59 N.Y.S. 923 | N.Y. App. Div. | 1899
Plaintiff was a witness in Ms own behalf, and gave evidence tending to support the allegations of the complaint. He stated that he was about 50 years old, and that he had been engaged in business with the defendant prior to the assault. Plaintiff called several witnesses, who gave evidence tending to support his view of the transaction which was involved in the issue between the parties. When the plaintiff rested, no motion was made for a nonsmt. The defendant was called as a witness in his own behalf, and he stated that he and the plaintiff had theretofore been engaged in the business of operating a threshing machine, and that while he was so engaged he had trouble with the plaintiff on several occasions. The court ruled that the defendant might give evidence that there was bad feeling between the parties, and that it “had continued from time to time, as bearing upon the right that this defendant had to think he was assaulted, or likely to be assaulted, at the time of the altercation, but is incompetent for any other purpose.” After that ruling was made, the defendant was permitted to state, viz-.: “He [plaintiff] stated that if anything had happened to me that night he would have owned the whole thing damn quick.” The defendant was then permitted to state that the parties had had trouble in Johnn’s shop-in the fall preceding the transaction complained of, and to some extent he described the altercation then had. On the defendant’s redirect examination he was asked as follows: “Q. When you struck him that first blow, you acted, did you not, under an honest belief that you were doing what you had a right to do, and were justified in doing it?” The witness answered: “Yes, sir; I struck him because I thought my life was in danger.” The defendant thereupon called as a witness one Quereau, who narrated Ms observations of the encounter which is the subject of this action, and then gave evidence that the reputation of the plaintiff was bad from the speech of people, and he was then asked, viz.: “Q. What is his reputation iri regard
“An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be plainly seen that it did no harm." Foote v. Beecher, 78 N. Y. 155.
In the course of the opinion delivered in People v. Corey, 148 N. Y. 489, 42 N. E. 1071, Judge Martin said:
“It is a well-established principle that illegal evidence which has a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of jurors in any degree cannot be considered as harmless.”
We think the evidence that the plaintiff in 1862 admitted to the witness Cooper that he had stolen a harness, and that he brought it
“The rule that an error committed upon a trial may be overlooked when the party complaining was not prejudiced thereby is only applicable in cases where the error could by no possibility have produced injury.”
We think a new trial should be ordered.
Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.