22 N.Y.S. 478 | N.Y. Sup. Ct. | 1893
I think an error was committed upon the trial in overruling plaintiff’s objections to the evidence offered by defendant, to show that she had been taken to Sandy Hill, and fined $100. This evidence was irrelevant to the case on trial, and may have had some influence upon the jury. It is held that illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies, or influence the judgment of jurors rriay not be considered harmless. Hutchins v. Hutchins, 98 N. Y. 56. Although this evidence was improperly received, the error could have been cured had the court afterwards struck out such evidence, or directed the jury to disregard it. The remark of the judge, that “whether there have been prosecutions of criminal nature for offenses of this nature or not * * * is no concern of yours,” cannot" be deemed a striking out of the evidence in question, or a direction to the jury to disregard it. To remedy an erroneous reception of evidence, it must be plainly stricken out, or the jury must be distinctly told to disregard it. The above-quoted instruction of the trial judge is ambiguous, and does not come up to this requirement. Again, the judge was requested to charge that defendant may be liable civilly, although she may have been prosecuted criminally for the same offense. He declined to so charge, on the ground
