66 N.Y.S. 889 | N.Y. App. Div. | 1900
A careful reading of the evidence bearing upon the question of defendant’s guilt leads us to the conclusion that it was such as to require the submission of that question to the jury. It will, therefore, be unnecessary to review the evidence, except so far as it may be material to the discussion of the questions raised by the objections and exceptions taken by the defendant during the progress of the trial.
The first objection and exception to which attention is called relates to a statement made by the learned district attorney in opening the case to the jury. The district attorney said: “We expect to prove that within the last six or eight years this defendant has had at least six fires destroying his property, which was insured, and where he obtained the insurance money every time up to this time. I shall offer that proof.”
“ The defendant’s counsel objected to his going further with this statement about former fires that Milks' had had, and to his stating further upon that subject, and to the statement which has already
The statement standing alone, having been objected to and an exception taken by the defendant, clearly constituted reversible error within the decision in People v. Smith (162 N. Y. 520). Upon the trial of that case, which was upon an indictment for arson, in opening the case to the jury the district attorney said: “We shall show you, if permitted, that before this fire, which occurred at the Boulevard, in which some seven buildings owned by the mother and family of this defendant were burned, many other buildings which this defendant had assisted in erecting, or in which he was interested, were destroyed in a similar manner. Within less than a year before the fire on the Boulevard —.”
At this point and before the statement was completed, the defendant’s counsel objected that it was improper. The objection was overruled by the court, to which ruling an exception was taken, whereupon the prosecuting attorney remarked: “ If counsel insists upon it, I will not go into the matter at this time.”
The Court of Appeals held that the statement was improper; that it might have been prejudicial to the defendant, and have caused the jury to infer “ that they were dealing with an old offender,” and for such error the judgment of conviction was reversed.
In the case at bar it is insisted by the learned district attorney that the error was cured because later in the case he offered to prove the facts stated in his opening. Upon the direct examination of one Arthur G-. Reynolds, called as a witness by the People, who was
We fail to see how the fact that the incompetent proof referred to in the opening was subsequently offered by the People, could cure the error or in any way militate against the force of the improper statement. In .the case of People v. Smith (supra) the district attorney did not offer to prove the facts stated by him in his opening address. In speaking of 'that feature of the- case the court said: “ If the district attorney had the- right to make the proof he proposed, he did not make it, and thus may have prejudiced the
After pointing out that it would have been error to have received proof of the facts contained in the statement made in that case, the court said : “ It is difficult to lay down an inflexible rule applicable to irrelevant statements by the public prosecutor to the prejudice of the defendant. In some cases it is manifest they do no harm. In others, where the case depends upon a mass of circumstances, many of which are contradicted, others equivocal except as light is reflected upon them by their association, it is more important that nothing but proven and relevant facts should be brought into the whole field of observation from which the jury are to deduce their conclusion. And as the field enlarges it is the more important that care should be taken to prevent the mingling of mere statement with fact. Enough has already been said to show that the case before us is of the latter kind. If the court had sustained the objection of the defendant, the jury would have been instructed as to the range of the inquiry. As the court overruled it, they understood the district attorney to be speaking within proper limits, and they might have inferred that they were dealing with an old offender.”
The remarks are especially applicable to the case at bar. This case depends upon a mass of circumstances, many of which are con-: tradicted, others equivocal, except as light is reflected upon them by their association. From the statement of the district attorney, from the question propounded to the witness, which contained a restatement of the facts even more pointedly put, and from the remarks of the learned court, it is highly probable that the jury were led to believe that the defendant had committed the crime of arson upon at least five occasions within six years prior to the time of the trial. The jury were not instructed by the court that the statement made by the district attorney, the offer to prove which was but a reiteration of such statement, should not be regarded by them or influence their verdict, or that they should not consider that the facts stated by the district attorney existed; except that the court, at the close of its charge, in answer to the request of defendant’s counsel: “ I ask the court,.in, view of what counsel stated when he was summing
In response to such request the court said : "Yes; I so charge.”
In his remarks in excluding the evidence the trial, judge apparently assumed that the facts did exist as stated by the district attorney, and as he offered to prove them. The language of the court is : “ It hardly seems that where a similar act was done so remote from the time when this offence was committed, * • * * and if you can supply proof to connect these fires, possibly that might make a difference; ” assuming that the “ act ” had occurred and that “ these fires ” had taken place. At least the language of the court was such as would naturally lead a jury to infer that the facts as stated in fact existed, and, if so, they would influence their deliberations unfavorably to the defendant.
Assuming that the decision of the Court of Appeals in People v. Smith is authoritative upon the question that the statement made by the district attorney in his opening in that case constituted reversible error, it would be absurd to hold that such error could be cured by again, during the progress of the trial, specifically calling the attention of the jury to it, and giving it emphasis by calling a witness or witnesses to prove such alleged incompetent facts, Avhich were all embraced in the questions propounded. It does not follow that it is prejudicial error for a prosecuting officer to offer incompetent evidence which is rejected by the court, but we think the rule, which we consider a wholesome one as applied to the trial of. criminal cases, may be regarded as settled, to wit, that if a prosecuting officer, in opening a case to the jury, makes a statement of facts which are irrelevant, ■ incompetent and inadmissible, and clearly prejudicial to the defendant, and which are duly objected to and an exception taken, it will constitute reversible error, unless the court, by appropriate language, instructs the jury that such statement of facts should be disregarded by them, and that such alleged facts ought not to be permitted to influence their verdict, and unless it clearly appears that such improper statement did not injuriously affect the defendant’s rights, and that an offer to prove such facts subsequently made during the progress of the trial will not cure such error.
The district attorney then said to the jury: “ Whalen was not put upon the stand in his own behalf and was not sworn. Since the trial of Whalen he has made a complete confession. By Mr. Jewell: I object to the statement. By the District Attorney:. I will withdraw that.”
The district attorney then proceeded : “ Since that trial facts have come to my mind which rendered it my duty to place John Whalen upon the stand as a witness in this case, and I am going to do it. By Mr. Jewell: I object to the statement — to the whole of it, as to what has taken place in the Smith trial, or as to what has taken place in the evidence of this man, and I want an exception.”
In effect the district attorney stated that one of the witnesses
It cannot be possible that a prosecuting officer, whose statements have additional weight- with a jury by reason of his official position, may properly state in his opening, in substance: I propose to call a witness who will give evidence' tending to prove the guilt of the accused. Upon another trial involving the same facts he made a contrary statement, but it was not believed by the jury. He subsequently was indicted for perjury for having made such statement under oath, and a jury found him guilty, and afterwards he himself admitted that the statement so testified to by him was false.
When John Whalen was called as a witness by the district attorney, he could properly only have been interrogated as to facts within his knowledge legitimately bearing upon the question of defendant’s guilt. Except upon the defendant’s cross-examination it could not have been shown that he had been convicted of perjury by a jury, for having given different testimony upon another trial, and that afterwards he admitted that the testimony so given by him was false. Yet - in this case those facts were permitted to come to the knowledge of the jury at the very outset of the trial, and their - verity was vouched for by a person clothed with the- responsibility of official position.
We think the statements to which attention has been called con
The district attorney then said : “ I will withdraw all remarks I made about anything outside of that.”
And he then continued: “ The proof as developed has justified my estimate of his character in criminal eases.”
The defendant’s counsel having again objected, the court said: “ The question of the estimate of the district attorney is not proper.”
There is no proof in the case bearing upon the reputation of defendant’s counsel with regard t'o fixing witnesses or jurors within ' the last two or three years or at any other time. There was no proof as to the estimate of the character of defendant’s counsel by the district attorney and could not have been. The district attorney then proceeded : “ By way of illustration, I want to ask you if on Friday last, when the special panel of jurors was drawn to serve upon this Milks case, and I had got the list at the clerk’s desk and put it in my pocket, and I found that there was a hotelkeeper from the town of Dayton, five miles from my home, drawn on the jury to serve upon this case, and the next morning I had taken my
The defendant’s counsel objected to the statement to the jury “as incompetent and improper to be stated before this jury. There is no evidence in this case that Mr. Jewell did anything of the kind, and I want an exception. By the District Attorney : ’ I want further to state that the district attorney disclaims any intimation or statement that there is any such evidence in the case ; that I have not so intimated; that I expressly used these forms of speech by way of illustration of how a juryman might be approached.”
We think the statement of the district attorney that in what he .said he did not intend to intimate that it applied to the defendant’s attorney or to the case at bar, but was merely an illustration, did not cure the evil, and the jury had the right to infer that it had reference to something that occurred when the jury in this case was called, and subsequently and before the commencement of the trial, and that a charge of improper conduct was being made against defendant’s counsel.
After such statement by the district attorney the court said : “ The remarks are on record, and I suppose whatever error, if any, has been committed will appear on the record. I desire, however, to caution the district attorney that the courts have gone in the direction of limiting the remarks of counsel, prosecuting officers in criminal cases, and that he, being familiar with the rule, will refrain from commenting upon anything except what is before the jury in the way of evidence.”
After the attention of the district attorney was thus called to the
Again the district attorney said: “ They pawned off their bogus alibi; they made their proof before the jury, and the next grand jury indicted Mr. Whalen for perjury,— What do you find? You find M. B. Jewell and Daniel Powell defending him. Who do you find defending Mitchell Smith ? M. B. Jewell and Mr. Powell. They are poor men, both of them, without a dollar on earth. Who pays the expenses of defending these men? Gilbert Milks, of course.”
The statement of the district attorney was objected to by defendant’s counsel, and he then proceeded : “ The counsel who is defending Gilbert Milks also defended Mitchell Smith and John Whalen; there is no evidence of anybody paying them anything, and if it would comfort his poor soul, I am willing to have it go on the record that probably Mr. Jewell is working for his health, and that he doesn’t expect to get any money whatever.”
That statement was also objected to. There was not a. word of evidence tending to show that the defendant Milks paid Mr. Jewell for defending either Smith or Whalen.
The district attorney then comments at length Upon the fact that John Whalen, who was indicted for perjury, did not go upon the stand as a witness, in his own behalf upon the trial of that indictment, and he said : “ The reason why John Whalen did not go upon the stand as a witness when he was being tried was because he knew he was guilty, and he knew if he went onto the stand it would in jure him, and so he kept off. * * * How, after that, and after the efforts which had been more or less well made by the counsel to clear him, it comes down to the question of Gilbert Milks,— what would you expect, that he was guilty ?' He never had told this story to anybody until March ; it was an absolutely made-up story. It had been tried once in the Mitchell-Smith case; it had been tried the second time in his own case, although he didn’t go on and tell
The record contains only á small part of the summing up of the prosecuting attorney, and no part of the summing up of the counsel for the defendant. The portions of the district attorney’s closing address to the jury which do appear are inflammatory in the extreme ; are such as appeal to the passions and prejudices of the jury rather than to their calm and deliberate judgment, and go far beyond the bounds of reasonable moderation.. ' Facts and circumstances not based upon evidence, without any proof of their existence, are dwelt upon. Vituperation is indulged in; unrestrained denunciation of defendant’s counsel for matters in no way connected with the case upon trial is resorted to, and, in effect at least, the attention of the jury is called to the fact that the defendant was not sworn as a witness in his own behalf; all of which we think constituted error which was prejudicial to the defendant, and makes a reversal of the judgment and order appealed from necessary.
It is unnecessary to cite or review the numerous authorities upon the subject. The case of People v. Fielding (158 N. Y. 542), recently decided b.y the Court of Appeals, is decisive of the question, and a long line of cases, decided by the highest courts of this and other. States," is referred to in the opinion of the court, which fully sustains the conclusion reached. It that case the defendant was being tried upon an indictment charging him with the crime of consenting to and conniving at the auditing or allowance of a fraudulent bill or claim against the city of Brooklyn, in violation of section' 165 of the Penal Code, he being at the time a deputy commissioner of the city works of that city. The district attorney, in his summing up in that case, among other things, said: “ Defendant changed his style of living from a frame house on Prospect avenue to a palatial residence on Eighth avenue, which every man knows cannot be maintained in the style of that neighborhood for less than ten thousand dollars a year.”
He further, in glowing and forcible language, assumed to portray the effect of defendant’s crime, by picturing the tax collector’s office
There was no proof-that any of the facts referred to by the district attorney in that case existed or had any basis whatever, certainly none upon the evidence. Each statement was ¡objected to, over and over again, by the defendant’s counsel; all were overruled, and the district attorney was allowed to proceed by the trial court. In that case, when the presiding justice came to charge the jury, he said-: “ Some things have been said about the newspapers, about popular clamor and the burden of the taxpayers. ' Those are considerations which are not to control or influence you in deciding this case.”
He further charged, upon the request of • defendant’s counsel: “ That there is no evidence in the case which would justify the jury, in finding that it was more expensive to live upon Eighth avenue-than in Prospect avenue, and they are not to consider any facts but those which have been proven by the witnesses or the exhibits.”
After a careful review of the authorities the Court of Appeals
Again, the court said: “ Language which might be permitted to-counsel in summing up a civil action'cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing-the People of ..the state, and presumed'to act impartially in-the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all -hazards, he ceases to properly represent the-public interest, Which demands no victim and asks no conviction, through the aid of passion, sympathy or resentment.”
Again, the court said: “ From our observation of jurymen we think the language under consideration would be apt to turn their-minds against the defendant^ divert their attention from the evidence- and prevent the exercise of soiind and dispassionate judgment upon, the merits. It brought before them vivid pictures of suffering and. want, of wrongs done to the widow and orphan by the defendant, and of a multitude of people waiting outside the court house for his-conviction. ■ The hardships of small taxpayers, the privations of the-poor and the overwhelming influence of public opinion were urged against him, and he was described as a thief, living in á palace on the proceeds of public plunder. There was even an attempt to intimidate the jury by telling them that they would commit ‘ the unpar
Again (at p. 553), the court said : “ After what took place during the summing up, how can we be sure that the general and placid language of the charge wholly counteracted the pointed and vigorous words of the district attorney, indorsed as they had been by the court itself
. We have quoted thus at length from the opinion of the court because we think the language is especially applicable to the opening and summing up of the district attorney in the case at bar, and that the decision in that case is an authoritative declaration that what appears in this case constituted reversible error.
It follows that the judgment and order appealed from should be reversed and a new trial ordered.
All concurred; Adams, P. J., concurred in result only.
Judgment and conviction reversed and proceedings remitted to County Court of Cattaraugus county, pursuant to section 5é7, Code • of Criminal Procedure.