186 A.D. 278 | N.Y. App. Div. | 1919
The defendant, appellant, was convicted in the County Court upon an indictment for maiming and for assault in the second degree as a fourth offense. I think that we should order a new trial, pursuant to the part of section 527 of the Code of Criminal Procedure that provides: “And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence.” The verdict
The crime was committed in a city street by a blow that cut McMahon’s face and eye so that the eye was extracted in a hospital. McMahon, with other men and women inmates of a dram-shop, had been put out into the street at the closing hour of one a. m. McMahon testifies that he received the blow as soon as he came out and after he had walked three or four paces. If McMahon is correct there is no proof that makes against the defendant. McMahon and the defendant were strangers. The defendant had been in the dram-shop and was in the crowd that congregated in the street after the shop was closed. But the two men were of different groups in the dram-shop, and although we may infer that all was not harmonious, for McMahon testifies that he had struck Kelly in the dram-shop, McMahon says (and none other testifies to the contrary) that he had neither words nor quarrel with the defendant and does not even remember that the defendant was present when Kelly received this blow. The defendant says he separated McMahon and Kelly, but it does not appear that the defendant was a friend or an adherent of Kelly. McMahon could not, either in the hospital when defendant was brought before him, or on the witness stand, identify the defendant as his assailant, for he describes the blow as dealt from behind by some one unknown to him. There is not a particle of testimony, direct or circumstantial, that indicates that the defendant struck McMahon at the time or under the conditions testified to by McMahon. The theory of the prosecution is that the blow was struck with a glass bottle. There is medical evidence that the injury could have been caused by such a thing. There is no proof that any such thing was found on the scene.
The evidence adduced against the defendant is in the testimony of Berryman and Patten. Berryman testifies that he was present near the scene; Patten is the police detective who undertook to investigate the crime. His connection with
Upon his direct examination he did not testify that he saw the defendant strike McMahon. He did not testify that he saw the defendant even deal a blow. He testifies that this occurrence did not take place until after the fights of Walsh and the defendant, and Walsh and Kennedy, and that McMahon was then present, apparently unharmed.
If Berryman is correct, then McMahon is incorrect when he says that he was struck as soon as he came out of the dram-shop and had walked 3 or 4 paces. Indeed, Berryman says about 6 minutes had elapsed after McMahon had come out before McMahon was struck.
So to speak, he disqualified himself as an eye-witness of the act that constituted the crime by his testimony that he turned his head and began to walk away. He but testifies to a conclusion from his inference, and his mental process may be thus described: I saw a crowd of a number of
I am not speaking of the strength or weakness of the conclusion. I am but pointing out that Berryman did not testify as an eye-witness to any act that accomplished the crime, even to the extent of testifying that the raised arm was continued in the action of even attempting a blow. Berryman himself characterizes his testimony when on cross-examination he is asked: “ Q. You say the raising of the arm by Mr. Moyer [the defendant] gave you the impression that he attempted to strike Mr. McMahon? A. Yes, sir.” Upon cross-examination he had testified that he saw Moyer raise his hand and punch McMahon. “ Q. He punched McMahon? A. He raised his arm * * * Q. * * * he struck McMahon? A. Yes.” Moyer “ walked to the left side of McMahon.” When the men approached Moyer (the defendant), he punched McMahon and walked away. The defendant had been in the crowd for “ two minutes.” “ After he struck — raised his arm [note the correction] to McMahon, he walked away. * * * Q. Did you see where the blow struck Mr. McMahon? A. As I said before, it raised towards his shoulder. Q. Did you see the blow strike Mr. McMahon? A. Did I say I saw the blow strike Mr. McMahon? I couldn’t see it. Q. Did you see the blow strike Mr. McMahon? A. No, sir; I walked away. Q. So that you don’t know now whether Mr. Moyer struck Mr. McMahon? A. I didn’t say he did strike him. * * *
Twenty-five minutes after the affair, Berryman testified that in company with Larkin he met defendant, and when defendant spoke of the affray and the witness said it was a shame, defendant said “ they deserved all they got.”
Berryman appears as a young man of the same walk of life as the defendant, who had drifted from one calling to another with intervals of idleness. His testimony is not clear or cohesive. And he has the significant habit of repeating the question before delivery of his answer. He was a bystander at night, 40 or 45 feet away, who viewed a series of quarrels by a crowd of men under an arc-light. He does not testify to a duel between McMahon and defendant. Could he be relied upon to articulate correctly the various actions incident to these night brawls among these various men? He told of a preliminary fight between Walsh, who attacked Moyer, that shifted to Kennedy when Kennedy attempted to separate them. At that time he said he saw Moyer “ put his hands up ” to ward off Walsh’s blow. Is it not possible that after Berryman had learned of the injury to McMahon, Berryman attributed this putting up of defendant’s hands as the “ raised ' arm ” that could account for the blow subsequently dealt by some one to McMahon? Berryman says at the time Moyer raised his arm, “ Walsh [was] out on the sidewalk then.” The author of “On the Witness Stand ” concludes his chapter “ The Memory of the Witness ” with these words: “ And yet we have not even touched one factor which, more than anything else, devastates memory and plays havoc with our best intended recollections; that is, the power of suggestion.” (Münsterburg, p. 69.) But even the purpose of the “ raised arm ” at any time is but an inference. It was entirely possible that the defendant raised his arm to defend himself, not to strike. Berryman’s testimony at no time reveals the defendant as an aggressor, but the contrary.
Police detective Patten’s testimony is to admissions in the nature of a confession by Moyer that he struck McMahon a blow. I shall not consider the oft-cited and somewhat
In fine, the jury were asked to believe that at the same interview, after defendant had faced Kennedy as an accusing eye-witness with a denial, he confessed, and then, after he had found that the injured man himself could not identify
Of course, the detective’s testimony that Kennedy had said at the interview described that he saw defendant strike McMahon was not evidence; it was admissible only to show the conduct of the prisoner in response to that statement. (People v. Conrow, 200 N. Y. 356.) A John J. Kennedy, although a witness before the grand jury, was not a witness at the trial.
When the jury came to weigh the evidence, there was in the scale of the defendant the presumption of his innocence and the doctrine of reasonable doubt. The defendant had testified that he did not strike McMahon, and that he did not tell the detective Patten that McMahon struck him and he struck back. He had testified that McMahon had danced with Kelly in the dram-shop and had struck Kelly, and that the defendant tried to pacify them and to separate them. McMahon had testified that he . did strike Kelly in the dram-shop, that he did not know whether the defendant was then present. The defendant had testified that when he came out at the closing hour he stood by himself on the corner; Walsh wanted to “ lick ” him, raised his hand against him, but accidentally struck Kennedy, who returned the blow; that he did not see McMahon, but after the blow by Kennedy he (the .defendant) walked away, when the officer stopped him. The defendant had been corroborated by Berryman as to the attack by Walsh, and as to the subsequent fight between Walsh and Kennedy. The defendant had testified that he saw a general scuffle after Walsh was struck, and he saw McMahon there; that he did not strike McMahon at any time. The defendant had testified that the officer asked
Against the defendant there were proved four previous convictions, as stated in the indictment, but none of them essentially involved physical force; one was for the possession of narcotics, two for receiving stolen goods, and the fourth for an attempted burglary. The sentence was fife imprisonment; the court had no alternative. The court tried the case carefully and well, but I think that the jury erred in its verdict.
. A new trial should be ordered.
Rich, Putnam, Kelly and Jaycox, JJ., concurred.
Judgment of conviction of the County Court of Kings county reversed, and new trial ordered.