HILL, P.J.

Defendant has been convicted of participating as a principal in the crime of kidnapping John J. O'Connell, Jr., on the early morning of Friday, July 7, 1933, his alleged part in the crime being that he planned it, counselled in regard to the holding of O'Connell and as to the place of his detention and actively participated in obtaining $40,000 paid as ransom by Daniel P. O'Connell (who will be mentioned in this opinion as O'Connell, Sr.), an uncle of O'Connell, Jr. He has been sentenced to imprisonment in a State prison for fifty years.

O'Connell, Jr. (a man twenty-four years old), returning from a social engagement about one o'clock Friday morning, stopped his automobile in front of his father's residence on Putnam street in the city of Albany. As soon as he switched off the lights and motor a man opened the door, pointed a gun and commanded him to get out of the car. When he got out through the door opposite the one which his assailant had opened, he was seized by four or five men, his eyes and mouth were covered with adhesive tape. He was taken to another automobile and finally to a truck in which he traveled to the place in or near New York city where he was held prisoner until late Saturday night, July twenty-ninth, when he was taken blindfolded a considerable distance and turned over to this defendant who, at the request of O'Connell, Sr., had come with the ransom money to get him. O'Connell, Jr., testifies that from photographs he has identified John Oley, Francis Oley and a man named Geary as among those who seized him in front of his father's residence, but says that defendant was not one of the number.

Several members of the O'Connell family reside in and about Albany. O'Connell, Sr., is the recognized head of the family. They are well known politically in the city and county. During Friday, July seventh, the day when O'Connell, Jr., had been kidnapped in the early morning, a telephone message was received at the office of Edward O'Connell (a brother of O'Connell, Sr.). "Tell Eddie to tell Danny to go down to the post office to get a letter that is there for him." On the following day, O'Connell, Sr., obtained this letter from his post office box:

"I am being held for ransom. I am getting the best of care, but please do whatever the [ sic] ask, as I think I am in a tight predicament. They want two hundred and fifty thousand dollars in 5's, 10's, 20's. They seem to know all about it, so please do whatever you can for me. They want you to publish in the Knickerbocker Press Sunday about a dozen racketeers' names known locally to act as go-betweens to collect the ransom. Have it put in the personal column addressed Sedgwick. In order not to make this affair too public, the following system will be used: For instance, if the name happens to be 'Pet'" — And underneath, under each lettering, under "P" is "16," under "E" is "5," under "T" is "20." — "If the name happens to be 'Pet,' — 16 5 20." * * * In short, instead of using letters, use numbers. Now, to make sure that you are dealing with the correct people, they will at all times when they communicate with you use the name, 'Sedgwick.' Instructions will follow Monday.

"JOHN O'CONNELL, JR."

This and other letters later mentioned and quoted were not in script but printed by hand, except one that was typewritten. O'Connell, Jr., in his place of confinement would write his signature on a blank sheet, and the message would be printed later by some one of the criminals. Following the receipt of this letter, O'Connell, Sr., John O'Connell (father of O'Connell, Jr.) and John Murphy (a personal and political friend and associate of O'Connell, Sr.), made up a list containing the names, Jimmy Gilloughly, Pat Casey, John Oley, Fred Carroll, Tom Lynch, Barney Riley, Tom Dyke, Mush Tractner, Bindy Riley, Ames O'Brien, which was published in the Knickerbocker Press on Sunday, July ninth. The following day O'Connell received a second letter: "Dear Uncle Dan. Names not satisfactory. Mention some right names. Use same method. Use Times-Union Monday. Sedgwick." (This was the typewritten letter.) The same persons who made up the first list caused the names of Dave Hotaling, Bob Parr, Bill Bardean, Paul Carroll, Rock Tarzio, Eddie Gorman, Pat Coffey, Mike Connolly, Joe Leone, Willie King, Neal Ponze, to be published in the Times-Union. On Thursday (July thirteenth) O'Connell, Sr., received a special delivery letter that had been posted at Grand Central, New York city, the day previous at seven P.M.:

"We know it is no fault of your's that it reached the papers. From now on you will use the name 'Rex.' Not satisfied with names. Instructions for second is as follows: In the New York Evening Telegram you will put in the personal column, as follows, four names. For instance, to do it as follows: 'Dear Rex: Am in New York. Please get in touch with — Name S 3. End by signing a fourth name.' Do same in Evening Journal and Sun. Twelve names all together, all local racketters."

"REX."

Again the same persons who had prepared the first and second lists caused the following list of names to be prepared for publication: In the Journal, Sylvester Hess, Fred Roma, Terry Riley and Tom Tyndall; in the World-Telegram, Charles Wachter, Tony Condi, Manny Strewl (the defendant) and Willie Martin; in the Sun, Jim O'Connor, Dave Sherman, Joe Curro and Al Freedman. John Murphy, the friend of the O'Connells, took the advertisements to New York and arranged for the publication. On redirect examination, O'Connell, Sr., says that when the lists for the Sun, World-Telegram and Journal were made out, he and his two associates were in touch with the district attorney of Albany county by telephone. On the day after these publications, Tommy Dyke (he was not called as a witness), who had been named in the first list published, asked O'Connell, Sr., to meet him at the Elks Club in Albany, and there arranged that O'Connell, Sr., meet defendant in Washington Park near State street. At this meeting, which followed immediately, defendant gave O'Connell, Sr., the following letter:

" Friday, 14/33. MANNY STREWL: You no doubt are acquainted with the O'Connell people so you can be of great service to them. We have checked on you and decided to pick you as our go-between, and if you are willing, in the event you are, you will insert this ad in the World-Telegram personal section. 'Roma, get in touch with me. Manny.' Do this promptly and do not change your habits if you care to be of service. Secrecy at all times is necessary. This is genuine by John's signature only. Roma." "This is genuine.

"JOHN O'CONNELL, JR."

O'Connell urged Strewl to undertake the negotiations for ransom and asked him to go at once to New York to arrange for the advertisement mentioned, offering a substantial sum of money for expenses, but it was decided that Murphy should procure its publication through an attorney in New York. O'Connell, Sr., in the talk told Strewl that $250,000 had been demanded in earlier letters which he had received; that the father of O'Connell, Jr., had no money and that he had no money; that the brother who was an attorney had attempted to raise money and so far had gotten only $20,000, and requested that Strewl, if opportunity came, offer that amount as ransom. Within a few days Dyke again asked O'Connell, Sr., to meet Strewl. At this meeting Strewl told O'Connell, Sr., that a day or two previous he had been approached from the rear as he was walking on a street in Albany and told to go to Schenectady, where he met and communicated to a person the $20,000 offer; that he had just received a letter which he turned over to O'Connell. The first part addressed to "Dan" says, "Heard from Manning. What you offered was really an insult. What kind of people do you think you are dealing with. What we want is action one way or the other. If you want John alive, kick in 250 G's. If you want him the other way, why, we will accommodate you. We haven't much sympathy for your kind." This is followed by other threats and demands and is signed "Roma." At the bottom of the letter it is addressed: "Manning: If you get the money tomorrow or decision, have all your shades in your home drawn to the bottom." O'Connell, Sr., testified that upon reading this he said, "Well, I told him that we were still working on the money and had — had got up to about $23,000 or something like that, or $25,000, and that we were doing the best we could with money, but the thought of $250,000 was more than anybody could raise." Dyke arranged a further meeting which took place in the park, where Strewl delivered another letter, part addressed to "Dan" and part to "Manny." Again in this letter $250,000 was demanded. At this time defendant told O'Connell, Sr., that his partner John Oley (whose name had been published in the first list made out by O'Connell, and whom O'Connell, Jr., in his testimony says he identified as one of his assailants when he was seized in front of his father's home), objected to his continuing to act as go-between, and suggested a meeting between O'Connell, Sr., and Oley. O'Connell said he would meet Oley at "Joe Lieberman's room in the Ten Eyck hotel." This meeting took place within half an hour. O'Connell, Sr., details the conversation with Oley: "John Oley said that he thought his friend Manny would get himself in trouble by acting as the go-between and that he might get he [ sic] John Oley, and his brother Francis in trouble, having been together a long time and had been partners in business and that he had been told then they — by the Albany police or somebody on the Albany police that they were marked — that John Oley and Francis and Manny were marked as the kidnappers. I said 'I don't think that is so. I haven't heard anything like that,' and then we talked about the money matters."

O'Connell and Strewl met again in the park on July twenty-second. That meeting is described by O'Connell: "Well, he gave me the letter and it was a letter written in the boy's handwriting, and he said that he was sick, and I told Strewl that we couldn't get any more money and that we were then up to about $25,000, I believe, and that when he left me he told me if he heard — if he heard any more from them that he would let me know what was said. * * * He then told me that — Strewl told me then that he didn't care to meet Tommy Dyke; that it was hard to find Tommy Dyke when he wanted him, and lots of the newspaper men had seen them meeting on the corner, and he wanted me to call on his attorney Mr. Snyder."

The following day (Sunday) O'Connell, Sr., called the attorney Louis Snyder and asked for a conference on Monday. O'Connell tells of the meeting with Strewl at Snyder's office on Monday: "Well, Manny told him about the amount of money that they were asking, and the difference in the money, that is, the amount that we had, and that the police were tailing him, that the prowl cars were around and so on and so forth, and I think Mr. Snyder said — or Mr. Snyder said 'Well, that one car, I looked that up myself and that was a newspaper reporter.' And so Mr. Snyder said that — wanted to know if we couldn't get any more money and if we couldn't, why have Manny go down and offer them what you had again and see what would happen," and there was further conversation detailed about the activity of the district attorney and police. O'Connell tells of another meeting had in Snyder's office on Friday, the twenty-eighth. "Manning Strewl said that they would take $75,000. * * * I told him that I would do what I could in the matter, but I didn't think I could get any more money, that that was as much money as could be raised. And I left the office and was to call back later in the afternoon. * * * Q. And how much money did you tell them that you had at that time? A. $40,000. * * * I called at four o'clock and I told Mr. Snyder that I was able to raise $2,500 more which made it $42,500 and he said 'I will let Manny know.'"

Following this Strewl and Snyder went to the home of O'Connell, Sr., who gave them two packages each containing $20,000 and $2,500 loose in bills, the letters which the kidnappers required to be returned (except two which Snyder had held out), a revolver and a letter signed by O'Connell, Sr., saying that Strewl was his friend and was on business for him and if any one wished to check on that statement to call O'Connell, Sr., at his summer home. Strewl and Snyder at once left for New York. The following morning Snyder called O'Connell and said the kidnappers refused the money as they thought it was marked, and arrangements were made by O'Connell, through the State Comptroller's office, to have the money changed at the Bank of Manhattan. O'Connell, Jr., Snyder and Strewl arrived at the summer home of O'Connell, Sr., about three o'clock Sunday morning. O'Connell, Sr., describes the arrival. "I went out just about as quick as I could," inquired for the health of O'Connell, Jr., greeted Snyder and Strewl and invited them into the house. There were present Chief of Police Smurl, the district attorney, Detectives O'Connell and Dolan, and several other police officers. One of these persons asked Strewl into the living room where the officers examined him concerning the kidnapping. O'Connell, Sr., was in and out of the room, and O'Connell, Jr., "was in the chair in the same room * * * while Captain Oliver was talking to Manning Strewl." The evidence of O'Connell, Sr., as to the length of time that Strewl stayed with the detective is, "Well, I will say an hour." After that Snyder was questioned, and Snyder and Strewl left the O'Connell summer home together. During the time that Strewl was in the living room he returned the $2,500 which had not been turned over to the kidnappers. He had mentioned to O'Connell, Jr., on the trip from New York the fact that he had held out that amount. The foregoing recital as to the negotiations concerning the ransom and the return is as detailed by O'Connell, Sr., upon the witness stand, except where otherwise indicated.

Attorney Snyder was sworn on behalf of the defendant and gave evidence as to some of the occurrences mentioned which places Strewl in an even more favorable light than the O'Connell, Sr., version. O'Connell, Sr., was not called in rebuttal. Concerning the first meeting at his office, Snyder says, "He called at the office with Mr. Strewl and asked me if I would assist in any way possible, and I agreed to do so. He said 'whatever your fee is I will be glad to pay it.' I said, 'there is no fee in this, I am not handling this as a legal matter.' * * * 'Well' he said, 'for your protection draw up a retainer and I will sign it retaining you as my attorney.' I said, 'Dan, I don't need any protection and' I said 'as far as retainer, I am not expecting any pay for the services and there is no necessity for your signing it.' 'Well' he said, 'I am also retaining you as Mr. Strewl's attorney.' I said 'that isn't necessary either.' I said 'you give Mr. Strewl your instructions or tell me what — in what way I can assist you and I will be glad to do it.' He said, 'I requested Strewl to take $20,000 to the kidnappers and Strewl has refused to go alone.' I said, 'Dan, why don't you go with him?' 'Why,' he said, 'you know I couldn't go. I am the man that was to be kidnapped.' We sort of laughed about it and I said, 'Why, Dan, if it was a member of my family, I would go, if I had the opportunity of being of any service, and I think that they might consider negotiating with you. You are a man that has influence and in the sporting world, and they might consider discussing the matter with you.' He then said his reason was more than that, that it might not be well if too many were to negotiate. I said — told them then that I really didn't want to appear at all in the matter, and I suggested that we go to the district attorney's office. He said, 'No, there is no necessity of our doing that.' 'Well,' I said, 'Strewl really consulted me on this and told me that he had received information that he was to be framed in the case.' I am using his phraseology. 'That as soon as this kidnapping was solved that he would be arrested and accused of the crime.' I said, 'In view of the fact that he made that statement to me, I questioned him at length, in order to ascertain whether there was any foundation for that rumor.' I said, 'If there was, I certainly did not want any connection with it, and,' I said, 'I am fully satisfied that the rumor was either false or without any foundation.' He said, 'I know that that is false, and,' he said, 'it is natural for the police and the district attorney's office to be working on this case.'"

As to a subsequent meeting at his office, Snyder says: "Mr. O'Connell then asked him to take $25,000 to New York. Strewl said 'Yes, I will go, if you will go with me or somebody that is close to you. * * * Now, you know that there has been a rumor about my being accused of this crime and * * * what if I am on the way to New York and should be held up and this money taken away or what if I should bring the money to New York and they should accept it and not deliver the boy, or what if anything else should occur that might cause further suspicion on me? * * * I absolutely refuse to carry any money in this transaction, but will assist in every other way possible.'"

He describes the language used by O'Connell when he increased the ransom offer from $25,000 to $40,000: "Mr. O'Connell then said 'I found $15,000 that I didn't know I had and I want to send down $40,000. Strewl take it to New York and tell them that is the best I can do.'"

As to the addition of the $2,500, his testimony is substantially like O'Connell's. He says that when O'Connell, Jr., Strewl and himself arrived, O'Connell, Sr., "came out and shook hands with us and threw his arm over my shoulder and thanked me, and did the same to Mr. Strewl." From anything that appears in the record, Snyder is quite as entitled to be believed as O'Connell, Sr.

O'Connell, Jr., testifies that in the late afternoon of the first day he was in his place of confinement, defendant came into the room. This was long before Strewl had become the emissary for O'Connell, Sr. His testimony is: "Well, then next — that afternoon, or late in the afternoon I would say, there was a man came in and started to ask me about the go-between. * * * Why, my head — I was lying on my back, my left arm was attached to the bed with the handcuffs. Q. And were you able to see at all at that time? A. Yes, I could see. Q. Distinctly? A. Yes, I could. Q. How could you see? A. Why, under the bandage. It just came down to about the middle of my nose and I could see outside of each corner of the bandage, right through here [indicating]. Q. Now you say this other man came in there that evening? A. Yes sir. Q. Can you tell the jury who that man was? A. Yes sir. Q. Who? A. That man sitting right there [indicating defendant]. * * * He asked me if — to name some go-betweens, the men that were in the money and some local racketeers. * * * He walked right in the room and sat down on the bed. * * * I could see him out under the bandage. * * * Why he walked to me and then he sat on the bed and then after I told him quite a few names and they weren't satisfactory * * * 'why' he says 'you will have to have some — name some local racketeers that have money' and I started to name a few men that I knew and I says 'I don't know many racketeers around Albany' and he says 'Well, you will have to think it over a while' and he walked out of the room. * * * Why he came back in the room again and asked me some more names. * * * Well after that he came back in again * * * so I told him that was all I could think of, and so on, and so I said 'you better get in touch with Ed or Dan and ask the family. They can name more than I can. They know more people than I do.' * * * Well, after that they went out of the room and I was left to myself."

He did not see the defendant there again. At other places in his evidence he gainsays his statement that he could see. Describing the manner in which he signed his name to the ransom letters, he says: "They brought in a pen and a bottle of ink. Then the man would lift the bandage. I would be sat up in a chair. Q. Sat up and the man would lift the bandage? A. That is right. Q. And I think you said you would have to wait a few minutes until you could see. A. Yes sir, on some of the occasions. Q. And did you wait a few minutes so you could see on how many occasions? A. Well, I couldn't see the letters that I wrote within the first week that I had the bandage on me steady."

This claimed visit by the defendant was on one of the early days of the first week. On the cross-examination as to the claimed recognition, he gave the following evidence: "Q. What time was it that you say Mr. Strewl talked to you about a go-between? A. It was late that first evening or — Q. About what time? A. Well, I couldn't have any way of telling the time. I had no watch — Q. Well — A. Or couldn't see anyway. Q. You couldn't see? A. That is, couldn't — Q. It was dark? A. Couldn't see the watch if I did have one."

He describes the bandage: "Well, it was a piece of cotton maybe about six to eight inches long, just enough that it would cover my face, and that was bound with adhesive tape, and then there was a piece of gauze on that that went on both sides — just around my ears and up over the top of my head."

He says that he recognized Strewl as his visitor of the first day within a very few minutes after he got into the car en route for Albany. If this is true, it seems peculiar that he remained silent on Sunday morning as he sat in the room (as testified by O'Connell, Sr.) while the district attorney, chief of police and detectives questioned Strewl, and raised no objection when Strewl left the place a free man. Also, although as his uncle says, the district attorney and Captain Oliver questioned him that morning concerning the kidnapping, he remained silent for two days thereafter. In answer to the argument that this is explained by his shocked and dazed condition, it might be said that if he was not too dazed to recognize Strewl, he should have been able to talk.

Snyder says concerning the trip from New York to Albany, "He [O'Connell, Jr.] then threw his arm over Mr. Strewl's shoulder. He said 'I will never forget you either, Mr. Strewl, and if I can ever do you a favor I will do it.'" Further, bearing on the identity of those who came to the place of detention, "He said they disguised their voices by putting slugs or some insert in their mouths. He said their voices were all muffled, but he said 'I know that they were all Italians.' * * * I said, 'couldn't you identify any of them Johnny?' 'He said 'No.' He said 'my eyes were covered up and' he said, 'they are awful sore now.'" There was no rebuttal to this testimony. O'Connell, Jr., was quoted in an interview published in the Albany Times Union of July 31, 1933 (Monday), concerning his ability to identify the persons who came to the place where he was held a prisoner. "I spent the entire three weeks in that bed room on a bed. I occasionally heard voices in another room, but do not believe I could identify any of them. I was alone most of the time. My feet were tied together and I was handcuffed. This proved to be rather uncomfortable, but the only mark I have from it is a small one on one wrist. Several times I was given white pills of some kind. I don't know what they were, but they made me perspire and feel drowsy. Because of the blindfold I had no opportunity to see any of the persons guarding me. My eyes were not taped, except to hold the edges of the bandage. Several times I was required to sign messages sent to my family by the kidnappers. The latter were very careful that I should not see them on such occasions. The bandage was lifted slightly, just enough for me to see the edge of the paper where I placed my name. The bandage wasn't tight enough to hurt my eyes, and they suffered no serious effects from looking for three weeks at cloth." His uncle is also quoted in the same paper as saying, "He didn't recognize any of the men who guarded him."

The witness Gross, giving his residence as Toronto, Canada, states that on an occasion he went to the Century Hotel on Forty-sixth street in the city of New York, and to the room of a Margaret Campbell. "I came in there between 6:30 and 7:00 and I knocked on the door. * * * When I came in I was introduced to Manny Strewl and to John Oley. * * * Manny made the remark 'I heard about you.' * * * Phil Zigler and Al Fisher was lying on the bed there and they been smoking the pipe. * * * I suppose it is an opium pipe. * * * Manny Strewl was seated in the corner right next to Benny Olinski and John Oley was ready to leave the hotel — leave the room. * * * Then John Oley, Benny Olinski and Al Fisher got up from the bed and they left the hotel. Manny Strewl remained there with Phil Zigler and I. I heard Phil Zigler ask Manny Strewl 'How old is O'Connell? * * * How old is the old man O'Connell?' * * * and Manny Strewl answered 'he is a man about fifty.' Then he said 'what do you care for the old man O'Connell? If we can't get the old man O'Connell we will get the young man O'Connell, * * * because he is one child between three brothers and then his uncle will pay any amount without the law without the public shall know. * * * That is all I want from you Phil, you get the kid and get me a spot and I will take care of the money.' * * * Manny Strewl told it to Phil Zigler. * * * I and Manny Strewl and Phil Zigler went down in the elevator and went down on Broadway. While walking Manny Strewl made a remark to Phil Zigler, 'Phil, I will give you three days time to get the spot and the boy, and if not I am going to look up a different mob' and I left them."

In this witness' direct testimony he fixed the day of this conversation as the middle of the month of November, 1933 (more than four months after the kidnapping). On cross-examination he changes the date when he first met Zigler in New York to "Since July, 1933." Later he was asked: "When was this visit of yours to the Century Hotel" and he answered, "It was in August, 1933." Finally, however, he says that he was "mixed up." "I want to make it sure. In February, 1933. Q. February, 1933? A. Right. Q. Why did you tell me it was August, 1933? A. Well, I took it right back to make it sure. Q. I know you did. A. See? Q. But I want to know why you told me it was August, 1933? A. Because August I came into the Department of Justice and I remember the date. That is why I was getting mixed up. Q. What was the date that you came in here to the Department of Justice? A. The 17th." The witness says that he had known Zigler in Detroit and New York for six years; that he had known Olinski from January, 1933, but did not know his business. He says concerning Zigler: "I know he has got big mob connections. He was connected with big mobs. * * * He told me that, yes. * * * He mentioned that — kidnapping mobs. * * * He told me that when I came in here in January, * * * 1933. * * * Q. You had been looking for him and after that, of course, you associated with him all the time you were in New York, every visit you made? A. Right. Q. Knowing that he was a kidnapper? A. Right. Q. Knowing that he was a gangster? A. Right."

In 1933, at about the time of the Jewish Easter (early April) Zigler, Fisher and Olinski went to the home of Gross in Toronto and stayed there three weeks. According to the witness they would come into the house at two or three o'clock in the morning after he had gone to bed, and would be sleeping when he left for business. Their visit terminated when the Toronto police arrested them for possessing burglar tools. During their visit "They been talking kidnapping a fellow by the name of Mush Trackner." (This is one of the names contained in the list published by the O'Connells as a proposed go-between.) Further conversation during this visit at the Gross home in April, 1933, is disclosed by the following questions and answers: "Q. And yet, of course, you can't tell me what you and these three kidnappers talked about up in Toronto, can you? A. Well, I tell you we talked — Q. I mean, you forget that? A. We talked the O'Connell case? I forget that. Yes sir."

The witness says he did not see his guests from April until in August, 1933. If this man's evidence be true, for months he had knowledge of this proposed kidnapping and made no disclosure to prevent the perpetration of this most serious crime. The reason he gives for finally telling the story is illuminating: "Q. And I suppose when you heard that John O'Connell was kidnapped that you felt some guilt about it yourself? A. No. Q. Having heard the plot made to kidnap him, didn't you feel that — well, didn't your conscience feel rather guilty? A. Not when I been reading the papers about it, no. Q. Not when you were reading the papers about it? A. Right. Q. Well, when did your conscience begin to feel guilty? A. When I saw this man's picture in the paper, the Chicago man's picture in the paper and with the story in the paper or statement of President Roosevelt that everybody should try to get the kidnappers of John O'Connell. That is the time. Q. That is the time when your conscience began to feel guilty? A. Yes, sir."

The story which the witness tells as to the reason for his visit to New York in February, 1933, is fantastic and chimerical. Comment upon his evidence and the credence which it should receive is unnecessary.

Three handwriting experts were sworn by the People. They expressed the opinion that the letters were written by the defendant. The force of the evidence of the handwriting expert sworn on behalf of the defendant was entirely destroyed on cross-examination. He was confronted with a letter which he had written the district attorney wherein he expressed the opinion that the defendant wrote the ransom notes. His testimony to the contrary has little value.

Concerning the legal errors committed on the trial. The defendant sought to prove his statements and communications made to Attorney Snyder while they were going to New York and while there with the ransom money. Snyder was permitted to tell of Strewl's movements and acts on that Friday night and Saturday, so far as known to him. Strewl left Snyder late Friday night and after an absence of some hours, returned. Snyder was permitted to tell that he telephoned O'Connell, Sr., that the kidnappers had refused the money brought down from Albany because they believed it to be marked and of the arrangements as to the exchange of that currency at a bank, but nothing that Strewl said to Snyder explanatory of his goings and comings was allowed. The acts and movements of Strewl were admissible and his statements which were excluded were likewise admissible to show his intent and the purpose of the acts. Such statements have been defined as "verbal acts." ( Bishop v. New York Times Co., 233 N.Y. 446; Cyrowski v. Polish-American Pub. Co., 196 Mich. 648; 163 N.W. 58; Weston v. Barnicoat, 175 Mass. 454; 56 N.E. 619; Hubbard v. Allyn, 200 Mass. 166; 86 N.E. 356; Hine v. N Y Elevated R.R. Co., 149 N.Y. 154, 162; 2 Ford Ev. 892, § 170.) At the time these statements were made the crime was still continuing. Defendant's contention is that he was acting innocently as the agent for O'Connell, Sr., in the negotiations for the release. The contention of the People is that he was one of the criminals, and that all his acts and statements were those of a guilty man. The jury was to decide whether he acted with a guilty or innocent intent. His statements that accompanied the acts would aid the jury in deciding. ( People v. De Simone, 225 N.Y. 261, 265; Crenshaw v. State, 205 Ala. 256; 87 So. 328; Grimes v. State, 68 Ind. 193; Garber v. State, 4 Coldw. [Tenn.] 161; Brown v. State, 74 Tex. Cr. 356; 169 S.W. 437; Hine v. N.Y. Elevated R.R. Co., supra.) I quote from the opinion in the New York case last cited: "The ruling of the court was within the general principle, that when an act or transaction is itself admissible, statements or declarations of the party at the time, calculated to explain and elucidate the character and quality of the act and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible as part of the res gestae. ( Waldele v. N.Y.C. H.R.R.R. Co., 95 N.Y. 278; Wilcox v. Green, 23 Barb. 639; Greenleaf on Ev. §§ 108, 109.)" ( supra, p. 162.)

Defendant at the request of O'Connell, Sr., and with the approval of the public officials, made the trip to New York. O'Connell, Sr., had written a message to be carried by Strewl that he was O'Connell's friend and on his business. It was necessary that Strewl contact and deal with the kidnappers in order to carry out his mission for O'Connell. Now that the O'Connell attitude of friendship and trust has changed to accusation, and Strewl is charged with criminality, his every act, with the accompanying statements and declarations which are "calculated to explain and elucidate the character and quality of the act," are admissible, that the jury may decide whether Strewl acted as O'Connell's friend and agent or as a criminal. The exclusion of this evidence was a repudiation of the presumption of innocence. (3 Wigmore Ev. [2d ed.] § 1732.) In this connection the author says: "Then it is further suggested that at any rate the accused, if guilty, may have falsely uttered these sentiments in order to furnish in advance evidence to exonerate him from a contemplated crime. But here the singular fallacy is committed of taking the possible trickery of guilty persons as a ground for excluding evidence in favor of a person not yet proved guilty; in other words, the fundamental idea of the Presumption of Innocence is repudiated." (p. 713.)

Upon the same principle, Strewl's declarations to Snyder before going to New York and not in the presence of O'Connell, Sr., were admissible. O'Connell, Sr., met with Strewl and Snyder, his attorney, and expressed confidence and faith that Strewl was his helper and friend, and approved the arrangement that Snyder should represent and protect Strewl, and offered to pay Snyder to act as Strewl's attorney. Now, when the prosecution changes this attitude and seeks to establish that Strewl, a guilty man, sought Snyder's aid to protect him from the consequences of his guilty every physical and verbal act should have been received that the jury might determine the intent.

The charge is very brief, using less than sixteen of the twelve hundred and nine pages of the record. No exception was taken. It does little more than to recite the rules required under the statute, and the theory of the prosecution. It will be read in vain to find an affirmative statement that defendant should not be convicted if he, as O'Connell's agent, met and associated with the kidnappers in an effort to effect the release of O'Connell, Jr. By some, criminality might be assumed for such acts because of the general inhibition against bribery and the condonation of felonies.

James O'Connell (not a relative of the Albany O'Connells) was the only detective called. From his testimony it appears that others were present during the conversations at the O'Connell residence on the Sunday when O'Connell, Jr., returned; that he assisted Detective Dolan in arresting the defendant about midnight on Sunday. Dolan, according to O'Connell, "scuffled" with Strewl so forcibly that ten days later Strewl had a black eye. O'Connell and two other detectives were present while Strewl was required to print the exhibits that were used by the handwriting experts. The court, by granting a request made by the district attorney, left the jury to imply that the presumption that arises on the failure of a party to call a witness who is under his control did not apply to the failure to call these additional detectives for the reason that their testimony would be cumulative to that given by O'Connell. Under the circumstances this was error.

During the cross-examination of O'Connell, Sr., defendant's attorney asked whether he had made the statement attributed to him that appeared in an Albany newspaper of July 31, 1933. The court stated, "No, I am not going to permit you to read the statement from a newspaper. If you want to refresh his recollection from a newspaper, you can ask him to read the statement." This was an incorrect ruling. It was not cured by permitting the later questions concerning fragments of the statement.

A magnifying glass not in evidence was in the jury room. This would not be very harmful except that the defendant's attorney in his summation, referring to printing which the witness Gross had done at his request, pointed out the similarity between it and the ransom notes. This was answered by the district attorney with the assertion that the defendant's discredited handwriting expert had tampered with the exhibits after Gross had written them. There was no evidence to this effect; however, the district attorney stated concerning the Gross exhibit: "If you take it, if it is given to you afterwards, and you have a glass in your jury room, just look at it and see for yourselves and determine for yourselves whether or not this man [the defendant's handwriting expert] didn't do something with that exhibit that he wanted to get." With such a statement in the summation, the investigation as to who caused the magnifying glass to be sent to the jury room was hardly necessary.

After the jury had returned a verdict of guilty, an information was filed under section 1943 of the Penal Law (added by Laws of 1926, chap. 457) and a hearing had as to whether Strewl had been convicted in the United States court for burglarizing a freight car. The judge who presided at that trial had been the United States District Attorney at the time the indictment for burglary was returned. The court stated: "Well, I will admit, for the purpose of the record, that I was United States attorney for the Northern District of New York at the time of the return of the indictment against this defendant." The issue on trial there was not kidnapping but concerned a matter in which the judge had been an attorney. (Judiciary Law, § 15; People ex rel. Kennedy v. Gill, 147 App. Div. 924.)

The defendant was arrested around midnight on the day on which he had returned from New York with O'Connell, Jr. His condition ten days later when he was in court on a writ of habeas corpus indicates, as does the testimony of Detective O'Connell, that he was roughly handled. At the time of the arrest, the detectives had no evidence, which has been produced upon the trial, that indicated his guilt. They had examined O'Connell, Jr., that morning but, if his testimony be true, he did not then tell that he recognized Strewl as having been in his room at the place of detention. If reliance is to be placed on anything that Gross said, that was not known to the detectives, for he told no one until just prior to August seventeenth, and of course, the handwriting experts had not then been consulted, as Strewl wrote the standards for comparison after his arrest. If there be more evidence, and that which justified these officers in what seems to be a high-handed proceeding, it should have been placed before the jury.

O'Connell, Sr., through his advertisement and emissary, Tommy Dyke, first met Strewl. There is no indication of guilt in their subsequent meetings and transactions. Strewl, if innocent, accepted a dangerous commission. He was intrusted with $42,500 with instructions to pay it as ransom. He effected the release for $40,000 and returned the balance to O'Connell. This is strange conduct if he was one of the kidnappers. He is accused by Gross, who shows himself to be unworthy of belief, because, if his story be true, he knew that the kidnapping was to take place for months in advance of the event, but told no one. Also, the details of his story are not impressive. The handwriting experts gave opinions founded upon stated reasons. Giving full force to the reasons and theories of the experts, the comparison of the ransom notes with the standards does not convince one beyond a reasonable doubt that defendant wrote the ransom notes. In fact, the variances between the two outnumber the similarities. It should be remembered that the ransom notes were hand printed with a pen. Printing is not as readily identified as script. Lastly, we have the identification by O'Connell, Jr. I have earlier referred to his contradictory statements and his failure to give the vitally important information which he says he had, when it would have been most natural that he should tell. Evidence is now easily available that will tend to clear up some of the uncertainty as to the claimed identification by O'Connell, Jr. There appeared in the Albany Times Union of Monday, July 31, 1933, two verbatim statements, one by O'Connell Sr., the other by O'Connell, Jr. The latter stated his inability to recognize those who were in his room at the place of detention, and O'Connell, Sr., quoted the younger man as being unable to recognize any of the men in the room. These statements were categorically denied by the O'Connells, but the fact remains that either the statements were made or this reputable newspaper was guilty of an intentional misstatement. An examination of the paper (Exhibit C for identification) discloses the general news article accompanied by the two quoted statements where each of the O'Connells speaks in the first person. The reason may only be conjectured for the failure of the defense to call the newspaper reporters and editors as to the making of these statements. The recent judicial history of the State furnishes a reasonable explanation. Many reporters and editors, with the approval of some attorneys, have asserted that communications to them and their sources of information were privileged. The error of this assertion has been finally determined. ( People ex rel. Mooney v. Sheriff of N Y County, 269 N.Y. 291.) Upon another trial there will be no uncertainty on this issue, and the evidence will be available. If it then appears that these statements were made, it will furnish another strong contradiction to the claim of identification.

One of the most serious of crimes has been committed. It is important that the perpetrators be apprehended and convicted. It is equally important that this defendant shall not remain in prison the remainder of his life unless his guilt be established beyond a reasonable doubt, after a trial without the substantial errors here mentioned.

I favor a reversal of the conviction and a new trial on the facts and in the interest of justice, and upon the law because of the errors assigned.

CRAPSER, J., concurs; RHODES, J., concurs, except as indicated in the following memorandum: