The People agt. Briggs.

minutes of any consequence were kept of the testimony before the grand jury; that there had been a thorough examination of the charge before the coroner and the police magistrate of this city shortly after the homicide, and that full minutes were kept on such investigations. The witnesses before the grand jury were examined by the district attorney or his assistant, from these minutes, and it is asserted that the evidence is substantially the same.

I have examined these minutes, though very voluminous, with great care, to determine whether the evidence given by Mrs. Briggs probably affected or influenced, in any degree, the grand jury in presenting an indictment against the prisoner for murder in the first degree.

The prisoner has resided for many years in Coeymans. For some time before the day on which the homicide occurred, he had been upon the jail limits of Albany, an execution or executions having previously been issued against his body. He was in the habit of leaving the city every Saturday night after midnight, and going to his home in Coeymans, where he resided with his wife, returning before midnight Sunday evening, so as to prevent any action for an escape. The deceased, Erskine Wood, was, and for some months had been, a hired man, and boarded in the family of Briggs.

Briggs is a man well advanced in years. Mrs. Briggs is a second wife, and a comparatively young woman. Wood was a young man.

On Sunday morning, July eleventh, Briggs arrived at his home at 2 or 3 o'clock in the morning, and got into the house without disturbing any of the inmates. He remained in an outer room, not going to the bed-room of his wife, and where she was at the time.

his

A short time after, Wood, as prisoner alleges, came from

own room in a nude state and went to Mrs. Briggs' room and into the bed with her, and was about to commit adultery, when Briggs fired a pistol or revolver, inflicting injuries or wounds from which Wood died.

1

The People agt. Briggs.

After being shot, Wood ran to the house of a neighbor and was taken in and cared for. Briggs at once rings a bell attached to some of the buildings, and by this and the noise made by him he succeeded in getting some of his neighbors aroused, and they get to Briggs' house at about, or shortly after, daybreak.

To these he makes the statement of the circumstances under which he shot Wood.

The neighbor to whom Wood went swears that he was naked when he first came to his house, and this greatly tends to corroborate the prisoner's version of the transaction.

That Wood died from pistol wounds discharged by prisoner is not denied.

The more serious and difficult question to determine is, under what circumstances did the killing take place?

I also find some evidence tending to show intimacy between Mrs. Briggs and Wood during the prisoner's absence from home, such as riding together on several occasions.

It appears that, before the grand jury, Mrs. Briggs denied any adulterous or improper intercourse or intimacy with Wood, and says he was not in her room, to her knowledge, that night, and that she was first aroused by the discharge of the revolver and noises immediately following.

It will, therefore, be seen that her testimony was most unfavorable and damaging to her husband, and would leave. the impression that the killing was a deliberately planned act on the part of Briggs, and from a premeditated design to kill Wood.

In a word, that it was not committed in the heat of passion upon sudden provocation, or under such circumstances as to make the crime anything less than murder in the first degree.

I am aware that the court of appeals has held, and all will admit properly, that a man may be guilty of murder in the first degree for killing another, while in the very act of adultery with his wife, when such killing was the work of deliberation and premeditation.

The People agt. Briggs.

But the same court has held that such adulterous conduct may furnish the greatest provocation for killing the adulterer, and when this is done upon a sudden discovery, in a moment of great mental excitement, and when the passions are aroused, so that the man has no time for deliberation and premeditation, but acts from the impulse of the moment, without an intent to kill, the crime is not murder, and a conviction could not be expected for any higher offense than manslaughter in the third degree.

From this it will be seen how important was the testimony of Mrs. Briggs for the prosecution, and how damaging to the accused. Without this, non constat, the indictment might not have charged this grave offense.

It

may be said that this can do no harm, even though it be erroneous, as upon the trial the alleged improper evidence can be kept out. But under this indictment no bail can be given. The prisoner must remain in custody without such an opportunity for preparing his defense as his freedom would allow him, and which he might secure by bail if the indictment was for a lesser offense than is here charged.

This brings me to consider the question which underlies this motion. Was it proper, competent and legal for Mrs. Briggs to give this evidence? Does the law permit her to be called as a witness and give evidence against her husband and in favor of the prosecution, even though she may be willing, without the knowledge or assent of her husband? If so, the important part of this motion must be denied.

By the common law, and under our statutes prior to 1876, neither husband or wife could be examined as a witness for or against each other, except in prosecutions for personal violence, one upon the other. Unless, therefore, we can find some statute since that time which in express terms makes it competent for the prosecution to call Mrs. Briggs as a witness against her husband, on a criminal charge, her evidence was not only improperly received by the grand jury, but it is absolutely incompetent.

The People agt. Briggs.

The only statute under which it is pretended that such a course as was here pursued is permitted or admissible, is to be found in section 2, chapter 782 of the Laws of 1876, passed April twenty-seventh. That section reads as follows:

Section 2. In all criminal trials, and examinations before trial, a husband or wife may be examined on behalf of the other, but upon no such trial shall a husband or wife be compelled to testify against the other.

Does this section confer the right claimed by the prosecution? It seems to me clearly not. The only innovation. which this section makes upon the common law or the statutes as they formerly existed, was to give a right to a husband or wife to be examined as a witness on behalf of the other in a criminal trial or examination. Suppose this were all of the section, would it be contended for a moment that either could be called as against the other? Of course not.

Now, the other words are of a negative character. They certainly create no new right or privilege as to the husband or wife being witnesses that did not exist before. Mark the language: "But upon no such trial or examination shall a husband or wife be compelled to testify against each other."

The only construction that can be given to these words to warrant the position taken by the prosecution, would be that, because the legislature said they could not be compelled to testify against the other, the inference is they might do so if such testimony was voluntarily given. But it would be most. dangerous to allow any such interpretation or construction of the section. Such an innovation upon the common law would require a positive, affirmative provision or enactment of the legislature. She could not be called as a witness in behalf of her husband until the legislature so enacted.

She certainly cannot be called to give evidence against him until the authority is expressly given.

It may be that the latter part of the section amounts to nothing. Certainly no one claimed, before its enactment, that husband or wife, by any law that ever existed, could be

The People agt. Briggs.

compelled to testify against each other (Wylie agt. People, 53 N. Y., 525).

But it may have been placed there (and I think this the more probable reason for the employment of the language) to prevent a husband or wife, after being called as a witness for the other, or on behalf of the other, as the language is, from being compelled, on cross-examination, to testify to facts injurious to the party in whose behalf he or she was called, and not inquired of on the direct examination, or at all necessary to explain the evidence given in chief.

For instance, a wife might be called as a witness on behalf of the husband, to prove some one isolated fact. It may be that the legislature, by saying that she should not be compelled to testify or give evidence against him, intended to prevent, upon a cross-examination, an inquiry into any other matters not inquired of upon the direct examination, and which might be very damaging to the husband, and so vice versa. Whether this be the correct solution or not, it is quite immaterial. It is enough that no positive enactment can be found making it proper to call husband or wife as a witness against the other. The following authorities (if indeed authorities are necessary on this point) go to substantiate this reasoning (22 Alb. L. J., 81; State agt. Houston, 50 Iowa, 512; Dill agt. State, 1 Tex. App. R., 278; Hubbell agt. Grant, 39 Mich., 641).

I have thus endeavored to show that Mrs. Briggs gave most important evidence against her husband before the grand jury, and, second, that such evidence was incompetent, for the reason that she could not legally give such evidence. It only remains to consider what is the remedy of the prisoner, if any.

The law requires, and the grand jury are always charged, that no indictment should be presented unless the guilt of the accused is clearly established by credible, legal and competent testimony. It may be said, and truthfully, that no indictment could ever stand if it was to be set aside because some illegal evidence was admitted. The grand jurors are not lawyers

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