dermen might adjudge necessary. The petitioner was the owner of certain land, including a mill and dam across a natural stream, and of certain water rights connected therewith. On June 30, 1892, he entered into an agreement under seal with the respondent, by the terms of which he, in consideration of $25,000, covenanted to convey to the respondent a certain parcel of land, described by metes and bounds, "together with any and all rights which I now own to flow any lands, the surface of which is below the level of my dam." The petitioner reserved an island in the pond, and some land included in the premises described. On July 1, 1892, the board of aldermen took the premises which the petitioner agreed to convey, together "with the right and the easement to flow all lands covered by said waters thereby, and all other water rights of flowage appurtenant to and connected therewith; meaning and intending hereby to include all the water privilege and rights of flowage owned by the late Chandler Sprague." On July 15, 1892, the petitioner, in consideration of $25,000, released to the respondent, by a quitclaim deed, the land and water rights described in the agreement of June 30th. It appears that the dam was included in the land conveyed to the respondent, and that the dam was 32 inches high above the sill, and that in the spring, and other seasons of high water, the water had been raised by means of the dam 111⁄2 inches above the rest of the dam. The contention of the petitioner is that as he agreed to convey, and did convey, only his water rights to the level of the dam, he has lost, by the taking, the right to flow the land above. which he had by virtue of the 11% inches of water. But the only means which the petitioner had of raising the 111⁄2 inches of water was his dam, which he conveyed to the respondent, and which the latter might at any time take down. If, as he contends, he has lost the right to sell to upper riparian proprietors his right of flowage, it is in consequence of his own act in conveying the only means which he had to flow their lands. And we see no ground upon which this petition can be maintained. Verdict to stand.

(162 N. Y. 498)

A. T. ALBRO CO. v. FOUNTAIN et al. (Court of Appeals of New York. April 17,

1900.)

CREDITORS' BILL-SUBROGATION-EVIDENCEAPPEAL REVERSAL-JUDGMENT-FRAUDFRAUDULENT CONVEYANCE.

1. When a bank which is a party to a creditors' bill against a depositor pays the deposit to the latter, it is subrogated to the rights of the depositor, and may avail itself of any defense existing in her behalf.

2. Where, in an action by creditors against a debtor and alleged fraudulent transferees of property, a judgment that the sale is fraudulent as to the transferror and the transferees is reversed on the transferees' appeal, such judgment is not admissible on a retrial for the pur

pose of showing that the transferees participated in the seller's fraud.

3. A husband sold property for $750. Shortly after, the wife deposited $700 in a bank. There was no evidence showing that she got the money from her husband. She testified at one time that it was her money. Afterwards she testified that another person had an interest in such money, and that person afterwards swore that he had no interest therein. Held not sufficient, in a suit to subject such property to the payment of a judgment against the husband, to show that the money belonged to the husband.

Bartlett, J., dissenting.

Appeal from supreme court, appellate division, First department.

Creditors' bill by the A. T. Albro Company against Joseph Fountain and others. From a judgment of the appellate division (44 N. Y. Supp. 150) affirming a judgment for plaintiff, the defendant the Union Dime Savings Institution appeals. Reversed.

C. N. Bovee, Jr., and J. McG. Goodale, for appellant. Eugene Frayer and Robert Gibson, Jr., for respondent.

HAIGHT, J. The plaintiff, as judgment creditor of the defendant Joseph Fountain, brought this action to recover moneys which, it is alleged, belonged to the defendant Joseph Fountain, and had been by him transferred to his wife, Jean Fountain, in fraud of the rights of creditors, and by her deposited in the Union Dime Savings Institution. After the commencement of this action the Union Dime Savings Institution was served with an order of the city court requiring it to pay over the money on deposit in the name of Jean Fountain to the sheriff, to apply upon a judgment recovered by one Perkins against her. Thereupon the bank, upon an affidavit of its treasurer, moved the city court to set aside the order upon the ground that the plaintiff in this action had brought a suit claiming that the money on deposit belonged to Joseph Fountain, and that it would interpose an answer, and defend the action in good faith. The city court vacated the order, and the defendant put in an answer to the complaint in this action. Some days afterwards a deputy sheriff presented a check of Jean Fountain, accompanied with her bank book, to the bank, and the money on deposit in her name was paid over to him. The record does not disclose the circumstances under which the bank made the payment, and we consequently are unable to determine whether it was made through inadvertence or otherwise. The case afterwards proceeded to a trial, resulting in a judgment in favor of the plaintiff, from which the bank has appealed. The appellate division appears to have reached the conclusion that the bank was to be treated the same as if it had not parted with the money, and as if its attitude was that of a disinterested holder of the money pending the litigation, and that, inasmuch as Mrs. Fountain had not appealed, the bank could raise no question for review on

The

its appeal. We cannot approve of this disposition of the case. In so far as the question here presented is concerned, it matters not whether the bank paid over the money intentionally or inadvertently. The fact remains that the money was paid upon the check of Jean Fountain, and, as soon as it was paid, she ceased to have any interest in the subject-matter of the litigation. payment by the bank did not relieve it from liability to the plaintiff, or in any manner impair or prejudice the latter's right to hold the bank liable for the money which it held at the time the action was brought; but by the payment the bank became subrogated to the rights of Jean Fountain, and assumed the responsibility of defending the action, and it could avaid itself of such defenses as existed in her favor.

Upon the argument the respondent's counsel contended that, in case the judgment should be reversed, and a new trial ordered, he could introduce the judgment roll, and by it conclusively establish upon the new trial the fraud alleged between Fountain and his wife; that, neither of them having appealed, the judgment is conclusive upon them. However that may be, it would not be conclusive upon the bank, as we have recently determined in the case of Bank v. Sherwood, 162 N. Y., 56 N. E. 834.

Our

We are thus brought to a consideration of the merits. The appellate division, having reached the conclusion that the bank had no standing in court to review the judgment, says, in its prevailing opinion. that it was unnecessary to consider the merits of the controversy. There was, however, a vigorous dissent, in which the claim was made that there was nothing in the testimony except a mere suspicion that, because the parties were husband and wife, the money which Jean deposited in the bank was her husband's. examination of the evidence has led us to the conclusion that it does not support the judgment. Fraud must be proved. It must be based upon evidence. It cannot be established upon guesses or suspicions. Joseph Fountain had a restaurant. After several days' negotiation, he finally sold it to one Engel, who gave him a check on the Nineteenth Ward Bank for $750. This check was indorsed by Joseph Fountain, Lewis S. Marks, and Eliza Ashcroft. To whom it was paid does not appear. It does not appear that it was ever paid, except as may be inferred from its subsequent presentation in court by Engel. The check was given to Joseph Fountain on the 18th day of May, and on the 20th day of May thereafter his wife, Jean, deposited $650 in the defendant bank. This is all. There is no evidence showing that the $650 came from her husband, or from the proceeds of the check. When she was examined in supplementary proceedings instituted upon the judgment recovered against her by Perkins in the city court, she stated that she had on deposit in the defendant bank $700,

and that it was her own property. When she was afterwards examined in supplementary proceedings upon the plaintiff's judgment, she testified that she was the owner of about $300 of the fund on deposit, and that the balance belonged to one Philip Reynolds. About a month later Reynolds was examined, and stated that he did not claim any interest in the fund. While her testimony may create some suspicion, it is not necessarily in conflict. She might have been the owner of the entire fund when she was first examined, and afterwards transferred to Reynolds $400, so that at the time she was examined in the second proceedings she was the owner of only $300 of the fund, and during the ensuing month, before Reynolds was examined, he may have retransferred his interest in the fund to her. However this may be, it does not establish the fact that she derived the money from her husband. This is not a case where the finding is against the weight of evidence, but one in which there is an absence of evidence necessary to establish one of the essential features of the claim lying at the foundation of the action, and, as matter of law, a recovery is not justified. The judgment should be reversed, and a new trial granted, with costs to abide the event.

PARKER, C. J., and O'BRIEN, MARTIN, VANN, and LANDON, JJ., concur. BARTLETT, J., dissents.

Judgment reversed, etc.

(162 N. Y. 532)

PEOPLE v. FLAHERTY. (Court of Appeals of New York. April 20, 1900.)

JURY- QUALIFICATIONS OF JUROR CHALLENGES-ACTUAL BIAS-PEREMPTORY CHALLENGES RAPE-PROSECUTION-EVIDENCEOTHER ACTS-INSTRUCTIONS STATEMENTS OF PROSECUTING WITNESS.

1. Under Code Cr. Proc. § 376, providing that a person who has formed an opinion touching the guilt or innocence of a person accused of a crime may act as a juror if he declare on oath that he believes that such opinion will not influence his verdict, and that he can render an impartial verdict according to the evidence, one who testifies on his voir dire that, notwithstanding that he has an opinion as to the guilt or innocence of defendant, he could render a fair and impartial verdict on the evidence, is not qualified to act as a juror, since he has not declared on oath that he believed that his previously formed opinion would not influence his verdict.

2. Under Code Cr. Proc. § 376, relating to previously formed opinions touching the guilt or innocence of a person accused of a crime as affecting qualifications of juror, one who testifies that. notwithstanding a previous opinion as to the guilt or innocence of defendant, he could devest himself of such opinion, and render a fair verdict on the evidence, is not qualified to act as a juror; and it was reversible error to overrule a challenge for actual bias, necessitating defendant's exercising his last peremptory challenge on such juror, where subsequently a juror was retained whom defendant would have peremptorily challenged had he not exhausted his peremptory challenges.

3. Where an indictment charged defendant with unlawful sexual intercourse with another on a certain date, it is error, the reputation of defendant not being in issue, to permit the prosecution to prove seven separate offenses of the same nature, on the theory that the prosecuting attorney might rely on any one of the offenses proven to secure a conviction.

4. In a prosecution for unlawful sexual intercourse with a female under the age of 16 years, where it appears that the parish register of births had been altered so as to show that the prosecuting witness was over 16 years of age at the time of the alleged intercourse, it is error to charge the jury that it is claimed by the prosecution that defendant, being interested in the changing of the record, changed it, and that if the jury so believe then they are to give it weight as corroborating testimony, when all the evidence on that point tended to show that the register was not changed by defendant, and, further, that he did not have any opportunity to change it.

5. Statements by the prosecuting witness, made nine months after the alleged unlawful intercourse, as to the reasons why she consented to the intercourse, and kept silence concerning it, are inadmissible in corroboration of her testimony.

6. Where, in a prosecution for having sexual intercourse with a female under 16 years of age and not the wife of defendant, it appears that the complaining witness first stated to another that she had had sexual intercourse with defendant several months after the act, and the defendant, on cross-examination of the person to whom the prosecuting witness first confessed, endeavored to show that it was the former, and not the latter, who first suggested the defendant's name, and in so doing brought out a part of the conversation between the prosecuting witness and such other, it is not competent for the state, on redirect, to inquire of such witness as to whether or not prosecuting witness gave her any reason as to why she had intercourse with defendant, since such part of said conversation is not necessary to make the balance thereof intelligible, nor did such question call for the balance of such conversation.

Appeal from supreme court, appellate division. Fourth department.

Charles Flaherty was convicted of having sexual intercourse with a female under the age of 16 years, not his wife. From a judgment of the appellate division (50 N. Y. Supp. 574), affirming the judgment of conviction, defendant appeals. Reversed.

Charles Flaherty, in pro. per. William Carter, for the People.

PARKER, C. J. By the judgment under review, Charles Flaherty was convicted of the crime of an act of sexual intercourse with a female not his wife while under the age of 16 years. His contention in this court is that errors, greatly prejudicial to him, were committed in the progress of the trial, and the result of our investigation of the record has induced the conclusion that his contention is well founded. Some of the errors we shall now point out.

In the first place, the safeguards that the statute provides for the purpose of assuring a defendant in a criminal trial a fair and impartial jury were not fully observed. While the law is not so unreasonable as to require the exclusion from the jury box of all per

sons who have formed an opinion touching the guilt or innocence of the defendant on trial, it nevertheless treats the existence of such an opinion as establishing prima facie that the juror is disqualified, and the statute (Code Cr. Proc. § 376) then steps in and provides a method by which this prima facie disqualification may be overborne, i. e. the juror must "declare on oath that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict." But, as We have recently held in People v. Wilmarth, 156 N. Y. 566, 51 N. E. 277, if the juror, who is prima facie disqualified by his opinion, fails to make such a declaration as the statute provides, his acceptance as a juror by the trial court constitutes error of law, which may be reviewed in this court, where it appears that the defendant has been prejudiced thereby.

*

*

George H. Snyder, a man of considerable intelligence, was examined as to his qualifications for a juror after the defendant had exhausted his peremptory challenges, and, in answer to inquiries put to him, said, among other things: "I formed my opinion as to the guilt or innocence of Father Flaherty from the fact that he was removed from his church by the bishop. He was guilty perhaps, or else would not have done what they did do. That is one reason. There might be various things that I formed my opinion on. That was the most important. * * This opinion I formed I have been satisfied was right from the time I formed it. It is formed largely upon the action of the bishop. as I understand that. I don't know whether the action of the bishop could be investigated on this trial or not. The action of the bishop proved or disproved, I would naturally be influenced by that action. Possibly it may be he would not only have to prove he was not guilty, but prove in some way facts aside from that with regard to the bishop thinking that he was guilty." His examination covers several pages of the record, but that which we have quoted is sufficient to establish, to say the least, that the juror had such an opinion as to the guilt or innocence of the defendant as constituted prima facie a disqualification; and it became necessary, therefore, to call for the "belief" of the juror upon the two subjects referred to in the part of the section of the Code that we have quoted, namely, whether the influence or impression which the juror had would influence his verdict, and whether he could render an impartial verdict according to the evidence. But, after all this lengthy examination of the juror had ended, no such question was put to him by the prosecuting attorney. Instead, the court at once decided that the juror was qualified, and, from what the court said in announcing its decision of

the matter, it would appear that the court was under the impression that some time during the examination an attempt had been made to bring the juror within the provisions of the statute. Perhaps, indeed, that may have been what the district attorney had in mind when on the direct examination of the juror this answer from him was obtained: "Notwithstanding that opinion, I could render a fair and impartial verdict upon the evidence as it shall be offered in this case." It will be observed that this answer is not at all in compliance with the statute. By it the juror did not declare on oath that he believed that such opinion or impression would not influence his verdict; hence the statute was not satisfied, either as to form or substance. In overruling the challenge, therefore, the court erred to the prejudice of the defendant, who, having exhausted his peremptory challenges, was compelled to allow Snyder to sit as a juror, although, in addition to his admitted opinion, his relations were so friendly with one Maurice Noonan, with whom the prosecutrix lived, and who personally took so great an interest, and so far exerted himself in the prosecution of the defendant, as to render it especially desirable to the defendant that he should not sit.

The juror Henry Ford was excluded from the jury box by the exercise of the last of defendant's peremptory challenges. Had the defendant not been compelled to use it in excluding Ford, it would have been available to him to keep Snyder out of the jury box; but he was compelled to use it because the court refused to sustain his challenge to Ford on the ground of actual bias. Ford said, in answer to defendant's counsel: "I have a pretty strong opinion now, and it would take sufficient evidence, of course, to change my mind. I am perfectly satisfied with my present opinion as correct. In hearing all the evidence introduced in this case, I would have in my mind my present opinion and information, and compare them, I suppose, as they came along, with what I understood about the matter. I have a definite, settled, and satisfactory opinion whether this girl is telling the truth or not. I hold the same opinion yet. I have not had anything to change it since." What has already been quoted sufficiently establishes that the juror had an opinion touching the guilt or innocence of the defendant. I pass over the succeeding pages of his examination, to the end of it, where may be found the one question during his examination which was apparently intended to meet the requirements of the Code. That question was put by the court, and was as follows: "Q. Could you, in this case, devest yourself of any opinion you entertain, and render a fair and impartial verdict upon the evidence brought out on the trial here? A. I think I could. Q. Could you do it? A. Yes, sir. The Court: The juror is qualified." So the court doubtless thought; but he was not legally qualified, because the question put

to him did not comply with the terms of the statute. The court did not ask the juror whether he believed that the opinion or impression that he had would not influence his verdict. Such an inquiry the statute requires in terms, and for the reasons given in People v. Wilmarth, supra, which we do not deem it necessary to again present, it constitutes a most important feature of the statute's provisions, and its omission leaves the prima facie disqualification incident to an existing opinion in full effect. It was error, therefore, for the court to overrule the defendant's challenge, and the result was that he was obliged to use his last peremptory challenge in order to exclude Ford from the jury box.

As these errors call for a reversal of the judgment, we might not consider the case further, were it not that the trial was conducted in distinct violation of the rights of the defendant in most important respects, and, as the same course was pursued on the former trial to a certain extent, it seems to be our duty to guard against the repetition on the next trial of some errors most damaging in effect, which the defendant has had to meet on the previous trials. The indictment charges the defendant with the crime of an act of sexual intercourse with a female not his wife, under the age of 16 years, and alleges, in due form, that the act constituting the crime was committed on the 1st day of July, 1892. The complainant says that the defendant had sexual intercourse with her on seven different occasions prior to her becoming of the age of 16 years. Notwithstanding the fact that, if all of said acts were committed, they constituted seven distinct crimes, for only one of which defendant was or could have been charged in this indictment, the people were permitted on the former trial to prove all of these acts, and the jury authorized to find the defendant guilty, provided they found he had committed any one of them. On the trial which is the subject of this review the court refused to follow the precedent thus set for it in one respect only,-it did hold finally that the defendant could be convicted for only one offense; but that decision did not go far enough, as we shall see, nor was it made at the time that it should have been. The defendant was represented by skilled counsel, who, although having but a very short time for the preparation of the case, fully appreciated the difficulties that had unjustly been placed upon the defendant on the former trial to defend against seven distinct crimes where but one was or could have been charged, and so, at the very opening of the trial, by request to the court, and also to the district attorney in open court, by direct motion made and objection to evidence taken, the counsel presented in almost every way conceivable to the court that the defendant was charged with but one crime, could be tried for but one, and was entitled to know at the very beginning of the trial whether he was to be tried for a crime committed on the date alleged in

ple should state the date of the crime which it was purposed to prove as the one charged in the indictment. But the district attorney protested that it was his right to prove as many similar crimes as he could, and to submit any one he chose as the one charged in the indictment. The court sustained the position of the district attorney, and for seven days the taking of testimony on the part of the people proceeded, during the course of which 21 witnesses were called and testified to various outlying circumstances, offered apparently in the hope that they might be in the end regarded as in some way corroborating the complainant as to some one of the transactions detailed by her. A long, skillful, and, at times, effective, cross-examination had taken place, but without any knowledge on the part of the cross-examiner as to which one of the seven acts about which the complainant testified was to be submitted to the jury as the crime charged in the indictment. The people rested, and then the court offered to entertain a motion to compel the people to elect upon which one of the transactions it would stand. The motion was made; direction to the people given; selection made; and then, just at the very moment when the defendant was obliged to put his witnesses on the stand in support of his defense, he was advised, and for the first time, for what particular crime his conviction was to be asked at the hands of the jury. The statute provides that an indictment must contain "a plain and concise statement of the act constituting the crime, without unnecessary repetition" (Code Cr. Proc. § 275); "must charge but one crime and in one form," except where it may be committed by different means (Id. §§ 278, 279); and this court said in People v. Dumar, 106 N. Y. 502, 509, 13 N. E. 325, 328: "The indictment, therefore, must charge the crime, and it must also state the act constituting the crime. The omission of either of these things would necessarily be fatal to the indictment." And, again, the court, in assigning a reason for the legislative requirement that the particular act constituting the crime should be stated, said: "The manifest intention of the legislature in requiring the indictment to state the act constituting the crime was, among other things, that the accused should learn from it what he was called upon to defend." In the Dumar Case, as in others that might be cited, the indictment charged the crime of grand larceny, and alleged acts constituting the crime of grand larceny; but on the trial the people attempted to prove acts constituting the crime of grand larceny, it is true, but they were very different from the acts alleged in the indictment, with the result that in this court the judgment of conviction was reversed.

If this indictment had alleged the comm'ssion of the seven different acts constituting the crime of rape in the second degree, it would have been bad for duplicity, and, of

a crime that cannot be alleged in an indictment, which was the situation at the time this indictment was drawn as to six of the alleged acts constituting rape in the second degree. And yet, as we have seen, the people were permitted to prove these seven distinct acts as seven distinct crimes charged in the indictment, for either one of which the defendant could be convicted under the indictment; the choice of selecting the one upon which the jury should be asked to find a verdict of guilty being left to the close of the people's case, and could well have been left, according to the view of the district attorney, until it became time to present the case to the jury. In other words, the effect of erroneously alleging a crime as having been committed on a particular date has, if this view be correct, great advantages for the prosecution over that of alleging things truly as the law contemplates; for in the latter case even the district attorney would not contend that he could offer evidence tending to prove six other crimes, and ask for the conviction for such one of them as he should elect. But the error of date in the indictment, whether the result of mistake or intention, carries with it no such power to the prosecuting officer. The indictment alleges acts constituting but one crime, and, while the mistake as to the date will not prevent the prosecution from proving the crime charged in the indictment, the indictment will be deemed to cover the offense attempted to be proved nearest in point of time to the date in the indictment. It is not difficult to understand how the court came to fall into error in respect to the matter we have been considering; for, to the general rule that a defendant in a criminal action cannot have proved against him the commission of other crimes unless he puts his character in issue, there is an apparent exception where the charge is of unlawful sexual intercourse. Such evidence, however, is not admitted for the purpose of proving other offenses against the law, but solely upon the view that it may tend to corroborate the complainant's account of the acts alleged in the indictment as constituting the crime. I shall only stop to hint at the reasons upon which this rule is founded, the underlying idea being that it is probable that parties who have, prior to the offense charged, indulged in sexual intercourse, did commit the specific offense charged; that the adulterous disposition of parties both before and at the time of the act of sexual intercourse in controversy is a circumstance which may be received in corroboration of other evidence upon that issue; and so it was first held that witnesses might testify to acts of the parties indicating illicit relations as corroborative of the testimony offered to prove the particular offense charged in the indictment. And the next step taken is described in People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880, and is to the effect that, if such evidence be competent