case of People v. Willett, 149 N. Y. Supp. 348, decided herewith. The question of fact is: Was defendant's guilt established beyond a reasonable doubt? When the evidence taken before the committing magistrate was reviewed by this court on an appeal from an order dismissing a writ of habeas corpus and remanding the prisoner, we deemed such evidence insufficient to warrant his detention. People ex rel. Cassidy v. Quinn, 150 App. Div. 813, 135 N. Y. Supp. 477.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes