that are under the name of Jacob Cornelius, Jr. You may ask him, however, if he made those statements in view of the fact of these corrections." While the confusion caused by the coroner's interlineation of the name "Thomas Cornelius, Jr.," in his minutes does not appear to have been very satisfactorily cleared up, it is evident from the trial court's concluding sentence above quoted that the defendant's counsel was in fact not deprived of any opportunity to cross-examine Jacob Cornelius. The only limitation imposed by the court was one that seems to have been proper under the circumstances, and we, therefore, conclude that this ruling was not erroneous or prejudicial to the defendant.

It is further urged that the defendant was deprived of a substantial right in the denial of his motion to dismiss the indictment upon which he was tried. This motion was made, not at the trial of the defendant, but at a previous term of the court held by Mr. Justice DAVY, and upon three separate grounds: 1. That improper and illegal evidence was introduced before the grand jury. 2. That the statements of two unsworn witnesses were received by the grand jury without any effort by the court to ascertain whether these witnesses, being children under twelve years of age, understood the nature of an oath, and, if not, whether they were possessed of sufficient intelligence to justify the reception of their evidence. 3. That the legal evidence produced before the grand jury was insufficient to warrant the finding of an indictment. Neither of the grounds upon which this motion was made is recognized by the Code of Criminal Procedure (Sec. 313) as a sufficient reason for setting aside an indictment; but in the case of People v. Glen (173 N. Y. 400, 17 N. Y. Crim. 225), we had occasion to pass upon the validity of that section. It was there decided to be clearly within the legislative power to restrict the grounds upon which such a motion could be made, so long as the restraint imposed related solely to matters of practice or pro

cedure, but that the section referred to was not intended to affect, and could not curtail, any of the constitutional rights of an indicted defendant. At least two of the grounds upon which the motion was made to dismiss the indictment herein do relate to the defendant's constitutional rights, for a grand jury can receive none but legal evidence (Code Crim. Pro. sec. 256) and should only find an indictment when all the evidence, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by a trial jury. (Code Crim. Pro. sec. 258.) Whenever it clearly appears, therefore, that the legal evidence received by a grand jury is insufficient to support an indictment; or that illegal evidence is the sole basis for an indictment, the person indicted has a constitutional right to make a motion to dismiss, notwithstanding the provisions of the Code to the contrary. The right to make a motion upon these substantial grounds, and to have it decided in the first instance, necessarily implies the right to have a review of an adverse decision, at least in the absence of any statutory limitation, and so we will treat this as one of the questions that may be reviewed by this court upon appeal from a judgment of conviction in a capital case. While this somewhat extended preliminary discussion of the question is pertinent upon the defendant's right to have a review of the denial of his motion to dismiss the indictment, it is really of little practical importance when considered in the light of the record. The averments of the affidavits upon which the motion was made were vague and unsatisfactory. The court's attention was directed to no illegal evidence that was presented to the grand jury, and the very general charge that the evidence was insufficient is supported by no direct or infinite statement. In short, the moving affidavits are simply a collection of the broadest generalizations stated upon information and belief. The learned trial justice before whom the motion was made had the minutes of the grand jury before him. He decided that the

evidence was sufficient to sustain the indictment, and that none of the evidence was illegal. That decision is clearly supported by the record before us, and it is also fortified by the presumption that an indictment is found upon legal and sufficient evidence. (People v. McIntyre, 1 Parker's Cr. Rep. 372; U. S. v. Wilson, 6 McLean, 611.)

There is yet another phase of the motion to dismiss the indictment that needs to be briefly considered. It is said that two of the children of the defendant, one of them nine years of age and the other only six, were witnesses before the grand jury, although they were neither sworn nor examined by the justice who presided at the term during which the indictment against the defendant was found. The Code of Criminal Procedure (Sec. 392) provides that "whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence." As we understand the argument of the learned counsel for the appellant it is, in substance, that the evidence of these children could not legally be received by the grand jury until after such a preliminary examination as is provided for in section 392, and that no one had the right to make that examination but the justice who presided at that term of court. If we assume for the instant the soundness of counsel's contention, that does not affect the validity of the indictment. The justice before whom the motion to dismiss was made and who examined the grand jury's minutes decided that there was sufficient other evidence to sustain the indictment. That is in accord with the general rule which is well expressed in Underhill's work on

Criminal Evidence (Sec. 26), as follows: "The fact that some incompetent evidence was received in connection with competent evidence, or an incompetent witness examined, is not ground for quashing, an indictment, for these errors may be corrected upon the trial." But we do not think it is necessary to dispose of the question upon this last-mentioned ground. A grand jury, although for some purpose a part of the court in connection with which it is convened, is in some aspects a separate and independent tribunal, free from the restraint of the court, and at liberty to decide upon its own methods of procedure in so far as they are not controlled by statute or immemorial usage having the force of law. One of the attri butes and powers of this independent existence is to decide when and in what order witnesses shall be called, and, to some extent, who shall be called. For all the ordinary purposes of procuring evidence a grand jury is a distinct body clothed with authority to conduct the examination of witnesses in any way that does not conflict with established legal rules. The court has no general control over witnesses summoned before a grand jury except to punish them for contumacy or contempt, and we cannot see upon what theory it could be held that a grand jury has not the power to determine for itself the qualifications of witnesses of tender years so long as there is due observance of the statutory safeguards enjoined upon other tribunals in similar circumstances. It requires no violent stretch of language or of legal rules to apply the terms of the statute (Code Crim. Pro. sec. 392) to grand juries as well as to courts and magistrates, and when that is done it ends the discussion here, for we are informed by the district attorney's affidavit that the statute was literally complied with in the examination of these children. The statute authorizing the reception of the unsworn testimony of children under twelve years of age is not in derogation of any constitutional right of a citizen. (People v. Johnson, 185 N. Y. 228, 20 N. Y. Crim. 109.)

Other matters are pressed upon our attention by the able and zealous counsel for the appellant, but we do not regard them as of sufficient importance to justify the further continuance of this discussion. Having reviewed this case with a full realization of the solemn responsibility that attends an issue of life and death, our duty compels us to decide that the evidence is sufficient to support the judgment of conviction herein, and that the record discloses no errors which will warrant the reversal of that judgment.

CULLEN, Ch. J., GRAY, HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur; VANN, J., not voting.

Judgment of conviction affirmed.