187 A.D. 299 | N.Y. App. Div. | 1919
Lead Opinion
This is an appeal by the defendant from a judgment of the County Court of Kings county convicting the defendant of the crime of assault in the second degree as a second offense, and sentencing him to imprisonment in the State prison under an indeterminate sentence, the maximum thereof being five years and the minimum two years and six months, upon a verdict of guilty rendered at a trial term of said court, May 17, 1918.
The testimony of the complaining witness was clear and positive to the effect that the defendant committed upon her the assault charged in the indictment, and was to the following effect. She was nineteen years of age, and on Good Friday, March 29, 1918, was working as a governess in charge
Defendant, testifying in his own behalf, denied that he committed the assault and gave a detailed narrative of his movements upon that day, which, if correct, establish 'd an alibi in his favor. His cross-examination was very complete, but revealed no other prior criminal conviction than the assault in the third degree charged in the indictment as a prior offense. In his behalf five other witnesses testified corroborating him as to the alibi. The testimony of three of them so corroborating him did so quite directly. The gist of their and his story to that effect was that they were riding about town in an automobile, stopping at various places, at and for some hours before and after the time of the alleged assault.
Appellant’s counsel practically admits, in his points, that the evidence presented a sharp issue of fact, which the jury,
Appellant’s main contention here is that divers.acts and remarks of the trial judge were prejudicial to the defendant, so much so as to constitute reversible error. The instances cited in support of that contention are: (a) A certain cross-examination by the judge • of Accurso, one of the leading alibi witnesses for the defendant; (b) the action of the judge in practically committing that witness to the custody of a court officer, wherein it is claimed by appellant he was kept until the close of the day’s session; and (c) the action of the judg3 at the close of that session in delivering a denunciation of that witness in open court, and in denying the motion, made by defendant’s counsel at the resumption of the trial on the following morning, for a mistrial upon the ground of that denunciation.
As to the first of those specifications, I think that the cross-examination by the judge, referred to, did not constitute reversible error. The record shows that the judge did not indulge much in questioning witnesses and that that instance was exceptional. The only thing about it subject to criticism was his suppression of defendant’s counsel when, he attempted to interpose an objection, to the judge’s line of inquiry, viz.: “Mr. Brancato: I don’t want to interrupt your Honor’s question— The Court: Overruled. Counsel will resume his seat.” The judge should have listened to counsel’s objection and ruled upon it without reprimand, express or implied. If the record showed repeated instances of such action I would regard it as amounting to reversible error, but the instance seems to be a solitary one. From the brief of appellant’s counsel it appears that the objection which counsel wished to present was that it was improper upon cross-examination to ask the witness, in effect, if he did not know or suspect that the automobile tires, which it was claimed for the defendant the party was trying to sell, had been stolen. I think that such a line of interrogation was entirely proper upon cross-examination, so as to affect the credibility of the witness.
As to the second specification of error above stated, viz.,
As to the third specification, namely, the extreme denunciation addressed by the trial judge to the witness,- in open court, at the conclusion of the day’s session but after the judge had dismissed the jurors and they had retired from the court room, it may well be said that those remarks of the judge were most extraordinary, viz.: “ Mr. District Attorney, how can we hold this man for perjury so that he can go on his way to Sing Sing? I am sick and tired of the thugs like that that are entrusted with taxicabs. God help the poor fare that goes into a taxicab operated by a man like that. He would rob him or do anything to him. He is the perfect type of the taxicab robbers of Greater New York that are worse than all the thieves of Europe. Is there any way that we can hold this man for perjury so that I can send the case to the grand jury so that he can be held and indicted for perjury? His testimony is a tissue of lies. The defendant will be convicted on his testimony alone, if nothing else, and I hope that you
Moreover, I think that it is the duty of a trial judge, at least upon the vital issue in the case where there is evidence pro and con, to hold his mind open until after he has listened to the summation of counsel. According to general practice
I am convinced that because of the conduct of the trial judge in reference to the witness Accurso as above reviewed “ justice requires a new trial ” within the fair meaning of section 527 of the Code of Criminal Procedure defining our power and duty in that regard.
The record presents also a substantial legal error in the reception of evidence to the great prejudice of the defendant, although the same was received without defendant’s counsel having made definite objection. A detective sergeant in the police force, as a witness for the People, testified that on the day after the assault and after the defendant had been arrested, he took him to the Kings County Hospital, where the complainant lay in bed with her head bandaged, and that he let her look at the defendant and asked her if she had seen him before, and she said “ Yes,” that he was the man who had assaulted her. Defendant’s counsel did not object, but upon cross-examination of the witness elicited the fact that when the girl made the statement, defendant was standing at some little distance, “ About ten feet from the door leading to the room.” Thereupon he moved to strike out the evidence upon the ground that the girl’s statement was not made in
In People v. Conrow (200 N. Y. 356) it was held that where the defendant, under very like circumstances, refused to say anything, viz.: “I won’t say” (at p. 365), the evidence of what the alleged accomplice, who had turned State’s evidence, said in his presence was incompetent, although the accomplice then and there called upon him to deny or correct if what he said was not true. In the instant case the defendant by action refused to speak, and also he was under arrest, in the actual custody of the police officer, and not a free agent. Moreover, no inquiry or appeal to him for statement was made by either the girl or the officer. Indeed, the officer had before, but not in the presence of the girl, asked him if he had committed the assault, and for aught that appears he had already denied to the officer that he had committed it. That seems to be the fair inference, because if he had admitted such fact to the officer, it is inconceivable that the learned and experienced district attorney did not prove that admission. The error in receiving that testimony, in view of its character as very damaging to the defendant, is so manifest as to require a new trial upon that ground alone. (People v. Visiconti, 182 App. Div. 894.)
I advise, therefore, that the judgment of the County Court of Kings county be reversed and 'a new trial ordered in said
Blackmar, J., concurred on the ground that the remarks made by the court to the witness were made in the presence of the defendant and of his counsel during the trial, and tended to produce a moral duress which prejudiced the defendant in the continuance of the trial, with whom Kelly, J., concurred; Putnam, J., read for affirmance, with whom Jenks, P. J., concurred.
Dissenting Opinion
The court’s action in detaining the defendant’s witness Accurso was proper. He was not rebuked until after the jury had retired. This court has laid down the procedure in such a case: “ The witness may be detained in court until the jury has retired before the judicial rebuke is administered.” (People v. Criscuoli, 164 App. Div. 119, 123.) I see no error in first telling the witness to step into a side room, since announcing a direction to hold him in the court room might become more noticeable to the jury. The jury subsequently retired. The court directed that the others should not leave the court room. After the jury’s retirement he spoke freely and with unreserve, such as might occur in course of an argument over the admissibility of testimony had in the jury’s absence.
Any remarks thus made to the district attorney cannot be held to affect the verdict, unless this court is to go far beyond precedent in criminal appeals. Can we assume misbehavior by the jury and by the court officer? After such adjournment is it to be presumed that the jury not only violated the court’s directions which so far as outside influences are concerned complied fully with Code of Criminal Procedure, section 415, and then infer that Officer Wellwood, in charge of them, was guilty of breach of his sworn duty as their custodian, under Code of Criminal Procedure, sections 414 and 421? Only on such suppositions, barren of the slightest support, can we say that the court’s animadversions reached and influenced the jury. The testimony that the day following this assault defendant was recognized by the woman assaulted
Where the record shows no good exception to any ruling or instructions during the whole trial, and where the People’s evidence was met by a weak alibi, I cannot reverse a conviction because of the court’s outspoken remarks about a witness, made after the jury’s retirement.from the court room.
Jenks, P, J., concurred.
Judgment of conviction of the County Court of Kings county reversed, and new trial ordered.