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The People agt. Briggs.

A principal is presumed to have notice of the acts performed by his agent in the usual course of his agency. It would be going too far, I think, to hold that this presumption extends to everything the agent may do, and to acts clearly not within the agency.

That the plaintiff had notice of this extension and adopted it was for the defendant to show. He called and examined the attorney himself as a witness, but failed through him to establish notice or knowledge.

The plaintiff it appears is a non-resident of this state. I cannot say that he was absolutely called upon to be present at the trial, at inconvenience and expense, to disprove a fact which the defendant failed to establish.

There must be judgment for the plaintiff.

ALBANY OYER AND TERMINER.

THE PEOPLE agt. Hiram G. BRIGGS,

Practice in criminal cases Indictment- On a motion to quash, for irregro

larity When a grand juror may be examined - When defendant may move before plea to quash When facts in the moving affidavit may be alleged on information and belief - Effect of When indictment will be quashed Wife not a competent witness against her husband Right of a defendant in an indictment to a list of the witnesses and copy of the tests mony before the grand jury.

Where the defendant in an indictment moves to quash the indictment for irregularity, a grand juror may be examined and testify to facts showing the irregularity, if it do not arise out of misconduct by the grand jury. If an indictment be improperly and irregularly found the defendant

may, before plea, move upon affidavit to quash it for such irregularity. The moving affidavit may allege the facts constituting the alleged irregularity upon information and belief, if they should be within the knowledge of the district attorney; and if so alleged they may be suficient to call upon him to dispute them if not correctly set forth in the moving affidavit.

VOL. LX 3

The People agt. Briggs.

If an indictment be found or based wholly, or in part, upon evidence

clearly incompetent and illegal it will be quashed and the defendant remanded, that his case may be passed upon by another grand jury

upon competent and proper evidence. Quære. Whether, if it be shown that an incompetent witness was

sworn and gave testimony before the grand jury, the law does not presume that testimony to defendant's injury was given by such witness

and cast the onus of showing the contrary upon the public prosecutor? Under section 2 of chapter 782 of the Laws of 1876 a wife is not a

competent witness against her husband, and cannot be called against

him by the people without his consent. Right of defendant in an indictment to a list of the witnesses and copy

of the testimony before the grand jury discussed by counsel but not determined by the court as the indictment was quashed.

October, 1880.

Hon. A. M. OSBORN, justice supreme court, presiding. Hons. JAMES R. Man and John GUTMANN, justices sessions.

DEFENDANT moved, upon an affidavit by himself and Nathaniel C. Moak, his counsel, to quash an indictment against him for murder in the first degree, in killing one Erskine Wood, found by the grand jury at this term.

The affidavit alleged among other things, upon information and belief, that on the hearing of the charge against defend.ant, on which the indictment was found by such grand jury, there was evidence tending to show that defendant shot and killed said Wood while committing adultery, or having carnal connection with defendant's wife, and that on such hearing defendant's wife was called, sworn and testified before the grand jury without his knowledge or consent, and, among other things, testified, in substance, that she never committed adultery or had carnal connection with Wood, and was not so engaged at the time defendant shot Wood. The application was also based upon the testimony before William K. CLUTE, police justice of the city of Albany, where defendant's wife was allowed to be called and sworn against him, though objected to by his counsel as incompetent.

The People agt. Briggs.

The affidavit stated that the affiants were informed and believed the testimony of the several witnesses before the grand jury was substantially the same as before the volice justice.

The district attorney read no opposing affidavit, but, after the reading of the moving affidavit, objected that as it was upon information and belief it was not sufficient to call upon the people to answer it.

The court ruled that as the fact whether defendant's wife was sworn and gave testimony before the grand jury, and what she testified to was presumptively within the knowledge of the district attorney, it was sufficient to call upon him to answer the moving affidavits.

Defendant's counsel insisted that as an incompetent and illegal witness testified before the grand jury the presumption, until met or explained by the people, was that the testimony of the witness was prejudicial to defendant, particularly as it is charged on information and belief what the substance of the testimony was, and that is not denied. We, however, have the foreman of the grand jury subpænaed here to show what the fact was.

The court replied, perhaps that is so, and if you choose to rest your case upon that, of course we shall pass upon the question. If, however, you choose you may call the foreman and show positively what the fact was ; you may do so, and the court, upon so important a question, would prefer a certainty to a presumption or a statement upon information and belief. Defendant's connsel thereupon called Peter J. Vedder, the foreman of the grand jury, and offered to swear him as a witness. The district attorney objected that he was not a competent witness, and, also, that he should not be allowed to testify as to what occurred in the grand jury room. The court overruled the objections and the witness being sworn testified, that on the hearing before the grand jury of the charge against defendant there was evidence before the grand jury tending to show that defendant shot and killed Wood while having connection with defendant's wife, and that

The People agt. Briggs.

defendant's wife was sworn before the grand jury and, among other things, testified she never had had carnal connection with Wood, that she was asleep when the first shot was fired and was awakened by it.

Other facts appear in the opinion.

Nathaniel C. Moak and Martin D. Conway, for defendant.

First. The irregularity or wrong not appearing on the face of the indictment the proper remedy is to move to quash the indictment (1 Bish. Crim. Proc. [3d ed.], sec. 763; People agt. Shattuck, 6 Abb. N. C., 33; U. S. agt. Coolidge, 2 Gall., 364; Reg. agt. Heane, 9 Cox Cr. Cas., 433; People agt. Tulbut, 4 Denio, 136).

In People agt. Hulbut (4 Denio, 136) the court, per Bronson, chief justice, said: “The indictment when presented in due form by the grand jury and filed in court is a record, and like other records imports absolute verity. It cannot be impeached unless it be upon motion by showing that it was not founded upon sufficient evidence, or that there was any other fault or irregularity in the proceedings."

In the same case (p. 136) the court further said: “In Low's case (4 Greenl., 439) the grand jurors were allowed to testify that they acted under the inistaken impression that it was sufficient, if a majority of the jurors concurred, in finding the bill, and that twelve of their number had not in fact agreed to the bill in question. But this was not on a trial before the traverse jury, but on a motion, and the court fully recognized the distinction between attacking a record in a collateral proceeding and a motion to set aside or amend it. So long as the record remains no defect in the evidence upon which it was founded, nor any irregularity in the proceedings, however great, can furnish any answer to it. But when the ends of justice require it a record may be set aside on motion ; and when set aside that is an end of it" (See, also, People agt. Restenblatt, 1 Abb. Pr., 268; 3 Am. Law Reg. [O. S.], 418; People agt. Strong, 1 Abb. Pr. [N. S.), 247,249).

The People agt. Briggs.

Second. The grand jury is a constituent part of the court of oyer and terminer, and the control of that court over its proceedings continues, and may be thus exercised after the grand jury has adjourned (People agt. Naughton, 7 Abb. [N. S.), 421, 423, 424 ; 30 How. Pr., 430 ; State agt. Comun, 1 Plead [Tenn.], 280 ; Clem agt. State, 33 Ind., 418). The minutes of evidence taken before the grand jury are a part of the records of the court and remain in the custody of one of its officers (State agt. Little, 42 Iowa, 51). A court always takes judicial notice of its own records in the cause (1 Whart. on Ev., sec. 325); and this though not brought before it by affidavit (Crann agt. Smith, L. R. [4 Exch.), 146). On a motion to adınit the accused to bail the court will always inspect the minutes of the testimony before the grand jury (People agt. Shattuck, 6 Abb. N. C., 37; People agt. Van Horne, 8 Barb., 158; People agt. Fyler, 2 Park. Cr. Rep., 570, 572). The application of the accused for inspection of the minutes made in the grand jury rooms must be founded on irregularity on the part of the grand jury, which the defendant is entitled to take advantage of, and on the necessity of the production oi the minutes for that purpose to enable him to prepare for trial (People agt. Naughton, 7 Abb. Pr. [N. S.), 421 ; 30 Tlow. Pr., 430). The moving affidavit states all the facts required by the court, in People agt. Naughton (7 Abb. Pr. [N. S.], 431, 432), to entitle defendant to a copy of the minutes of the testimony. The oyer and terminer may, upon cause shown, order a list of the witnesses examined before the grand jury, on finding an indictment, to be furnished by the district attorney to the accused, and allow the accused to examine the minutes made by the grand jury in case of irregularity in their proceedings affecting his indictment (People agt. Naughton, 7 Abb. Pr. [N. S.], 421; 30 How. Pr., 430). “A party indicted for a capital offense is entitled, as a matter of right, to a list of the witnesses examined as to his case before the grand jury(Corn. agt. Locke, 14 Pick., 485; Com. agt. Knapp, 9 Pick., 495, 497).

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