I did not participate in the trial, the alleged errors in the trial as argued in the Court of Appeals were that upon the trial the defense offered in evidence, and it was received, evidence of three or more personal threats made by the deceased against the defendant. The defense was selfdefense, and therefore it was proper under the ruling of the Stokes case that although these threats were made without the knowledge of the defendant, they were competent. No other evidence was given excepting the specific threats, and still the trial Judge in that case permitted evidence to be given by the District Attorney as to the general character of the deceased, his quarrelsome and vindictive disposition. An exception was taken to that. It was overruled at the Appellate Division and discussed in the Court of Appeals. Another question was raised under section 425 of the Penal Code where it is provided what papers the jury may take with them and it says: "The Court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people." This killing was by a pistol and the pistol was offered in evidence; but it seems there was an interval of six or eight months between the killing and the trial, and it was disclosed that the pistol had become somewhat rusty and that the action was considerably harder than when it was in good condition. Therefore, when the question was asked by the District Attorney whether or not the jury might take that pistol into the jury room, the defendant's counsel objected, and the Court refused to permit them to have the exhibit. After the jury had retired and deliberated for four or five hours, they said to the constable in charge: "Can you give us that pistol?" The constable

said: "I think I can." He went into the court room, took it out of the clerk's desk and carried it in and allowed them to have it, and when they came in with their verdict that fact became disclosed to the defendant's counsel, and they moved to set aside the verdict for the misconduct of the jury, and that motion was supported by the affidavit of the constable who delivered the pistol. The ruling permitting them to prove the general character of the deceased was an absolute violation of two cases, wellauthenticated cases, in the Court of Appeals. These two errors were absolute and complete and usually would, in the mind of the average lawyer, be considered sufficient to reverse the judgment. Let us see what the Court of Appeals did. The Court of Appeals in their memorandum said: "Judgment of conviction affirmed upon the ground that the evidence against the defendant was so clear and conclusive that the errors complained of may be safely disregarded under section 542 of the Code of Criminal Procedure." Of course, I, as every other lawyer not smarting under defeat, am satisfied, as I consider the judgment of the Court of Appeals and the record of that case, that the Court of Appeals was entirely right. So far as my experience goes in such cases the Court of Appeals are not governed at all by technical rules, and I do not now have in mind any particular case that they have reversed for any technical ruling either in the admission or rejection of evidence or in the exception to the Judge's charge. So far as the civil cases go as to the admission of improper evidence, Allen, J., in Baird v. Gillette (47 N. Y.), said: "The evidence was improper and as the Court cannot say it might not have biased the jury and influenced the result, its admission under the objection was an error for which the judgment should be reversed." Again he says:

"If the evidence could not possibly have injured the defendant, the error might be disregarded, but when illegal evidence is admitted which bears the least degree on the result, it is fatal." Then Judge Rapallo said, in another case in the Court of Appeals: "It is possible the evidence excluded may not in this case have materially affected the result, but to cure the errors on that ground it must appear as a matter of law that the result could not have been thus effective." This resolution or suggestion says: "No judgment shall be set aside or new trial granted in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the Court to which the application is made, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." I would like to know where the Courts have decided in this State otherwise. Where is there a rule that tends to put a different construction upon that rule of law which has obtained in this State for more than eighty years? On the question of the Court's charge in the case in which Judge Allen wrote the opinion, that was an action brought against a physician for malpractice. It seems upon the birth of a child he had neglected to attend properly to the child's life and disease followed, they say as the result of his negligence, by which the child lost its sight. An action was brought by its guardian for damages for that neglect. Upon the trial, and for no other purpose in the world than to have it appear to the jury that the physician. was impressed with his wrongdoing, the question was asked: "Did this defendant ever present you with a bill?" That was objected to as improper and not bearing prop

erly upon the issue, and for the admission of an answer to that question Judge Allen reversed the case in the Court of Appeals, or, rather, the Court of Appeals reversed the case and Judge Allen laid down this rule which has always been the rule within the memory of the oldest practitioner here. In the case of the People v. Benham, which probably was one of the most important criminal trials in this State in years, as reported in 160 N. Y., in which the conviction was affirmed, there are ten or fifteen requests made by the counsel for the defendant which the trial Judge refused to charge, some of them pretty close to the line; but the Court of Appeals, in discussing the question, felt that the defendant was not in any wise prejudiced by the Court's refusal to charge, and affirmed the judgment. But in the case of the People v. Barone (161 N. Y.), where the trial Judge undertook to discuss evidence and made a statement of fact which was hardly borne out by the facts, or it was the conclusion on the facts which he stated to the jury and an exception taken to that, the Court of Appeals reversed that judgment for that misdirection. It seems to me there is no real necessity for any amendment. The courts are abundantly able on review to protect the rights of litigants, and it seems to me that so far as technical exceptions are concerned they are held in very poor regard by the Court of Appeals.

A Member:

Has this recom

I want to ask Mr. Wheeler a question. mendation been passed upon by any committee of this Association?

Everett P. Wheeler, of New York:

It is to be referred to a committee.

J. Aspinwall Hodge, of New York:

It is to be referred to a committee with a request that they draw up certain amendments, not that they consider the advisability of drawing up an amendment.

The Chairman:

The matter has not been passed upon, but it is a question suggested for discussion at a joint meeting of the Executive and Law Reform Committees.

A Member:

That is all I wanted to know. Then it seems to me to be an extremely ill-advised thing for this Association, upon the suggestion of the President, high as his position. is and worthy as he is, on his mere suggestion, without that deliberation which a matter of this sort ought to receive, by any committee of this body for any period of time whatever, to take a step which it seems to me is absolutely revolutionary in our system of appeals and which will throw the question of what is reversible error in such confusion as to render uncertain what is now more or less certain; such action ought not to be taken by this body or any other body. It may be there are men who are able to make corrections to our system of common law which has existed for many years and to decide a question of this importance in mass meeting, or in the Executive Chamber, but it does not seem to me it is worthy of the State Bar Association to do it without at least one year's consideration. It seems to me, therefore, a resolution referring this whole matter to the Committee on Law Reform for consideration to report at the next meeting of the Association is the appropriate resolution that should be passed at this time, and I offer that resolution.