4 Denio 153 | N.Y. Sup. Ct. | 1847
It was improper to give in evidence the representations made by Hadden, without first showing that he acted by the procurement of the defendant; and the exception to the evidence would have been fatal, had it not been for the instruction subsequently given to the jury, that the declarations of Hadden must be laid out of the case. I think that cured the error. It is undoubtedly true, as a general rule, that when improper evidence has been admitted, the objection will be fatal on a bill of exceptions, although we cannot see that it probably affected the verdict. (Myers v. Malcolm, 6 Hill, 292.) But that is where the evidence has not only been received, but has been left to exert its influence upon the jury. It is not unusual for a judge to correct an error into which he may have fallen in the admission of evidence, by striking the testimony out of his minutes, and telling the jury to disregard it. When that is done, the exception which was taken when the evidence was received should fall to the ground. We ought not to presume that the jurors disregarded the instructions of the court, and allowed the evidence to influence their verdict. But the defendant’s counsel thinks it settled, that the error was not cured by telling the jury to lay the declarations of Hadden out of the case. (Haswell v. Bussing, 10 John. 128; Penfield v. Carpender, 13 id. 350; Irvine v. Cook, 15 id. 239; Tuttle v. Hunt, 2 Cowen, 436.) But these are all cases from justices’ courts, where it is not to be supposed that the opinions of the presiding officer will have the same controlling influence upon the jury, as will the instructions of the judge who presides on trials in courts of record. The counsel was unable to produce any case where the same doctrine had been held in relation to trials in a superior court: and. it would be a most inconvenient rule, and one which would rarely tend to the advancement of justice, to hold that a mistake in the admission of evidence can only be corrected by discharging the jury, and commencing the trial de novo.
Another ground has been suggested for getting rid of the exception; to wit, that it only presents a question upon the order of evidence, which, as a general rule, rests in the discretion of
The question put to Trail was a leading one: it plainly suggested to the witness the answer which the district attorney wished to get from him. But the question worked no mischief; for the witness did not give the desired response. If he had echoed back the words put into bis mouth by the form of the question, the exception could not have been got over. But as it is, I think the exception ought not to prevail.
The inquiry was not irrelevant. It was much to the purpose to show, as was done on the trial, that Miner had absconded, and the defendant knew it before he put off the bonds and mortgages under the pretence, among others, that Miner was responsible, and would meet the payments promptly.
Nor do I see any good objection to the proof which was given, that there were judgments and executions against Miner about the time he left the county in the summer of 1842. This was connected with evidence that he had absconded; and that the defendant knew it. The fact that the defendant knew it was proved by his own declaration. He excepted to the admission of that evidence; but there is no color for saying it was improper.
It was not, perhaps, important to show what Barbour paid for the land which he mortgaged. But the answer of the witness was altogether favorable to the defendant. It tended to prove that the land was worth more than the amount which remained due on the mortgage at the time it was transferred to Rice and Ladue.
It was clearly within the discretion of the court to allow the district attorney to re-examine a witness, or to call a new witness, after the defendant had given his evidence; especially as
What the defendant had said to Furman, or any one else, about the bonds and mortgages, before the transfer to Rice and Ladue, was clearly good evidence against himself. And it was also proper to show what Furman had said on the same subject in the defendant’s presence. The object of the district attorney probably was, to show that the defendant had learned from Furman, if he did not know it before, that the securities were not good ones. Such evidence would have been quite pertinent. But the district attorney failed of his object; for the answer of Furman was favorable to the defendant. And this furnishes a further reason why the exception should not prevail.
The indictment does not state all that the defendant obtained by his false pretences. It states truly, that he got the deeds for the Potter farm and the Michigan lands: but it does not add, that he also got the note of Rice and Ladue for one hundred dollars; besides reserving five hundred dollars out of the payments which might be received on the mortgages. I do not see that this can properly be called a variance. It is enough that the defendant obtained some valuable thing by the fraud, which thing is properly described in the indictment. Proof that he obtained something more, does not make a variance.
The charge was substantially correct: and we see no sufficient ground for granting a new trial.
New trial denied.