63 Barb. 618 | N.Y. Sup. Ct. | 1872
Upon the-trial, the prisoner became a witness on his own behalf. On his cross-examination by the district attorney, he testified that he had
It is now conceded that the record of conviction was inadmissible, even in connection with the testimony aliunde, that the prisoner was the person named in it. This is no doubt correct. The same rules of evidence must govern the examination of a prisoner, when he avails himself of his privilege to become a witness, as apply to any other witness. One of these is, that a party cannot, upon cross-examination of a witness for the adverse party, draw out collateral statements, not material to the issue on trial, and then contradict such statements. He is concluded by the answer of the witness.
We think this rule.was violated, in this case. Although the decision of the court was, that the evidence objected to was immaterial without further evidence connecting it with the prisoner, yet the evidence was admitted. It should have been rejected altogether. It is impossible to say that the prisoner was not prejudiced by itor that the rejection of the evidence offered, to show the identity of the prisoner as the person named in the record, cured the error. The record was in, and in the absence of testimony on that subject the^ury had the right to draw the inference of identity of person, from the identity of name.
The remarks of the judge, on this subject, in his charge to the jury, were too restricted to obviate the effect which must have been produced by the record. He should have withdrawn it from the consideration of the jury, and have told them, distinctly, to disregard it. Hot having done so, the error remains.
We think, also, that the court erred in rejecting evidence of the nature of the disease which the prisoner had. Taken in connection with the prisoner’s testimony, it was certainly competent. It may have been inconclusive, or of little weight, but competent evidence cannot be rejected on that ground. ■ '
For these reasons, the judgment below must be reversed, and a new trial must be granted to the prisoner.
Ingraham, Leonard and Gilbert, Justices.]