injury, the jury must acquit the defendant." It will be seen, therefore, that if the request which was refused referred to the threats that the defendant testified were made immediately preceding the shooting, and the court did not so understand it, and so stated to counsel, the subject-matter of it had already been fully and fairly covered in the charge in chief, and the defendant was not entitled to have it again charged, and it necessarily follows that the refusal to charge as requested was not error.

The other exception relied upon for the reversal of the judgment was taken to a ruling of the court refusing to allow a witness, who was called to prove that the general reputation of the deceased for violence was bad, and who said on cross-examination that he had had a little trouble with the deceased, to state on his redirect examination what that trouble was. That evidence tending to show specific acts of violence towards the witness is inadmissible is well settled. In People v. Druse, 103 N. Y. 655, 8 N. E. 733, the judgment under review convicted the defendant of murder in the first degree, and the court said: "The rule is that, after evidence has been given by a defendant tending to show that the homicide was committed in self-defense, he may follow it by proof of the general reputation of the deceased for quarrelsomeness and violence. But a defendant is confined to proof of general reputation, and evidence of specific acts of violence towards third persons is inadmissible." Citing People v. Lamb, 41 N. Y. 360, 371; Eggler v. People, 56 N. Y. 642, and Thomas v. People, 67 N. Y. 218. But the contention is, as I understand it, that while evidence touching any trouble with the witness was not admissible as evidence in chief, yet the door was opened for its admission by the cross-examination. The witness testified on his direct examination, in effect, that the general reputation of the deceased in the community for violence was bad, and the character of this testimony was such as naturally led the learned district attorney, who conducted the trial with ability and at the same time with a careful observance of the rights of the defendant, to cross-examine the witness as follows: "Q. You have considerable feeling against the deceased, I should judge? A. Yes, sir; I don't like him, because he treated me very badly. I treated him well. I gave him to eat and to drink. Q. Then you had a little trouble with him yourself? Answer 'Yes' or 'No.' The Interpreter: He says, 'He nearly killed me in his room.' He says he had. He says, 'Yes.'" It will be observed that the district attorney was attempting to show, as was his right on cross-examination, bias on the part of the witness; but he was careful to avoid any inquiry as to whether the deceased or the witness was at fault. He contented himself with showing a feeling of hostility on the part of the witness towards the dead

man; but, notwithstanding that his question confined the witness to the answer, "Yes," or "No," as to whether he had had trouble with the deceased, the interpreter said that the witness replied to one of the questions, "He nearly killed me in his room," and the defendant's counsel quickly seized upon this answer, which was not called out by the district attorney, as an excuse to get before the jury an occurrence which he well knew he had no right to prove. His ruse is apparent from the fact that, instead of claiming that the evidence was competent generally, he said to the court, in response to its ruling that the evidence was not admissible: "I submit he [referring to the district attorney] has opened the door." There would have been some foundation for this claim, had the district attorney called out the statement of the witness that the deceased nearly killed him in his room; but, as we have observed, nothing of the kind was done. On the contrary, the question in terms confined the witness to the answer, "Yes," or "No," to the query whether he had had trouble with the deceased, and he was therefore not responsi ble for the statement interjected by the witness, and hence there was no foundation for the claim of counsel that such interjection constituted such an opening of the door by the district attorney as would let in the history of a transaction otherwise inadmissible.

On the way to this point I have said, as one step in the argument in support of the ruling of the trial court, that it was the right of the district attorney to inquire of the witness, on cross-examination, whether he entertained ill feeling towards the deceased. This is so because the direct testimony of the witness was directed to the inquiry whether the deceased had a general reputation for being violent. His general reputation, therefore, in this respect, and in this respect only, was at issue, and to that extent the district attorney was called upon to defend his general reputation. The witness having testified that the general reputation of the deceased in this respect was bad, the district attorney was at liberty to inquire whether the witness had any ill feeling against the dead man. Whether this ill feeling were well founded or without any reasonable basis was of no moment, for it was sufficient for his purpose to prove that he was prejudiced against the dead man, that such fact might be considered by the jury in determining the weight that should be given to his testimony. Rapalje's Law of Witnesses (page 338) states the rule as follows: "If the witness admits on crossexamination that he entertains unkind feelings towards the party, it seems that he cannot be asked the cause of those feelings. Prejudice may be shown, but the facts and circumstances causing such prejudice cannot be stated in detail." In 1 Thomp. Trials, p. 398, it is said: "The rule is that the witness

may be interrogated as to the 'state' of his feelings towards one of the parties, but that it is not competent to inquire into the 'cause' of such feelings." In State v. Glynn, 51 Vt. 577, it was held that the inquiry put to the witness as to whether he is unfriendly to the party against whom he has testified is so far, collateral to the issue that detail will not be permitted, but only the inquiry whether he is unfriendly or not. In Polk v. State, 62 Ala. 237, it was held that the enmity or unfriendliness of a witness to the person against whom he testified may be shown, to enable the jury the better to determine, in connection with other evidence, what weight should be accorded to the witness, but that it is not permissible to prove the details of a quarrel or difficulty which gave rise to the enmity or unfriendliness. In Conyers v. Field, 61 Ga. 258, a witness who had testified against the plaintiff on crossexamination testified that he had unkind feelings towards the plaintiff. The defendant thereupon insisted that it was his right upon redirect examination to ascertain the cause of those feelings, and the witness was permitted, against the objection and exception of the plaintiff, to give the details of the trouble between him and the plaintiff. On appeal this was held to be error, and the judgment in favor of the defendant was reversed. Other cases to the same general effect are Bishop v. State, 9 Ga. 121, Cornelius v. State, 12 Ark. 782, 800, and Butler v. State, 34 Ark. 480. Our attention has not been called to any authorities asserting a different rule. In People v. Buchanan, 145 N. Y. 24, 39 N. E. 846, this rule was not the subject of discussion. There the defendant, on cross-examination of the people's witness, inquired as to a conversation between the witness and the coroner, and the court justly said: "It was proper enough, and just, that the jury should be placed in possession of what the conversation actually was.

* Even if the cross-examination has been as to facts not admissible in evidence, the rule seems to be that the witness may be re-examined as to evidence so given." But in this case, as we have seen, the district attorney did not, on his cross-examination, inquire of the witness touching any transactions between him and the deceased, but, instead, kept well within the rule which entitled him, on cross-examination, to inquire of the witness whether he entertained hostile feelings towards the deceased. It follows that, if the view expressed be sound, the court was right in sustaining the objection. But if the rule were otherwise than as asserted by the cases cited, and any authority could be found for the proposition that a mere inquiry on cross-examination as to whether the witness was at enmity with the deceased operated to open the door, so as to let in on redirect examination evidence which this court asserted in People v. Druse, supra, was inadmissible, it would be our duty,

in obedience to the command of section 542 of the Code of Criminal Procedure, to disregard the error; for, if ever there was a case in which the evidence excluded could have no important effect upon the result, this is such a case. The judgment of conviction should be affirmed.

MARTIN and VANN, JJ., concur with LANDON, J., for reversal. BARTLETT, J., concurs with LANDON, J., on first ground stated in his opinion. O'BRIEN and HAIGHT, JJ., concur with PARKER, C. J., for affirmance.

Judgment of conviction reversed, etc.

(163 N. Y. 276) FLOUR CITY NAT. BANK v. WIDENER et al. (Court of Appeals of New York. June 5, 1900.) PARTNERSHIP

PURCHASE

OF PARTNER'S SHARE ASSUMPTION OF FIRM INDEBTEDNESS.

Defendant purchased the interest of one of two partners in the firm business, subject to the firm debts. A note executed in the name of the new firm by the partner who had also been a member of the old firm was given to plaintiff in renewal of a note of the old firm. The partner who renewed the note informed plaintiff that defendant was a member of the new firm. The books of the new firm, to which defendant had access, showed the renewal note to have been executed by the new firm. Held that, though defendant did not actively participate in the firm business, he is chargeable with what the books would have revealed, and hence estopped to deny that the transaction was without his knowledge or consent, and is liable on the renewal note.

Appeal from supreme court, appellate division, Fourth department.

Action by the Flour City National Bank against Charles A. Widener and others. From a judgment of the appellate division (48 N. Y. Supp. 492) overruling said defendant's exceptions, denying his motion for a new trial, and ordering a judgment for plaintiff on a verdict directed by the trial judge, he appeals. Affirmed.

Horace L. Bennett, for appellant. Joseph S. Hunn, for respondent.

BARTLETT, J. The material facts out of which this controversy arises are as follows: Smith & Petrie were engaged in the wall-paper business in the city of Rochester from 1890 to May 23, 1894. During that time they kept a bank account with the plaintiff. On the 21st of March, 1894, the plaintiff discounted a note of the firm, payable in three months, for $500. The proceeds of this discount were used in the business of the firm. On the 23d of May, 1894, by a written agreement between the parties, Petrie sold and transferred to the defendant Widener his interest in the firm of Smith & Petrie, including the goods, stock, fixtures, accounts, and other property specifically enumerated. The agree

ment, among other things, stated, "This transfer is made subject to all existing debts and demands due and to become due by said firm, which is hereby covenanted and agreed does not exceed the sum of three thousand dollars." It was agreed that the property transferred would inventory at a sum not less than $8,000. Widener paid for the property by a conveyance of certain real estate, and a cash payment of $200. The note referred to fell due in June, 1894, and was renewed by Smith, who signed the renewal note in the name of the firm of Albert E. Smith & Co., the style under which Smith and Widener continued the business. Smith testified that when this note was taken to the bank the officer who passed upon the transaction remarked that there had been a change in the firm, and asked if Widener was now interested in the business. He also asked if it was Widener, the lawyer in the Arcade Building. These inquiries were answered by Smith in the affirmative. It thus appears that Widener's credit was an element in the renewal of the Smith & Petrie note. In September, 1894, when this last note fell due, it was renewed in like manner. On the 4th of December, 1894, Widener sold out his interest in the firm to Smith, and the latter made a general assignment for the benefit of creditors the same day. When the last renewal note fell due, on the 23d of December, 1894, payment was demanded by the plaintiff and refused, and thereupon this action was begun against Smith, Widener, and two indorsers of the note. Widener defends this action on the ground that he received the transfer of the firm property from Smith & Petrie subject to all existing debts and demands due and to become due by said firm, but that the provisions of the written agreement created no personal liability as to him for the debts of the old firm. It is argued on behalf of Widener that he occupies the same position as the grantee of real estate who purchased subject to a mortgage incumbrance, but does not covenant to pay the same. It is not necessary to consider this point, as it appears that the matter of the renewal of the original note of March, 1894, in the following June and September, was a matter of entry in the books of the firm of Albert E. Smith & Co.

Widener's contention is that he had nothing to do with the business, although a general partner. He testified: "I did practically nothing in reference to the business in which I had bought an interest. Smith continued to conduct the business, and I continued to practice law. I had no knowledge of the state of the accounts between the bank and that firm; none whatever. In fact, I did not know that he had a bank account with the bank at all. *

*

I have never had any conversation with Smith on the subject of his signing the firm name of Albert E. Smith & Co. to that note. I did not know that he had done it at the

time that he did it. I first learned that he had done so at the time he made the general assignment in December, 1894. I did not give him permission to sign the firm name to that note. * All that I knew of

the conduct of the business of Albert E. Smith & Co. during 1894 was that once in a while I would stop at the store, passing it in the morning, and speak to Smith, and he would mention once in a while some place where he was doing some work; and that is substantially all that I knew about it. I left the conduct of the business entirely to him." There is no doubt that a third person purchasing an interest in an old firm does not by that fact alone become liable for its debts. The purchaser, however, may make himself liable, either by direct agreement, or by such transactions on the part of the new firm of which he is a member, and of which he is chargeable with notice, as to work that result. Where a member of a firm has access to its books of account, he is presumed to know their contents. Fairchild v. Fairchild, 64 N. Y. 471, 480; Hotopp v. Huber, 160 N. Y. 524, 530, 55 N. E. 206. The undisputed evidence establishes that from June 23, 1894, until Widener sold out his interest in the firm to Smith, in December following, the books of Albert E. Smith & Co. showed that the name of that firm had been used in renewing paper discounted by the plaintiff as before stated. The fact that Widener was engaged in another occupation, and saw fit to allow Smith to manage the business, does not in any way change his legal position towards the plaintiff. Widener admits that he occasionally called at the place of business and talked with his partner as to matters in hand. As a general partner, he had full access to the books of the firm, and is chargeable with whatever those books disclosed. If he had examined them. he would have ascertained the facts already detailed in regard to these discounts; and, that being so, he is chargeable in law with whatever he would have discovered had he made the examination. He is therefore estopped to deny that these transactions were without his knowledge or consent. In Peyser v. Myers, 135 N. Y. 599, 32 N. E. 699, Judge Andrews said: "It is indisputable that an incoming partner is not, as of course, liable for the debts or transactions of the firm, and that he can be made liable in an action at law by the creditor only by some agreement on his part to assume such liability. The mere fact that he becomes a member of the firm creates no presumption of the existence of such agreement. The fact, however, may be established by indirect as well as by direct evidence, and may, in the absence of an express agreement, be inferred from the facts and circumstances which justly raise an implication of its existence. Serviss v. McDonnell, 107 N. Y. 264, 14 N. E. 314; Hannigan v. Morrissey (N. Y. App.) 27 N. E. 402; Lindl. Partn. p. 208." In the case cited, while an existing

firm was indebted to an estate a new firm was formed under the same name, by bringing in a new partner. The latter knew of the existence of the debt, but not the amount thereof, and he made no inquiry. He contributed no capital to the new firm, had none except the stock and assets of the old firm, and the business was conducted after he became a member precisely as before. The debt to the estate was credited to the execu tors on the books of the new firm. They were subsequently credited with interest aceruing, charged with goods and money paid, and statements of the accounts were rendered to them. The court held that the new partner was charged by reason of these facts. There is no conflict of evidence regarding the material facts in the case at bar, and consequently there was no error in the learned trial judge directing a verdict for the plaintiff, and ordering the exceptions to be heard at the appellate division. The judgment appealed from should be affirmed, with costs.

PARKER, C. J., and O'BRIEN, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur. Judgment affirmed.

(163 N. Y. 312)

PEOPLE v. MULLEN.

(Court of Appeals of New York. June 5, 1900.)

HOMICIDE-INSTRUCTIONS-CROSS-EXAMINATION.

1. A memorandum was found on accused foretelling the death of his wife and himself by his own haud, and on the trial for the murder of his wife he stated that she was to be the murderer, and the writing was to save her from the consequences of her crime should her courage prove insuflicient for her self-execution after taking his life. Held, that an instruction leaving to the jury whether they would accept the written memorandum, or his statement on the trial exonerating himself, as to who was the murderer. was not erroneous, as treating the memorandum as a narrative of the commission of the crime instead of evidence of an intention, where the memorandum was subsequently referred to as the one which accused wrote previous to the homicide.

2. The allowance of too great latitude in cross-examination is not reversible error, where the questions of which complaint is made did not elicit answers injurious to accused.

Appeal from supreme court, trial term, New York county.

Joseph Mullen was convicted of murder, and he appeals. Affirmed.

William F. Howe, for appellant. Charles E. Le Barbier, Asst. Dist. Atty., for the People.

PARKER. C. J. Shortly before midnight on the 3d of June, 1898, Officer Hampshire, of the New York police force, while standing on the corner of Seventy-Ninth street and Riverside drive, heard a noise and a cry for police. Running in the direction from which the sound came, he soon found himself in

the basement area of number 331 West Seventy-Eighth street, and, looking through an iron gate which barred his entrance, he saw two figures,-one a woman in a reclining position, with her back towards the gate; the other a man standing and apparently looking out towards the street, from whose mouth a moment later came a gurgling sound, followed almost immediately by his falling across the woman. There were no other occupants of the room, and Officer Hampshire hastened up to the front door of the house, which was soon opened, and thence he quickly found his way into the basement, pulled the man off the woman, and laid him across the door sill. Though both man and woman were unconscious, both were living. By the side of the woman lay a revolver, and an examination disclosed that a bullet from it had entered the woman's neck on the right side, and after chipping off a portion of the vertebra had lodged just behind it, while another bullet had penetrated her left thigh, severing the femoral artery, and imbedding itself in the tissues. A third bullet had been fired into the mouth of the man, making an ugly wound, which resulted in unconsciousness,. but did not prove fatal. The woman died within a few minutes after the arrival of the officer. It was soon discovered that the parties were husband and wife, having been married on the 10th day of November, 1895. The man recovered from his wound, and an indictment was found against him, wherein he was charged with the crime of murder in the first degree; and on the trial it was shown that shortly after his marriage to Johanna O'Brien, in November, 1895, she drew out of the savings bank $300, and either gave or loaned it to him, after which he went to Ireland, returning to his wife after the money had been expended. They afterwards ap plied for and obtained in a family the posi tions of coachman and cook, respectively. After a few months of work, defendant was sentenced to the penitentiary, where he remained until three days prior to the homicide. Immediately upon his release, and on the 1st day of June, he called upon his wife, who was serving as cook in No. 331 West Seventy-Eighth street, under the name of Johanna O'Brien. He spent some portion of that day and evening and of the next with her, and on both evenings they went out walking together, but on the third the chambermaid wished an evening out, and so the cook stayed in, and her husband, the defendant. stayed with her. It was about 10 o'clock when the chambermaid returned, and she testified that she found the defendant and his wife sitting by the kitchen table, and she sat down in the room with them, where all remained until about half past 10 or 11 o'clock, when Johanna said to the defendant. "It is now time for you to go home." The defendant smiled, but made no answer, and together they started towards the basement stairs, which they descended, and then

the witness says they quarreled, although all she could remember having heard was a scream by the deceased, followed by an exclamation by her, "Oh, Joe!" after which she heard a pistol shot. The people also introduced in evidence a small book, which the police officer found in the defendant's pocket in a search made almost immediately after the officer took the defendant away from his wife and laid him across the sill. That book contained a memorandum in the handwriting of the defendant, which reads as follows:

"Dear Friend: Whoever you may be that finds us first, and finds this note, don't blame me. This sad affair is not my fault. My wife is as much to blame as me. I am doing this dreadful thing because I love my wife, and she will not do what I want her to do. She has been away from me for eighteen months, and I have asked her to go to look for a place with me as man and wife, and she will not do it, and she is causing me for things in the wrong, and she puts the blame on me and I put it on her. So she is not happy, nor I am not happy either. So I thought that, with my one hand, I would end her life and mine, in each other's arms. So she said it would be the best thing. Then we would be out of our troubles, and so I think that I can say no more in the matter, only that it is all love of my wife what made me do it. So I ask the world at large to forgive me for what I have done. It is better for us both, and I hope that the Lord will forgive me for doing this; and I ask one request, and that is to bury me and my wife by my side, as we were found. This is a very hard lot to write. My hand shakes so much so I have no more to say, only God bless all my enemies and everybody. I will put no address on this note. From a heartbroken husband.

"Joseph Mullen.

"Born in Ireland, in the county Derry, in the year 1870.

"And now it is my own life and my loving wife's with one hand. There are no jealousy in this case. The whole fault is my wife's mother that has brought all this on. The Lord forgive her, for she don't know what she is talking about no more, only that she and my dear love will be happy in heaven together. The people in this world won't let us be happy. Maybe the ones in the next will. This note, please take this to Mrs. O'Brien, No. 6 Cole street, Jersey City.

"June 3d, 1898."

The defendant was the only witness sworn on the part of the defense, and he testified that his wife did the shooting, that the revolver was hers, and that she told him that she had purchased the ammunition on that day. His version of the story was that his wife was very much discouraged as to their future, especially because of the fact that he was an ex-convict, and she insisted that people would not employ them, and if they were employed the story would come to the ears of their employers after a time, with

the necessary result of their being discharged. To his suggestion that they would not find it out, she insisted that her people hated him so that it was impossible to hope to keep his past to themselves. She suggested on the 2d day of June that he visit her mother on the morning of the 3d, and see if the strained relations existing between them could not be improved, and he attempted to carry out that suggestion, but his mother-inlaw opened the door, and as soon as she recognized him slammed the door in his face. His story was intended to convey the impression that this act of the mother-in-law was regarded by his wife and himself as demonstrating that their gloomy forebodings as to their future were unquestionably well founded, for he testified: "We had come to the conclusion the way everything was going against us, and the way her mother was and the strain she put on her, her mind and mine, we made an agreement at that kitchen table to do away with both in each other's arms." The defendant's version of the nature of the agreement between himself and his wife, and how it came to be made and how executed, is told by himself in these words: "Well, the agreement was come to. as my wife had been talking about doing suicide, and she said that she meant it, and I knew if my wife said a thing she meant it, and I said, 'Well, Jo, if you are going to do away with yourself, you might as well do away with me first and yourself afterwards, because it will be a case of two, no matter how it goes;' and she said, 'Do you really mean what you say, Joe?' and I said, 'I do, if you do;' and so we agreed to die together at that table, and the first agreement was, she asked me if I would shoot her, and then my. self, and I said, 'No, Jo, I wouldn't shoot you, and I don't think I will have the courage to shoot myself;' and then she said, she says, 'Wouldn't you have the courage to take she first stated. I asked her, 'What do you intend to kill us both with?' and she said, 'Don't you think carbolic acid would be the quickest?' and I said, 'No; if we take it, we are ready to be found and ready to be cured;' and she said, 'Well, you know that revolver what I have got in my trunk? and I says, 'Yes.' 'Well,' she says, 'I have got that.' She says, 'We can shoot ourselves;' and I said, 'Where is the ammunition coming from? and she said, 'I have got it; and I said, 'How did you get ammunition?' and she said, 'I was out this afternoon in town and bought it,' she says, 'because I was intending to shoot myself anyhow, whether you did or not; and I said, 'Well, if you have got ammunition, the shooting is the speediest and the surest;' so we come to the conclusion that my wife would shoot me and then herself; and she says that when we went down- That was our agreement, what I wrote down in the book, and I wrote that agreement in the book that my wife was to shoot me in the mouth, or I had to shoot my