Opinion of the Court, per WILLARD BARTLETT, J. [Vol. 196. right was absolute under the law. The treasurer thereupon said: "If you will tell me your purpose and if such purpose appears to me to be proper I will then allow you to inspect the stock book but not otherwise." The plaintiff still declined to disclose his purpose whereupon the treasurer finally refused the desired inspection.

This controversy was then stated between the parties and duly submitted to the Appellate Division, the plaintiff contending that the refusal to permit an inspection of the defendant's stock book entitled him to recover a penalty of $250 under section 53 of the Stock Corporation Law. The Appel. late Division has rendered judgment in favor of the defendant and from that judgment the plaintiff now appeals.

Section 53 of the Stock Corporation Law, as in force at the time of this transaction (now section 33 of chapter 59 of the Consolidated Laws) provided that every foreign corporation having an office for the transaction of business in this state should keep a stock book containing a list of its stockholders, showing their places of residence, the number of shares of stock held by them respectively, etc. It further provided as follows: "Such stock book shall be open daily, during business hours, for the inspection of its stockholders. any refusal to allow such book to be inspected, such corporation and the officer or agent so refusing shall each forfeit the sum of two hundred and fifty dollars ($250) to be recovered by the person to whom such refusal was made." (Laws of 1892, ch. 688, § 53, as amended by Laws of 1897, ch. 384.)

* * *

For

Referring to those cases in which it has been held that the courts in the exercise of their discretion may properly refuse to compel by mandamus the production of the books of a corporation for inspection by a stockholder where it does not appear that the inspection is sought for a legitimate purpose, the learned judge who wrote the prevailing opinion below saw no reason why the same rule should not be adopted in the present case. He thought that the plaintiff's refusal to disclose his motive authorized the inference that the motive was improper; and that the desired permission to inspect and

N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J.

copy was rightfully denied, not only for that reason, but because the statute did not expressly entitle a stockholder to copy the names and addresses of the other holders of stock from the stock book.

In Matter of Steinway (159 N. Y. 250) the question certified to this court for decision was: "IIas the Supreme Court the power, upon the petition of a stockholder, to compel by mandamus the corporation to exhibit its books for his inspection?" In the opinion of the court, Judge VANN carefully inquired into the origin and extent of the authority of the Supreme Court and its power of visitation or of examining into the affairs of corporations according to the common law; and the conclusion was reached that the common-law right of a stockholder with reference to the inspection of the books of his corporation still exists unimpaired by legislation, and that the Supreme Court has power, in its sound discretion upon good cause shown, to enforce such right. That decision, so far as it goes, tends to sustain the position of the appellant; but it did not pass upon the force and effect of the statute whose operation is invoked in the present case.

The

No doubt the legislature could make the stockholder's privilege of inspection dependent upon the motive or purpose with which it is sought; but it has not seen fit to do so. language of the statute is plain and mandatory. It recognizes an absolute right in the stockholder and imposes an absolute duty upon the corporation and the custodian of the stock book. The law requires no statement or proof of any particular intent upon the part of the person demanding the inspection. He must be a stockholder and must prefer his request during business hours; that is all. If it appeared in good faith that the book was then in actual use for other cor porate purposes, he could, of course, be required to wait a reasonable time until such use terminated; but no such matter of defense is suggested here. The plaintiff was refused any inspection at all in the absence of a disclosure of his purpose; and this action of the defendant has been sanctioned by the judgment of the Appellate Division. We think that judg

ment is based upon a mistaken construction of the statute in this respect. Nor was the refusal justified on the ground that the law confers upon the stockholder no express right to copy from the book. The right to inspect the book includes the right on the part of the stockholder to aid his memory by copying therefrom to the extent indicated in the agreed statement of facts in the present case. In Cotheal v. Brouwer (5 N. Y. 562) it was held that the custodian of a register of stockholders which the stockholder had a statutory right to examine could not close the book because a stockholder desired to make a memorandum in the course of his examination in order to assist his recollection. "Unless the stockholder is permitted to take memorandums from the books," said PAIGE, J., "or copies of the names of the stockholders, the plain object of the statutory provision would be defeated." (p. 567.) The judgment of the Appellate Division should be reversed and judgment directed for the plaintiff in accordance with the terms of the submission, with costs in both courts.

CULLEN, Ch. J., VANN, WERNER, HISCOCK and CHASE, JJ., concur; GRAY, J., not voting.

Judgment reversed, etc.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM MORSE, Appellant.

Murder-evidence that the defendant was trying to escape arrest when he killed the deceased admissible as proof of deliberation and premeditation declarations of decedent identifying defendant - evidence as to finding of defendant's revolver and knife.

Where a person places a revolver in his pocket and soon thereafter commits highway robbery in a deliberate, intentional and premeditated manner, and in his effort to avoid arrest shoots a policeman, it presents a question for the jury whether the policeman was killed by the deliberate and premeditated intention of the one firing the shot. Evidence of a robbery by defendant which preceded the shooting is competent as part of a continuous transaction and to show that defendant was liable to arrest and his motive and intent in firing the shot.

Where it appears that the victim of the crime appreciated that his recovery was impossible and that his death was imminent, his statements identifying the defendant were properly received as dying declarations. Evidence was given that a knife was found with a revolver on the ground of an alley near where defendant was arrested. Held, that the fact that they were left there by defendant and identified by him makes it part of the history of the arrest, and hence admissible.

(Argued October 28, 1909; decided November 9, 1909.)

APPEAL from a judgment of the Kings County Court, rendered December 20, 1907, upon a verdict convicting the defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

William W. Wingate for appellant. The evidence is insufficient to sustain a judgment of conviction of murder in the first degree. (People v. Hunter, 184 N. Y. 231.) The admission of testimony as to the statement made by deceased constitutes reversible error. (People v. Gascone, 185 N. Y. 323; People v. Kennedy, 164 N. Y. 449; People v. Koerner, 154 N. Y. 355; People v. Smith, 172 N. Y. 240.) The court erred in allowing Abbie Johnson to testify that the defendant robbed or attempted to rob her. (People v. Sharp, 107 N. Y. 427; Coleman v. People, 55 N. Y. 81; People v. Shea, 147 N. Y. 78; People v. Molineux, 168 N. Y. 293; People v. Rogers, 71 Cal. 565.) The court erred in allowing testimony as to the finding of a knife. (People v. Del Vermo, 192 N. Y. 481.)

John F. Clarke, District Attorney (Peter P. Smith of counsel), for respondent. The evidence is amply sufficient to sustain the judgment of conviction. (Penal Code, § 183; People v. Barberi, 149 N. Y. 256; People v. Decker, 157 N. Y. 186; People v. Ferraro, 161 N. Y. 375.) There was no error committed by the admission of the testimony as to the statement made by the decedent. (People v. Gascone, 185 N. Y. 317; People v. Del Vermo, 192 N. Y. 470.) The court did not err in allowing Mrs. Abbie Johnson to testify that the defendant robbed her. (People v. Molineux, 168

Opinion of the Court, per CHASE, J.

[Vol. 196.

N. Y. 293.) There was no error committed by allowing Frank Cosgrove to testify as to the finding of a knife. (People v. Del Vermo, 192 N. Y. 470.)

CHASE, J. A jury has found the defendant guilty of murder in the first degree. At the trial he did not call any witnesses in his behalf, and the evidence for the People is uncontradicted. From the evidence it appears that the defendant on the evening of November 14, 1907, came up behind a woman who was walking upon one of the public streets of the borough of Brooklyn, city of New York, and grabbed a large pocket book which she was carrying in her hand. She held to the pocket book and struggled to retain it. The defendant succeeded in wrenching it from her hand and ran as the woman screamed and called "Stop thief." Her cries were heard by two young men in the vicinity who ran after and overtook the defendant while he was on a sidewalk and they jumped upon and held him. A struggle ensued during which the defendant drew from his pocket a revolver and fired a shot which failed to hit either of the young men. They, however, released their hold upon the defendant and he continued to run in the direction in which he had been running and the young men followed him. After running about two hundred feet from where he fired the first shot he came toward a policeman who had been attracted by the shot and was then running towards the defendant from the opposite direction, and when the defendant met the policeman or came within about five feet of him he fired a shot which caused the wound resulting in the policeman's death about two hours thereafter. The defendant then continued running and the young men came upon the policeman as he staggered into the gutter and they called upon him for his revolver, which he produced from his pocket and gave to one of them and he gave his night stick to the other. They followed the defendant and the one with the revolver fired in the air or at the defendant five times without hitting him. The defendant continued with the young men and others following him until