109 N.Y.S. 190 | N.Y. App. Div. | 1908
The defendant appeals from a judgment of conviction for larceny. We must give judgment without regard. to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. (Code Grim. Proc. § 542.)
The error first assigned is that of the court in denying defendant’s motion at the close of the case to withdraw a juror upon the ground that the district attorney, “ certainly not intentionally, has spread before them in his opening an elaborate, extended, condemning, destructive story of the defendant and his associates as to their conduct, their history, their practices, their system, their enterprises, and the manner and methods in which they carried them out, in such a manner and with such detail and to such an elaborate extent as to make it impossible for-the minds of the jury not to be affected by the story told to them by the District Attorney in his opening, and that no possible fair result can be reached after all that had gone before them, and none of them being capable of again recalling objections to the admissions of proof.”
Vann, J., for the court in People v. Wolf (183 N. Y. 464), states that the general rule in opening a case is, “ no fact should be stated unless it is material and competent, and, hence, proper to be proved,
The first objection was to the statement in substance that these men (referring to certain individuals) are bunco men ; that they are known to the criminal fraternity as bunco men, confidence men, and that this was an old form of crime. If the evidence to be offered by the People showed that two or more confederates, by gaining the confidence of a stranger on the ground of alleged professed acquaintance with him or his friends, lured him to a place where he was afterwards fleeced at some game, or robbed of his money, or otherwise victimized, then the district attorney was entirely right in describing the participants in that scheme as bunco men and confidence men. (See Century Dictionary, “Bunco,” “ Bunco men,” “ Confidence game,” “ Confidence man.”) And this is what was done substantially in this case. Myers accosted Arnold, the prosecuting witness, who was a stranger in Hew York city, wormed his way into his confidence by saying that he had come from the city in which Arnold lived, fastened himself upon Arnold, induced him to visit Coney Island and there persuaded him to go into an inn. There the defendant joined Myers and the prosecuting witness. They, with a man named Stone, who pretended to be manager of the inn, but was not connected with it, induced Arnold to match coins with them for drinks, and then told him that he had
The second objection was that this general statement of the “ character ” of the defendant was an attack upon his character, which could not be made until the defendant had put his character in evidence. I think that to describe the defendant as a “ bunco man ” or a “ confidence man,” in view of the fact that evidence was to be offered showing that he was engaged in such a trick, is not an attack upon his “ character ” (i. e., his reputation) within the meaning of the rule invoked. If a defendant is pnt on trial for a burglary is it an attack on his “ character ” for the prosecuting officer to call him a “ burglar ” in his opening to the jury ? It is nothing more than a description of the actor as shown by the evidence to be adduced. The third objection was that the district attorney described the system of the bunco' men’s plant, saying that there were usually three or four men engaged in the scheme, and describing the perfect or well-established game which they play. The evidence showed that the money of Arnold was stolen through the criminal conduct of Myers, the defendant and Stone, acting in confederation by fraud, trick and device, aptly described in slang parlance as the bunco game or the confidence game (authority supra). The fourth objection was to the statement of the district attorney in describing the system of such people — that “ a steerer ’ is sent out to get a victim — in their parlance “ a sucker ” — in that it is a description of the general system which the district attorney charges up by that statement to the defendant. A “ steerer ” in slang vocabulary is a person of plausible manners and address, who gains the confidence of the person intended to be fleeced. (Century Dictionary, “ Steerer.”) This was, it seems to me, a fair description of what the evidence shows the man Myers was in his relations with Arnold. A “sucker” is a person readily deceived. (Ibid.) Surely such was the proper description of Arnold as revealed by his own testimony. The fifth objection was to the statement that
The sixth objection was that the district attorney remarked that such men usually make a big display of money, “ flashing it on their victim,” and that they usually have in their pockets decoy letters which show enterprises of a criminal nature for inducing other peoptle to engage in such things as wire-tapping. The evidence in this case showed that the defendant stated to Arnold that he had lately sold horses for $10,000, and that he exhibited a large amount of money to him at various times; indeed he proceeded to count out from one amount as much as $200. So far as the decoy letters are concerned, the district .attorney stated that such letters were found in the possession of the defendant and that they showed an enterprise of a criminal character. Those letters were subsequently marked for identification but were not read in evidence. It appears that one of them was written upon the heading of the Western Union Telegraph Company. I think within the rule laid down by Judge Vann (ut supra), the district attorney did not commit an error because he was bound to know that such letters might
I think that all of the statements objected to were fairly within the evidence afterwards adduced, except as to the torn paper and the contents of the letters which were found in the possession of
I think that it was not reversible error for the court to admit the alleged conversation between Myers and Arnold when the former accosted him, a stranger in Hew York, and induced him to visit Coney Island in his company. Of course, if the evidence in the case failed to show sufficient proof of confederation or conspiracy for the common purpose of fleecing the witness, the proof of such conversation between the two was not competent as against this defendant. But it was not error to admit these conversations prior to any proof tending to establish the confederation, for the order of proof was within the sound discretion of the court. (8 Cyc. 682, and authorities cited; Whart. Crim. Law [10th ed.], § 1401 and notes; Abb. Tr. Br. Crim. Cas. 318; Spies v. People, 122 Ill. 1; People v. Miles, 123 App. Div. 862.) In the case cited upon this point by the learned counsel for the appellant,
It is contended that it was error to permit the district attorney to offer as evidence certain articles found in the trunk of the defendant upon his arrest and after the crime was committed. First, the district attorney offered in evidence a paper taken from the defendant’s pocket torn up. This was objected to, and then the district attorney offered it for identification. There is no evidence as to the contents of this torn paper. Second, it appeared that a member of the police found an “American Bank Reporter” in the trank of the defendant. The district attorney offered it in evidence. This was objected to on certain specified grounds. It was then marked for identification. Third, the district attorney pursued a like course with reference to a roll of paper about the size of a bill, and a roll of thin leather, also certain letters found in the defendant’s possession, and some cards. He also offered in evidence over objection and exception a visiting card given by Myers to Arnold. It is to be noted that none of these articles was received in evidence save the visiting card last mentioned; they were but marked for identification. There' is a manifest difference between things received in evidence and things offered and when objected to thereafter marked for identification. ' It is quite true that articles even when exhibited and only marked for identification, if they can be thereby seen and comprehended by the jury, may have all" the effect of evidence upon the jury, and that neither a ruling of exclusion nor instruction of the court to disregard them can efface the effect. And it is a manifestly improper thing for counsel, knowing or chargeable with the knowledge that certain testimony is not and cannot be admissible as evidence, to bring that testimony to the attention of the jury in a sinister way by offering it or by marking it for identification, with the intention of affecting the jury. A flagrant act of this kind which m itself indicates such intention might well be held fatal to a conviction. But I am convinced that no such course of persecution or unfairness can be ascribed to the learned district attorney in this case. I see no reason for the conclusion that he, when he knew or should have known that these things wev§ absolutely incompetent and must
I advise affirmance.
Hooker, Gaynor, Rich and Miller, JJ., concurred.
Judgment of the Oounty Court of Kings county affirmed.
See State v. Flanders (118 Mo. 234).— [Rep.