but not influenced by anything said to him by the officer, was admissible in evidence.

Elementary writers upon criminal evidence all agree that when confessions or statements are made by a prisoner while intoxicated, they become questions of fact for the jury to say how far the prisoner was mentally affected by the liquor when he made the confessions, and what weight and credit should be given to his testimony. Whart. Crim. Ev., sec. 636; Underhill Crim. Ev., sec. 136; 3 Rice Crim. Ev., sec. 315.

No preliminary examination, therefore, was necessary to determine whether the defendant's statements while under the influence of drugs or liquor were admissible in evidence. The court committed no error in refusing to allow the jury to be withdrawn during the examination of the defendant.

The rule is well settled that upon a trial of an indictment if the prisoner offers himself as a witness and testifies in his own behalf, he thereby becomes subject to the same rules, and must submit to the same tests which are legally applied to other witnesses.

Even if a preliminary examination had been necessary to enable the court to determine whether the statements were competent evidence to be admitted, the court in its discretion could conduct such examination in the presence of the jury, and unless that discretion was abused it constituted no error.

In the case of People v. Smith, 104 N. Y. 494, a question arose as to the admissibility of statements made by the deceased, which were offered in evidence as dying declarations. The court held that such preliminary examination in the discretion of the court may be conducted in the presence of the jury, but during it they stand simply in the attitude of spectators. With the testimony they have no concern, it being given merely for the information of the court, and until by its ruling some portion of it is presented to the jury as comVOL. XVII-30

petent evidence in the case, there is nothing to which the defendant could except as constituting legal error. People v. Cassidy, 133 N. Y. 612.

After a careful consideration of the questions raised upon this application, I have reached the conclusion that the exceptions to the rulings of the court are not well taken, and do not entitle the defendant to a certificate of reasonable doubt. If I entertained any doubt as to his guilt I might feel constrained to grant a stay. But taking into consideration the defendant's conduct, his letters and the evidence referred to in the judge's charge, I am unable to see how the jury could have reached any other conclusion than that he was guilty of the crime charged against him in the indictment. There is noth

ing in his conduct that entitles him to the sympathy of the court. To allow a man convicted of such a crime to go at large, when his guilt is so apparent, would tend to bring the administration of criminal justice into disrepute.

The motion, therefore, for a certificate of reasonable doubt is denied.

Motion denied.

Supreme Court Special Term, New York.
July, 1903.

THE PEOPLE v. GEORGE E. MILLS.

(41 Misc. 195.)

1. ATTEMPT TO COMMIT CRIME-WHO ARE PRINCIPALS-PENAL CODE, SECS. 29, 34.

On the trial of an indictment for an attempt to commit the crime of unlawfully removing public records, and also for an attempt to commit grand larceny in the second degree by attempting to steal indictments, it seemed that whatever was done in the way of remov ing or taking was not done under the counsel or inducement of the defendant, but by the district attorney; that the taking which it is

claimed defendant counseled never took place, the taking being by the district attorney solely by his personal purposes and not as an accomplice. Held, that defendant was not a principal, within Penal Code, section 29, in removing or stealing the indictments, as the act of the district attorney cannot be imputed to the defendant. 2. SAME-SOLICITATION OF ANOTHER.

Proof of the solicitation by defendant of another, a detective, to remove indictments from the office of the clerk and to steal them would be sufficient to sustain the verdict under section 34, Penal Code, and with such evidence in the case defendant might properly be convicted of the crime and a certificate of reasonable doubt refused.

APPLICATION for a certificate of reasonable doubt.

William Travers Jerome, District Attorney (Robert C. Taylor, Assistant District Attorney, of counsel), for People.

John R. Dos Passos, John T. Little and Howe & Hummel, for defendant Mills.

records

DRUGO, J.: Mills, the defendant, was accused by an indictment framed under sections 34, 94 and 531 of the Penal Code, and which contained two counts: First. Of the crime of an attempt to commit the crime of wilfully and unlawfully removing deposited in a public office Second. Of the crime of an attempt to commit the crime of grand larceny in the second degree committed by the felonious attempt to steal six indictments. Section 34 reads: "An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." It is contended that the evidence warranted a conclusion that the crimes charged as having been attempted were committed, and that a conviction upon an accusation of an attempt to commit the crime was, therefore, warranted under section 685 of the Penal Code, and this contention rests upon a claim that defendant, through counseling the removing and the taking of the indictments, became a prin

cipal by virtue of section 29 of the Penal Code, which reads as follows: "A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal." It seems that whatever was done in the way of removing or taking was not done under the counsel or inducement of the defendant, but by the district attorney, who was prompted to do the removing by his desire to use the papers for entrapping purposes and between whom and the defendant there was a want of community of motive. The taking which it is claimed defendant counseled never took place; the taking which did take place was by the district attorney, was solely for his personal purposes and independent of any counsel or inducement on the part of the defendant, and in taking the indictments the district attorney was not an accomplice. As there was nothing in common between the motives of the district attorney and those of the defendant, the act of the district attorney was not imputable to defendant. The claim that defendant was a principal in a removing and stealing of the indictments is, therefore, untenable. But there was evidence from which the jury may have justly inferred that the detective, Brindley, was solicited by the defendant to remove the indictments from the office of the clerk and to steal them, and this was sufficient to sustain the verdict, for a mere solicitation to commit a crime with intent to commit the crime is "an act done with intent to commit a crime, and tending sion," within the meaning of these words as used in section 34 of the Code (King v. Higgins, 2 East, 5, 1 Russ. on Cr. 196 [ed. of 1896], 4 Hill, 135), and even though the words used by the defendant did not amount to a solicitation, I believe that they constituted such an act as is referred to in section 34. I have given due consideration to all the questions referred to

to effect its commis

in the briefs presented in behalf of the applicant and am unable to say that in my opinion there is reasonable doubt whether the judgment should stand, and will, therefore, deny the application for a certificate. Application denied.

Supreme Court-Appellate Division, Second Department. July, 1903.

THE PEOPLE v. THOMAS F. CORBALIS.

(86 App. Div. 531.)

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1. GAMBLING POOL SELLING INDICTMENT-PENAL CODE, Sec. 351. An indictment which shows that defendants, on a given day, did feloniously, outside the race course authorized by law, engage ... in pool selling and selling pools upon the result of a trial and contest of speed and power of endurance of" horses on the day named, is a sufficient statement of the acts constituting the crime. 2. SAME.

If defendants, indicted for pool selling, believe that they are insufficiently advised as to particular facts that will be proven to make out against them a case under the statute, their remedy is by a bill of particulars.

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An indictment which charges that defendants did engage, aid, assist and abet in pool selling and selling pools" is not void for duplicity.

APPEAL by the plaintiff, The People of the State of New York, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 11th day of May, 1903, sustaining the defendants' demurrer to an indictment against them charging them with the crime of pool selling, in violation of section 351 of the Penal Code, and directing that the charge be resubmitted to the grand jury.