89 N.Y.S. 83 | N.Y. App. Div. | 1904
.The defendant was indicted for the crime of grand larceny and 'brought to trial, at a term of the Saratoga County Court. He was convicted upon the evidence of an accomplice, and we are satisfied that such evidence was sufficiently corroborated under the provisions of section 399 of the Code of Criminal Procedure to warrant a conviction. The serious question presented, however, arises upon an exception taken by the defendant’s attorney to the exclusion of certain evidence offered by him upon the trial, and which arose in the following manner: The accomplice, Panneton, being upon the stand as a witness, was asked the following questions by the defendant’s attorney, to which the following answers and ruling,were had,
The inquiry as to whether the witness was told by his attorney that, if he admitted his guilt and told what he knew about Moore, he would be allowed to plead guilty to a lesser crime was not obnoxious to the objection that it was a confidential communication between attorney and client, nor does the court seem to have excluded it upon that ground. It was evidently excluded upon the theory that, because his attorney had not acquired permission from the district attorney to make such a promise, it was not a statement which should be allowed to affect the witness’ credibility. In this we think the learned court erred.'
Even though the attorney had no instructions from the public authorities to make such a promise, it is clear that, if made, it may have induced the witness to testify against the defendant Moore. It cannot be presumed that he gave no credit to his attorney’s promise ; on the contrary, the presumption is that he would believe what his attorney promised and assumed to know about, and hence that he was testifying under "the expectation , of gain to himself. And such an expectation very clearly would affect his credibility. Evidence tending to show á personal interest in the witness to testify
How far this personal interest in the witness would have affected his credibility with' the jury we cannot say. The evidence was competent and material and affected a substantial right. It was error, therefore, which we cannot disregard (People v. Strait, 154 N. Y. 165, 171.)
The judgment must be reversed and a new trial ordered.
All concurred.
Conviction, order and judgment of the County Court of Saratoga county reversed and a new trial ordered, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to such County Court pursuant to sections 547 and 548 of the Code of Criminal Procedure.