People v. . Brown, 72 N.Y. 571

Church, Ch. J.

Thе defendant in error, while upon the stand as a witness in his own behalf, was asked on cross-examination the following question: “ How many times have you been arrested ? ” This was objected to on the ground that it was incomрetent to affect his credibility as a witness; that it tended to degrade the witness; and that he was privileged from answering it, as it had no direct bearing upon any issue in the case; and also upon the ground that better evidence of the fact existed. The court overruled the objection, and the answer was given “five timеs, I believe.”

The General Term held this to be error, upon the ground that it was not competent evidence bearing upon the credibility ‍‌​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​​​‌‌‌​​​​​‌‌‌​‌​‌‌‌‌​‌‌‍of the witness. It would not be competent to introduce evidence of particular facts to impeach the witness; but the authorities recognize a distinction between indеpendent evidence introduced for the purpose of impeaching a witness, and the questions whiсh are permitted, in the discretion of the court, to be put to a witness, tending to affect his credibility. (Brandon v. The People, 42 N. Y., 265-268; 1 Green. on Ev., §§ 456, 461.)

I think it was рermissible to ask the defendant in error questions as to particular facts, although such evidence wоuld not be received from impeaching witnesses. But I agree with the learned judge, who delivered the oрinion of the court below, that the evidence sought to be obtained must legitimately tend to impair the сredit of the witness for veracity, either directly or by its tendency to establish a bad moral character. I deem it unnecessary in this case to determine whether this evidence would or not have that effeсt, because another ‍‌​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​​​‌‌‌​​​​​‌‌‌​‌​‌‌‌‌​‌‌‍objection was distinctly taken, upon the ground of privilege, which I think fatal. I understаnd it to be conceded by the counsel for the people that this objection would "be valid if it had been taken by the witness himself instead of the counsel, and the case shows that the county judge entertained the same view. Such is the rule as to a witness who is not himself a-party. It is, then, a question between the witness and the court, with which the party has nothing to do, and with which the counsel of the party has no right to interfere. (Cloyes v. Thayer, 3 Hill, 564 ; Southard v. Rexford, 6 Cow., 254, and cases cited.)

The party cannot avail himself of an error in allowing or refusing the privilege. But when the witness is also the party, I see no reason for the application of this rule. By taking the stand as a witness, while he may subject himself tо the rules applicable to other witnesses, he is not thereby deprived of his rights as a party, and it follows that his counsel, while he is in the witness box, has a right to speak for him, and that an error committed by the court against him may inure to his benefit as a party. Especially ought this protection to be afforded to persons on trial ,for criminal offenses, who often by a species of moral compulsion are forced upon the stand as witnesses, and being there are obliged to run the gauntlet of their whole lives on crоss-examination, and every immorality, vice or crime of which they may have been guilty, or suspected оf being guilty, is brought out ostensibly to effect credibility, ‍‌​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​​​‌‌‌​​​​​‌‌‌​‌​‌‌‌‌​‌‌‍but practically used to produce a conviction fоr the particular offense for which the accused is being tried, upon evidence which otherwise would be deemed insufficient. Such a result is manifestly unjust, and every protection should be afforded to guard against it.

I am of opinion that the witness was privileged from answering the question and that the objection was well taken by his counsel, and that the exception is available to him. Neither in the Brandon Case (42 N. Y., 265) nor in the Connors Case (50 N. Y., 240) was the question of privilege presented, and in the latter case the objection was put upon the constitutional ground that the prisoner could not be compelled to be a witness against himself, which was- overruled on the ground thаt having voluntarily become a witness ‍‌​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​​​‌‌‌​​​​​‌‌‌​‌​‌‌‌‌​‌‌‍without raising the question of compulsion, he waived the constitutional рrotection, and rendered himself amenable to the obligations of a witness. The question was not prеsented whether the evidence sought would tend to affect credibility, and in the Brandon Case the objection was put specifically upon the ground that the character of the witness who was a party could not be аttacked, as she had not put it in issue, and the court merely held that having offered herself as a witness in her own behalf, she was subject to the same rules as other witnesses. In the Real Case (42 N. Y., 270) the witness was not a party, and the privilеge of ‍‌​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​​​‌‌‌​​​​​‌‌‌​‌​‌‌‌‌​‌‌‍not answering was offered to him by the court.

I am of the opinion that the cross-examination оf persons who are witnesses in their own behaf, when on trial for criminal offenses, should in general be limited tо matters pertinent to the issue, or such as may be proved by other witnesses. I believe such a rule neсessary to prevent a conviction for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided practically by the observance оf this rule.

There are other exceptions which might be noticed, but as a new trial must be had, it is not deemed nеcessary, as the same questions may not again arise.

The judgment of the General Term must be affirmed.

All concur, except Folgee, J., not voting ; Earl, J., concurs in result.

Judgment affirmed.

Case Details

Case Name: People v. . Brown

Court Name: New York Court of Appeals

Date Published: Feb 19, 1878

Citations: 72 N.Y. 571; 1878 N.Y. LEXIS 547

Court Abbreviation: N.Y.