rights to dividends are not entitled to share therein.

I do not regard as helpful to this discussion those cases cited by the plaintiff and a multitude of others which might have been cited, dealing with the respective rights of life tenant and remainderman in extraordinary distributions of accumulated gains on stocks held in a trust fund. While chance expressions may be extracted from the opinions

the present question, the questions really involved in those cases and in this one are fundamentally different. The general problem with which the courts have struggled in those cases has been how such unusual distributions should be paid over in order best to carry out the assumed intent of the testator or benefactor who created the trust. As was made clear by Judge Chase in his thorough consideration of this subject in Matter of Osborne, 209 N. Y. 450, 103 N. E. 723, 823, more frequently the much-considered question in this class of cases has been whether the distribution impaired what was the corpus or capital of the trust fund when it became effective rather than whether it involved a division of the capital of the corporation. Various rules adopted in different jurisdictions by which to determine the application of these extraordinary distributions, as well as the ones finally formulated in the Osborne Case, 209 N. Y. 458 et seq., 477, 103 N. E. 723, 823, make it perfectly apparent that the courts were not there concerned with questions of capital and profits as between corporation and stockholders which are involved here.

the shareholders. It was provided that the preferred shares should "entitle the holders thereof to a dividend after the rate of 5 per cent. per annum, taking precedence of and priority over all dividends and claims of the holders of the ordinary shares of the company." Certain sums were carried from current profits each year to various reserve and depreciation funds. After awhile the company sold out its business and property and entered on voluntary liquidation. Aft-seeming to be pertinent to the settlement of er satisfying all liabilities and repaying all amounts paid in by the shareholders, there remained a large surplus, and the question was how this surplus should be distributed as between preferred and common shareholders. It is true that the common shareholders amongst other things did urge that the rights of preferred stockholders in gains and profits were limited to a preferential dividend of 5 per cent., and that after payment of this the common stockholders were entitled to all remaining surplus. All of the courts disagreed with this contention, but it is not too much to say that they repeatedly affirmed as the fundamental basis for this conclusion the proposition that under the articles of association the principles which would control the distribution by a going concern of current profits between common and preferred stockholders with preferential but limited rights to dividends were utterly inapplicable to surplus and accretion resulting from augmented values realized by a beneficial sale on dissolution and liquidation; that the provisions concerning distribution of profits by way of dividends then no longer applied. There is, in my opinion, nothing whatever to be found in any of the opinions which is applicable to the present case or which supports the proposition that the profits now about to be distributed have become capital which must be paid, if at all, to preferred as well as common stockholders. In fact, I think some support is found for respondent's position in the decision that the sums carried from annual profits to various reserve funds of a permanent character did not thereby lose their nature of divisible profits but even in liquidation proceedings were to be distributed as profits away from the preferred stockholders. The case of Niles v. Ludlow Valve Mfg. Co., 196 Fed. 994, affirmed 202 Fed. 141, 120 C. C. A. 319, so far from being an authority for the appellant, is on the facts presented and questions actually decided an authority for respondent. While there is a contingent suggestion that preferred stockholders might have an interest in an "addition to the original value of the corporate property due * to an unearned increment attaching to the corpus of defendant's estate," I should think that this had reference to the situation which might arise on dissolution proceedings. But at any rate it is held that profits accumulated and carried for many years belong to common stockholders, and that preferred stockholders with limited

As against the contentions of the plaintiff, I think it is abundantly established by decisions which are in conformity with and fortified by commercial understanding and experience that the gains or profits realized by a corporation, at least from its active transactions such as those under consideration here, constitute profits and surplus which are available for dividends. Williams v. West. Union Tel. Co., 93 N. Y. 162, 191; Lubbock v. British Bank of So. Amer., L. R. (2 Ch. D. 1892) 198; Mackintosh v. F. & P. M. R. R. Co. (C. C.) 34 Fed. 582, 606.

In the Williams Case it was written on the subject:

"But, if it can be conceived that this was a dividend of property within the meaning of the section of the Revised Statutes above set out, then what property did it divide? Not any portion of the capital of the company; that remained intact. After subtracting the dividend there remained to the company the full amount of its prior capital stock, to wit, property to the value of $41,073,410. Such is the finding of the trial court, and that cannot here be disputed. The company had made surplus earnings which it could have divided, but instead of dividing them it had invested them in property to facilitate and enlarge its business; and such property was found to be worth $15,526,590. That sum constituted its surplus. It was commingled with the other property of the company and used for corporate purposes. not beyond the reach of the dividend-making power of the directors. They could reclaim it

But it was

MISSIBILITY.

In a prosecution for homicide, the exclusion of evidence as to statements by the magistrate, before whom one of the state's witnesses was examined at a time when he was accused of offense, is proper.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 950–967; Dec. Dig. § 417.*] 5. CRIMINAL LAW (§ 959*)-NEW TRIAL

NEWLY DISCOVERED EVIDENCE-EXAMINA-
TION OF WITNESSES.

for division among the stockholders, and, if | 4. CRIMINAL LAW (8 417*)-EVIDENCE-ADpracticable, convert it into cash for that purpose. They could borrow money on the faith of it and divide that. They could issue to the stockholders certificates of indebtedness, redeemable in the future, representing their respective interests in such surplus, thus, in effect, borrowing the same of the stockholders. Desiring to use the surplus and add it to the permanent capital of the company, and having lawfully created shares of stock, they could issue to the stockholders such shares to represent their respective interests in such surplus. In doing these things no law would be violated, the capital would be kept intact, and no stockholders or creditors would have any legal right to complain. All this, however, depends upon the finding of the trial court that the surplus is equal to the dividend. That finding is not open to criticism here. It was not disturbed at the General Term and therefore concludes us. When a corporation has a surplus, whether a dividend shall be made, and, if made, how much it shall be, and when and where it shall be payable, rest in the fair and honest discretion of the directors uncontrollable by the courts.'

In a prosecution for homicide, evidence held sufficient to establish defendants' identity and to overthrow their alibi.

[Ed. Note. For other cases, see Homicide, Cent. Dig. 482-493; Dec. Dig. § 234.*] 2. CRIMINAL LAW (§ 742*) - TRIAL-JUBY QUESTION.

The degraded character of the witnesses for the state, in a criminal prosecution, will not authorize the court in taking questions of fact from the jury..

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig. § 742.*]

3. HOMICIDE (§ 336*) — APPEAL-HARMLESS ERROR.

In a prosecution for homicide, the jury, after retiring, returned and asked whether both defendants were identified by the deceased. The court, with consent of counsel, informed them that there was testimony that both defendants were brought into the presence of deceased, who said something, and that, at the suggestion of the court, the district attorney did not press for an answer to the question as to what deceased then said. Held that, in view of Code Cr. Proc. § 542, requiring the reviewing court to disregard technical errors, as well as section 528, authorizing reversals in capital cases for certain fundamental errors, though no exception be taken, the remarks of the court, if erroneous, were harmless, not suggesting to the jury that the statement of deceased was admissible and tended to identify defendants.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 554, 707; Dec. Dig. § 336.*]

Under the direct provisions of Code Cr. Proc. § 465, subd. 7, the trial court may, when new trial is requested for newly discovered evidence, examine under oath the affiants as to their knowledge.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.*]

6. CRIMINAL LAW (8_942*)-NEW TRIAL

NEWLY DISCOVERED EVIDENCE.

for newly discovered evidence is properly deIn a prosecution for homicide, a new trial

nied, where the whole trend of the evidence merely intended to impeach two of the state's witnesses.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.*]

Hogan and Cardozo, JJ., dissenting.

Appeal from Court of General Sessions, New York County.

Eng Hing and another were convicted of murder, and, from the conviction and order denying a new trial they appeal. Affirmed.

Terence J. McManus, of New York City, for appellants. Charles S. Whitman, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

WERNER, J. The defendants have been convicted of murder in the first degree. The charge is that on the 27th day of February, 1912, between 7 and 8 o'clock, they shot Lee Kay while he was in a small store known as No. 18 Mott street, in the borough of Manhattan, city of New York, and inflicted upon him a wound from which he died on the 10th day of June in the same year. The defendants have been twice tried. On the first trial the jury disagreed, and on the second trial From the the defendants were convicted. judgment entered upon the verdict rendered on the second trial, the defendants have appealed to this court.

The shooting took place in the store of Lee Po Ming, and there were present Lee Po Ming, who was seated behind a counter at the rear end of the store, two Chinamen, named Lai Look and Hom Chung, who sat on a box and stool, respectively, on the southerly side of the store, about opposite the end of the counter, and Lee Kay, the deceased,

who sat on a fruit box in front of the counter reading a newspaper. According to the witnesses, Ming, Chung, and Look, the defendants came to the front door of the store, and immediately began to discharge their revolvers, firing four or five shots, two of

which lodged in the body of Kay, one pene- in an area on the further side of a wall trating the left arm a little above the elbow, which separates No. 18 Mott street from No. and another the left side of the back below 16, and the officer placed him under arrest. the shoulder blade, going in toward the me- Wade, another police officer, was with Cuneen dian line and stopping at the ninth dorsal when the shooting was heard. He saw two vertebra. That there were a number of shots Chinamen run from the Mott street entrance fired is amply demonstrated by the physical to the arcade into the hallway of No. 18 Mott conditions discovered after the shooting. street, where he found Li Fong and placed Two separate bullets had entered the body him under arrest. Within the arcade, about of Kay. Three bullet holes were found in midway between Mott street and Doyers the fruit box on which he had been sitting. street, there was one George Sullivan, who Another bullet lodged in a clock which hung was passing through. He saw two men runon the rear partition wall of the store. At ning; he heard shooting; and he saw the the opening of the fusilade, Ming got down defendant Eng Hing fall after the shooting. behind the counter, while Chung and Look That the defendant Eng Hing was in the arran through a door leading to a room in the cade, and that there he was shot in the thigh, rear of the store, where there were four is admitted by him. Supplementing all the Chinamen, named Li Fong, Frank Yee, Lee testimony for the prosecution, of which the You, and Yung Hoy. Two of these, Fong foregoing statement is a bare skeleton there and Yee, seized revolvers and started in is the ante-mortem statement of Lee Kay, repursuit of the defendants, who were then ceived in evidence by consent of counsel for running along Mott street toward an arcade the defendants, in which the declarant says: which connects Mott street and Doyers street. "On February 27, 1912, at 8:45 p. m., this Lee Dock and Eng Hing was In addition to Ming, Chung, and Look, fellow shot_me. the two. Lee Dock shot me. Lee Dock was there were three other persons who witnessed brought here and identified by me as the man the shooting from the outside of the store. who shot me at 18 Mott street. I was sitting These were Florence Wong, Grace Mack, in the store and Lee Dock came to the door and white women who lived with Chinamen, shot me." and a Chinaman named Lai Hay, who resided in Ossining, but was then celebrating the Chinese New Year in the city of New York. The two women were on their way from their apartments to a restaurant in No. 14 Mott street. As they reached the middle of the street they heard shots at No. 18. Looking in that direction they saw the defendants shooting into the store, and then watched them as they ran toward the arcade. According to Florence Wong, both of the defendants had pistols in their hands as they ran, and one of them threw his away. The Chinaman Lai Hay testified that he was standing in front of No. 17 Mott street when he heard shots at No. 18; that he saw the defendants shooting into the store, and that they then ran to the arcade; that when they got to No. 20 Mott street the defendant Eng Hing threw away a pistol. Li Fong and Frank Yee, the two Chinamen who gave chase to the defendants, testified that when they reached the sidewalk they saw two Chinamen, whom they recognized as the defendants, running toward the arcade, and that when the defendants had retreated into the arcade, there was an exchange of shots between the defendants on the one side, and Li Fong and Frank Yee on the other.

Cuneen, a police officer whose post was on Pell and Doyers streets, stood at Mott and Pell streets when he heard a number of pistol shots. He ran in the direction from which the sounds came, and, as he approached No. 20 Mott street, he saw two Chinamen firing into the arcade. The Chinamen stopped shooting when they saw the officer coming and ran into the hallway of No. 18 Mott street, where Frank Yee was found hiding 106 N.E.-7

The defense is a general denial by both defendants, supplemented by testimony designed to prove an alibi as to each of them. The defendant Lee Dock testified that on the evening of February 27, 1912, between 7 and 9:30 o'clock in the evening, he was in his room on the third floor of No. 33 Allen street; that this was an apartment maintained by William McGann; that McGann and Martin Schauer were present with him during the whole of that time; that shortly before 10 o'clock he left the apartment to go to a restaurant at No. 11 Pell street to get something to eat; and that while he was in this restaurant he was placed under arrest by Detective Kennell. This defendant was corroborated by McGann, who testified that he was in the apartment with Dock and Schauer; that shortly before 8 o'clock he (McGann) went out to get some coffee and cake; that on this trip he went to the arcade, and while there he heard the shooting; that after making his purchases he returned to the apartment and related to Dock and Schauer what he had witnessed in Mott street; and that Dock remained in the apartment until half past 9 o'clock, when he went out. Schauer corroborated Dock and McGann, and stated that he and Dock were constantly in the room together until half past 9, when the latter went out.

The defendant Eng Hing testified that on the evening of February 27, 1912, he lived at No. 12 Pell street with Yow Yue and Eng On; that at about 8 o'clock he left his room for the home of his cousin Wan Wah to get a letter; that on his way he went through the arcade, and as he neared the Mott street entrance he heard shots; that he became frightened, turned, and ran in the direction

of Doyers street, and while thus seeking to escape he received a bullet wound in the thigh; that when he became convinced that he was being pursued by two men he turned and said, "Brethren, I don't belong to any society, don't strike me;" that he afterwards identified these two men as Li Fong and Frank Yee; and that when he was discharged from the hospital he was arraigned for the murder of Lee Kay and remanded to the Tombs prison.

Frank Yee. The fact that Eng Hing was shot is admitted by him and testified to by Sullivan, and the evidence clearly identifies his assailants as Li Fong and Frank Yee. The story of the police officers, Cuneen and Wade, fully coincides with the statements of these two Chinamen regarding the occurrences in the arcade. All this evidence is so direct and convincing and consistent that there can be no doubt as to the duty of the jury in the premises, unless doubt is to be sought in the deAlbert Donnelly, a driver who resided at graded character of some of the witnesses. 15 Franklin street, testified that in the eve- The answer to this suggestion is found in the ning of the shooting he stood at the corner of very recent case of People v. Seidenshner, 210 Mott and Park streets nearly opposite the N. Y. 358, 359, 104 N. E. 420, where Judge Mott street entrance to the arcade, and that Chase had occasion to discuss for this court he heard shooting; that he saw one China- the character of witnesses by whose testimony man come down from the arcade to the foot the commission of the crime of murder was esof the stairs and immediately turn back, tablished. It was there very aptly pointed out while, in the same instant, two Chinamen that crimes are usually committed by those came down the street and began firing into who are properly designated as criminals, and the arcade. who consort with their own kind in surroundEdward Kadin, in the business of deliver-ings where persons of undoubted veracity and ing newspapers, testified that at about 8 respectability are rarely found, and then only o'clock in the evening of February 27th he was walking on Mott street from Chatham Square to Pell street; that as he approached 18 Mott street he heard shots; that he saw a Chinaman come out of the arcade and immediately turn back, and at the same time two Chinamen ran into the arcade and fired shots. Eng Hue Yuen testified that the defendant Eng Hing lived with him at No. 12 Pell street, and that he saw the latter leaving the room at about 8 o'clock, without any pistol on his per

son.

The foregoing outline presents merely the essential features of a trial singularly free from errors and questions of law. The record, from beginning to end, discloses in greater amplitude of detail an issue of fact upon which the verdict is conclusive unless we can say that it is against the weight of the evidence, or contrary to law, or that justice requires a new trial. We shall first consider the record of the trial, and then separately discuss the merits of the application for a new trial on the ground of newly discovered evidence.

[1, 2] The first and most important fact in the consideration of this appeal is that there were six eyewitnesses to the shooting which resulted in the wounding and ultimate death of Lee Kay. These were Lee Po Ming, Hom Chung, and Lai Look, who were inside of the store, and Florence Wong, Grace Mack, and Lai Hay, who were in the street. All of the witnesses positively identified the defendants as the men who did the shooting. Then there is the testimony of Li Fong and Frank Yee, who were in the room back of the store, and who rushed out in pursuit of two Chinamen running toward the arcade and whom they Identified as the defendants. This is supplemented by the conceded fact that the defendant Eng Hing was in the arcade immediately after the shooting in No. 18 Mott street, and

by chance. The moral of the discussion was
that the value of such testimony is for the con-
sideration of the jury quite as much as any
other; and that when it is submitted under
proper instructions it is conclusive upon this
court, unless it is inherently improbable, or
clearly against the weight of other more
credible evidence. There is nothing intrinsi-
cally improbable in the stories told by the
various witnesses for the prosecution; on the
contrary, they appear to be so direct, and so
consistent with various conceded facts, that
the issue was clearly for the jury. In such
circumstances "it would be hazardous for
seven judges of the law
to say
that the 12 judges of the fact were wrong."
People v. Ferraro, 161 N. Y. 365, 377, 55 N. E.
931, 935.

*

What is there of the defense? As to the defendant Eng Hing it rests wholly upon his explanation of the reason for his presence in the arcade just after the shooting in No. 18 Mott street. He testified that he left his apartment in Pell street at about 8 o'clock, and that the purpose of his leaving was to go to the home of a cousin in Mott street to get a letter. As to the time of his departure from the apartment, he is corroborated by the witness Eng Hue Yuen. In every other particular his story is without corroboration, for the witnesses Donnelly and Kadin did not identify any of the Chinamen who figured in the occurrence in the arcade, and the story of Sullivan is quite as consistent with the theory of the prosecution as with the claim of this defendant. There is in this story of Eng Hing nothing inherently more probable than the story told by the eight witnesses for the prosecution, and, in any event, it presented a simple question of fact for the jury.

The alibi sought to be established for the defendant Lee Dock also involves a plain issue of fact. His testimony, as corroborated

[3] We now come to an incident of the trial which the dissenting members of the court regard as a sufficient ground for the reversal of the judgment of conviction. The record discloses that after the jury had retired for deliberation they returned to the courtroom "Q. Did Lee Kay say to you, 'You son of a and asked the following question: bitch, why did you shoot me?" A. When the "Were both defendants identified at the hos- police officer had put me by the bed I was expital by the man who died, Lee Kay?" cited; I did not hear what he said. I knew I was arrested, but I was excited. Q. Lee Kay The court, with the consent of counsel, re- spoke in pidgeon English, didn't he? A. I don't sponded: know; I did not hear."