114 N.Y.S. 236 | N.Y. App. Div. | 1908
On Sunday, May 19, 1907, the complainant, Ruse, went to Coney Island and fell in with a stranger by the name of Colby, who invited Ruse into a billiard room kept by the defendant on Oceanic Walk to play pool. There the two met a third stranger by the name of Madden, and the three engaged in playing pool, as the result of which Ruse was persuaded that he had won $1,000 although he had refused to bet. Madden handed a roll of bills, purporting to be $1,000, to one Flynn, who pretended to be the manager of the place, and it was arranged that all three should meet at the same place the next morning when Ruse was to get the money deposited with Flynn, provided he could satisfy the latter that he could have paid
Flynn, who admitted his guilt, was called as a witness by the People. He testified that it was agreed between himself, the defendant, Colby and Madden that after they had obtained Euse’s money the defendant was to hold it and, if no complaint was made to the police, he was to keep thirty-five per cent of it and divide the balance equally among the three others. Flynn also testified that during the dispute with Euse on Monday, he, Flynn, passed the $1,000 bill to the defendant.
The judgment is challenged on the ground (1) that there was not sufficient corroboration of the testimony of Flynn; (2) for alleged errors in rulings on evidence; (3) as being against the weight of evidence, and (4) for an error in the judge’s charge.
1. Section 399 of the Code of Criminal Procedure provides : “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” The rule is that “ there should be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it.” (Roscoe’s Crim. Ev. [11th ed.] 124, cited in People v. O'Farrell, 175 N. Y. 325.) The corroborative evidence relied on in that case only showed opportunity. It must be admitted that such evidence in this case does not go much beyond
2. Ruse was permitted to testify that on the xvay to the station house Flynn said to him that if he would not make a complaint he, Flynn, would send to his friends and get the money, that he passed the money to the manager of the place. The police officer was permitted to testify that Flynn said to Ruse at the station house that he, Flynn, would give Ruse a note to the manager of the billiard room to get the money. It was doubtless error'to admit that evidence, if the conspiracy terminated on Flynn’s arrest. (People v. Quinn, 123 App. Div. 682.) It is true that xxdien the testimony of Ruse xvas admitted the details of the conspiracy had not been sworn to by
One other ruling on evidence needs to be noticed. The witness Flynn, after denying on cross-examination that he had ever been convicted of a felony, was ashed: “Were yon ever confined in Joliet States Prison ? ” The objection to that question was sustained. That ruling was doubtless wrong. (Real v. People, 42 N. Y. 270.) But the defendant could not have been harmed by not being permitted further-to discredit a self-confessed thief.- Independently of the statute the jury would not have convicted on the testimony of Flynn unless they deemed it corroborated.
3. The defendant took the stand and denied the story of Flynn in tolo, and that he had any complicity at all in the crime or any acquaintance with the perpetrators, except as he had seen Flynn hanging around his place. He testified that, when informed by Ruse that the latter had lost $1,000, he went out on the sidewalk looking for a police officer, and that when one came along he informed him that there was a maninside who claimed to have lost $1,000, and advised him to go in and see about it. He was corroborated by the officer who made the arrest. Of course the defendant might have said that for the purpose of disarming suspicion, expecting that when the officer got in the place Flynn would have disappeared as Madden and Colby succeeded in doing. But if the officer’s attention ivas called to the matter by the defendant in the expectation that that would result in the arrest of one of the participants - in the crime, that fact would go far to show his innocence. It will thus be seen that the case was peculiarly one for the jury, who were
4. In charging the jury, the judge said: Good character is not a defense to a crime. It is to be taken into consideration with all the other facts that are before, and when a jury get in that condition that they are in doubt, then that question of good character becomes important, that it may sway them to the side of innocence.” Obviously that is not a correct statement of the law. While good character is not a defense to crime, it may be a defense to a criminal charge; and that is doubtless what the jury understood the court to refer to. But apart from that, the judge in effect told the jury that they could only consider the proof of good character in case they were in doubt; whereas proof of good character alone, in the face of what would otherwise be conclusive proof of guilt, may create that reasonable doubt which entitles the defendant to an acquittal. A judgment of conviction was reversed for a charge in substance like this in People v. Friedland (2 App. Div. 332). Before making the erroneous statement above quoted, the judge had read to the jury an extract from the opinion of Judge Allen in Remsen v. People (43 N. Y. 6) containing this sentence: “ There is no case in which the jury may not, in the exercise of a sound judgment, give a prisoner the benefit of a previous good character. Ho matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would he guilty of the offense charged, that the other evidence in the case is false, or the witnesses mistaken.” Doubtless the jury would have understood that quotation if it had not been limited or explained, but we must assume that the jury heeded the statement of the trial judge limiting and explaining its meaning. That statement was directly contrary to the quotation, and explicitly instructed the jury that the evidence of good character was limited in its effect to doubtful cases. Practically the jury were instructed that they could only consider such evidence in case it would be their duty to acquit without it. The evidence against .the defendant consisted of the
The judgment of conviction is reversed.
Woodward, Jenks, Hooker and G-aynor, JJ., concurred.
Judgment of the County Court of Kings county reversed and new trial ordered.