90 N.Y.S. 706 | N.Y. App. Div. | 1904
The only questions presented by this appeal which require consideration are those raised by objections and exceptions taken by defendant’s counsel to the admission of certain evidence by the learned trial court.
The defendant, at the time of the alleged forgery, was, and for several years prior thereto had been, in the employ of one B. W. Soper, who conducted a retail grocery store in the city of Syracuse, FT. Y. The defendant occupied the position of financial man, had supervision of the books, made collections from customers, made deposits in the bank, had charge of the bank account and, generally, of the finances of the business. For the services so rendered the defendant received from ten to twelve dollars per week.
The People were permitted to introduce in evidence the defendant’s account with the Syracuse Savings Bank, the Onondaga County Savings Bank, and the Trust and Deposit Company of Onondaga, contained in the pass books issued to the defendant by said banks respectively, covering the period from September 18, 1899, to and including the 24th day of August, 1903, and which showed the deposits made by the defendant, which averaged about three a week of five dollars at least during a portion of the time. This evidence and all of it was objected to by defendant’s counsel and an exception was duly taken to the ruling of the court admitting the same.
It is not contended that the avails of the note in question or of any of the notes of similar character were included in the money so deposited by the defendant. Bor is there any evidence to indicate that the money so deposited was not the money of the defendant and obtained by him in a perfectly legitimate manner. There is no item of evidence from which the inference could bo drawn that the defendant was not a man of property and entirely able to make the deposit shown from liis earnings or other sources of revenue, unless such inference may be drawn from the fact that he was working for
In other words, broadly stated, evidence was permitted to be introduced for the purpose of proving that the defendant was guilty of embezzlement to the end that the jury might be asked to infer that defendant’s motive in forging the. note in question was to enable him to prevent the discovery of such embezzlement. We think the evidence incompetent for the purpose or for any purpose. The defendant was on trial charged with having procured a certain note to be forged. Hpon the trial of that charge it was not competent to prove that three years before or during a period of three years, he had embezzled money from his employer, and that he was guilty of that crime. There is no connection between the two. The acts by which one was consummated in no manner relate to the acts by which the other was perpetrated. They did not even occur at or about the same time and were entirely different in their character.
In the case of People v. Dickie (62 Hun, 400) the defendant was upon trial for forgery for having without authority filled in the blanks in certain checks intrusted to him by his employers, and in that case proof was admitted which tended to show that the defendant had been guilty of embezzlement. The court said: “ But we think there was error prejudicial to the defendant in permitting Mr. Crego, upon his evidence in chief, to testify to the discovery of shortage in Dickie’s account generally to the amount of about two thousand seven hundred and seventy-five dollar’s. This was doubtless admitted upon the question of fraudulent intent, but it had no just bearing upon that question. It simply tended to show that Dickie was a faithless cashier, and that for an indefinite period he had been
The language of the court is particularly applicable to the facts of the case at bar. As we have seen there was no connection between the embezzlement of Soper’s money by the defendant and the forgery charge upon which he was being tided.
“It is an elementary principle that the commission -of one crime is not admissible in evidence to establish the guilt of a party of another. But if the evidence is material and relevant to the issue, it is not inadmissible simply because it tends to prove the defendant guilty of another crime.” (People v. McLaughlin, 150 N. Y. 365.)
It is hardly necessary to say that the evidence being considered Was harmful to the defendant. The fact that the defendant deposited this considerable sum of money, five dollars at a time, and that he was working for less than fifty dollars per month, might very well have suggested to the jury that the money so deposited was not obtained legitimately. But it is hardly necessary to discuss the question whether or not the evidence was in fact harmful, because of the practical concession of the district attorney that it Avas so, and that it was so intended. At all events, the respondent has not demonstrated that the admission of the evidence was not prejudicial to the defendant. In People v. Smith (172 N. Y. 243) the court said: “ The burden of showing that the illegal and improper evidence which was received was harmful is not upon the appellant, but that it was harmless and could by no possibility have prejudiced him must be established by the respondent,” and many cases sustaining that proposition are cited by the learned court.
The defendant is in no manner precluded from insisting upon a reversal of the judgment for the admission of the illegal and incompetent evidence because of the fact that he himself went upon the
The conclusion is reached that the evidence adverted to was illegal and incompetent; that its admission was prejudicial to the defendant, and for that reason that the judgment and order appealed from must be reversed. Having reached the conclusion indicated, it is unnecessary to consider any of the* other questions presented by the exceptions.
All concurred, except Spring and Williams, JJ., who dissented.
Judgment of conviction and order reversed and new trial ordered upon questions of law only, the facts having been examined and no error found therein.