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must set forth the facts stated by the prosecutor and his witnesses tending to establish the commission of the crime and guilt of the defendant. By this section the depositions must be in writing, and subscribed by the parties making them. Upon these depositions warrant of arrest issues. Section 188 then provides that, when the defendant is brought before the magistrate upon an arrest on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him, and of the right to the aid of counsel in every stage of the proceedings and before any further proceedings are had. Section 194 provides that at the examination the magistrate must in the first place read to the defendant the depositions of the witnesses examined on the taking of the information, and, if the defendant requests it or elects to have the examination, must summon for cross-examination the witnesses so examined if they be in the county. Section 200 provides that the statements made by the defendant must be reduced to writing by the magistrate or under his direction, and authenticated as therein provided. Section 204 provides that the testimony given by each witness must be reduced to writing as a deposition by the magistrate or under his direction and authenticated in the following manner: First, the authentication must state the name and age of the witness, his place of residence, and his business or profession. It must, unless a deposition by question and answer be waived by the defendant and the witness, contain the questions put to the witness and his answers thereto. It must also contain any objections taken by either side and overruled, and the deposition must be signed by the witness, or, if he refuses to sign it, his reason for refusing must be stated in writing, as he gives it. It must be signed and certified by the magistrate. And it is then provided in subdivision 6:

"The foregoing provisions shall apply to preliminary examinations in the city and county of New York only when either the defendant or the district attorney or the representative of the district attorney, shall so elect."

Reading these sections together, we have to determine what was intended by the Legislature by the words, "and the testimony reduced by him to the form of a deposition in the presence of the defendant who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness," in section 8 of the Code.

It seems to me clear that in a county other than New York the deposition referred to was a deposition reduced to writing as required by section 204 of the Code, but in the county of New York such a deposition was not required unless either the district attorney or the defendant requested it. The defendant had the right to have the testimony of the witness reduced to the form of a written deposition and authenticated by the signature of the witness and by the magistrate, but he could waive that right, and in this case did waive it by not requiring it. Consequently the testimony of the witness was taken down by the stenographer, an official duly appointed, whose duty it was to take down in shorthand writing the questions and answers propounded to each witness produced before the magistrate, and were so taken down in the presence of the witness and of the defendant, and in a condition to be properly authenticated. The shorthand notes of this examination became a part of the proceeding before the magistrate, and, although not literally transcribed in longhand, there was an authentic record of it as part of the proceeding before the magistrate. Section 8 of the Code does not require the deposition to be in writing subscribed by the witnesses or authenticated by the magistrate. All it requires is that the testimony should be reduced by the magistrate to the form of a deposition in the presence of the defendant. I think it was undoubtedly reduced to the form of a deposition by the stenographer acting under the direction of the magistrate in taking down each question and answer made by each of the witnesses who testified before him. It had not been transcribed from his notes in writing. It had not been signed by the witnesses. It had not been authenticated by the magistrate; but neither of these acts were required in the county of New York, and the testimony of the witnesses stood in the stenographer's minutes as part of the minutes of the magistrate on the examination. And thus it seems to me that the testimony had been reduced to the form of a deposition. If the testimony had been taken down in longhand instead of shorthand by the stenographer, and the writing was before the magistrate, there could be, I think, no doubt but what the deposition of the witness would be admissible upon the trial, although it had not been signed by the witness nor authenticated by the magistrate. If the defendant had requested that the testimony thus reduced to the form of a deposition by the stenographer should be written out and properly authenticated, it could have been done. He made no such request, and therefore waived the provision of the Code which required it to be so written out and so authenticated. Thus the testimony of the witness had been reduced to the form of a deposition in the presence of the defendant, and therefore the condition provided for by subdivision 3 of section 8 of the Code of Criminal Procedure had been complied with. The object of this section of the Code was to enforce the rule that seems to be settled by the authorities to which attention has been called, that, where a written deposition existed, the writing was the best evidence, and must be produced and oral testimony of what the witness had testified to was inadmissible; or, where there had been no written deposition, the testimony could not be received, unless the witness could testify to the exact language used by the witnesses and all of his testimony. So, when this provision of the Code was enacted, it was intended to restrict the use of testimony taken on preliminary examination at the trial to a case where there had been a complete record made of the testimony of the witness, so that a prisoner should not be exposed to the uncertainty of recollection of persons who had heard the witnesses testify. But in all proceedings in the county of New York either before magistrates or courts of record the law provides for a complete stenographic report of the proceedings had, and it is upon the substantial accuracy of these reports that all judicial proceedings are based. Therefore the intent of this provision is fully preserved by holding that, when testimony in a judicial proceeding is thus recorded by an official stenographer, his record of the proceeding when subsequently transcribed furnishes the very best evidence of the exact testimony of a witness whether the proceedings are before a court or magistrate. In this case the rights of the defendant were fully protected. He was confronted by the complainant before the magistrate, the testimony of the complainant was taken in the presence of the defendant, and transcribed in his presence in the notes of the stenographer, and he had the fullest right to crossexamine which the record shows he exercised, and each question and answer of the witness was taken down by the official stenographer, and thus was taken in the form of a deposition. The writing out of the testimony from the notes of the stenographer was a detail which the defendant could have insisted upon but which he waived by failing to request, and on the subsequent death of the complainant the fact that the notes had not been transcribed in the presence of the defendant was not a substantial objection to the introduction of the evidence.

[5] The only other objection by the defendant that it is necessary to notice is the exception to the testimony that early in the morning of December 11, 1911, the threat having been made in the afternoon of December 9th, a bomb exploded at the door of the complainant's apartment, and it is claimed by the defendant that the court committed substantial error in allowing the proof of the fact of this explosion. I think, however, that, in view of the situation as it existed in this case, this evidence was competent. On Saturday afternoon the defendant demanded of complainant this sum of $500, and threatened if the money was not paid he would blow the complainant's head off. On Monday morning, December 11th, an attempt to "blow the complainant's head off" was made, and on the same day at half-past 7 in the morning the defendant was arrested. The officer told the defendant that he was arrested on suspicion of having caused the explosion of a bomb at 2 a. m. that morning in front of Mr. Blumenthal's (complainant) apartment on the fifth floor of 102 Henry street, "for the reason that Mr. Blumenthal said that you went down to his place of business at 65 Rutgers Slip on the 9th of December, and demanded $500 from him under a threat to blow his head off." The officer then asked the defendant, "Now did you go down and demand that money and make that threat?" Defendant said, "I did. I was sent down by two men." And when the officer said, "Who are these men?" the defendant replied, "I don't know. They gave me a dollar." Within a few hours the defendant was arrested, admitted the making of the threat, said he was employed by two men to make the threat, and paid a dollar for making it, but failed to identify the men, or give any information which would lead to their arrest. The de fendant, when called to the stand, admitted having a conversation with the complainant on the afternoon of December 9th, but denied that he made any threat to blow the complainant's head off, but said that the conversation had relation to stopping a fight, and that two men whom he again failed to identify, claiming that he knew nothing about them, had paid him a dollar for making the communication that he did to the complainant. What the defendant threatened to do was to blow the complainant's head off. According to the threat "I" was to do the act unless the complainant paid him $500. The complainant refused to pay the money, and there followed within 36 hours an explosion which was designed to carry out the threat. It seems to me that it was a material fact to be proved that an explosion, which was just what the defendant had threatened, actually took place shortly afterwards, and the result of which attempted to make effective the threat which was made. As a fact which would tend to throw light upon the intent of the defendant in making the threat, it seems to me that this testimony was entirely competent. Whether it is called part of the res gestæ or an independent fact which has probative force in proving that the defendant attempted to commit the crime of extortion on the afternoon of December 9th it is not material to determine. My view of it is that it was a fact which in itself tended to prove that the defendant did make a threat on the afternoon of December 9th for the purpose of extorting money from the complainant, and that the explosion followed as the natural result of the refusal of the complainant to comply with the defendant's demands.

The principle upon which I consider this testimony admissible is stated by the learned author of Wigmore on Evidence (section 105) as follows:

"Where one threatens to do an injury to another and that or a similar injury afterwards happens, this furnishes ground to presume that he who threatened the act was the perpetrator or instigator."

In People v. Kennedy, 32 N. Y. 141, the defendant was indicted for the crime of arson in burning the barn of one Marshall on the 27th of August, 1863. The evidence connecting the defendant with the actual burning of the barn was that about a fortnight before the fire he had threatened to have revenge upon Marshall, to burn and damage his property all he could, and burn his buildings, and he also threatened him with personal injuries. Chief Judge Denio, in commenting upon the probative force of the testimony of these threats, said:

"This, it may be conceded, raised a presumption of some weight that he had burned the barn. It was presumedly fired by some man who had malice against Marshall, the owner. A presumption of the same kind and of the same status arose out of the same circumstances that he had attempted to burn the woodhouse and dwelling."

And it was not suggested that the evidence was not competent. In Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492, the defendant offered to prove that the deceased a short time before the occurrence had made violent threats against him. Evidence of threats made by the deceased which had been communicated to the accused was received by the court, but evidence of threats which had not been so communicated was rejected. This was held to be error, and the court said:

"For the reason that threats made would show an attempt to execute them probably when an opportunity occurred, and the more ready belief of the accused would be justified to the precise extent of this probability. But an attempt to execute threats is equally probable, when not communicated to the party threatened as when they are so; and when, as in this case, the question is whether the attempt was in fact made, we can see no reason for excluding them in the former that would not be equally cogent for the exclusion of the latter, the latter being admissible only for the reason that the person threatened would the more readily believe himself endangered by the probability of an attempt to execute such threats. Threats to commit the crime for which a person is upon trial are constantly received as evidence against him, as circumstances proper to be considered in determining the question whether he has, in fact, committed the crime, for the reason that the threats indicate an intention to do it, and the existence of this intention creates a probability that he has in fact committed it."

See, also, Jewett v. Banning, 21 N. Y. 27.

The rule is therefore established that a threat to do an action is competent evidence to show that the person making the threat intended to carry it out. In the Stokes Case, supra, the threat held competent was that the deceased intended to injure the defendant, and that was held competent as a fact having probative force to prove that the deceased did intend to do what he threatened. We have here a threat to blow the complainant's head off. It seems to me that the threat having been proved that it was competent to prove that the defendant was connected with the subsequent attempt to accomplish what was threatened. It seems to be conceded that, if there had been any evidence to show that the defendant was connected with the explosion, then the fact of the explosion would have been competent; and yet this testimony of the threat was competent evidence to prove that the subsequent explosion was committed by the defendant, or that he was connected therewith. The threat was that he, the defendant, would blow the complainant's head off. It was not that somebody else would do it, but that he would do it, and if the fact that the defendant did subsequently attempt to carry out his threat would have been competent evidence to show the intent with which he made the threat, and, if making the threat was competent evidence to show that he had been connected with the explosion, the fact that there was an explosion was competent evidence to prove the intention of the defendant to extort money from the complainant. With the probative force of the testimony we are not concerned. The only question here is whether it was error to admit the testimony, and I think it was not.

[6] If the defendant had succeeded in extorting this $500 from the complainant by reason of this threat, it would have been, I think, clearly a felony under sections 850 and 851 of the Penal Law. Section 857 of the Penal Law expressly provides that this section was not to apply to matters governed by section 851, and the court therefore properly sentenced the defendant as for a conviction of a felony. The other points taken by the defendant do not require discussion. My conclusion, therefore, is that the judgment appealed from should be affirmed.

LAUGHLIN and DOWLING, JJ., concur.

SCOTT, J. (dissenting). I concur entirely in the opinion of the Presiding Justice, except as to the admissibility of the evidence showing that after the making of the alleged threat some unknown person placed a bomb in the apartment occupied by the complaining witness. The alleged threat to "blow off the head" of the complainant if he refused to submit to extortion was made on a Saturday afternoon.

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