2 N.Y. Crim. 171 | NY | 1884
Upon the trial of an indictment for assault and battery, the defendant testified in his own behalf as a witness. According to the evidence of the complainant, and one witness who corroborated him, the assault was without provocation, and so brutal and causeless as to indicate in the perpetrator either *543 temporary intoxication, or unusual ugliness of temper. But according to the evidence of the accused and of three witnesses whom he called in his behalf, the complainant rushed at him with abusive language and a bottle in his hand, and the defendant merely laughed and walked out. And these witnesses further said that after this occurrence, the complainant and one McDermott had a fight, from which, inferentially, the complainant's injuries might have arisen. A question of fact of a very serious character was thus presented to the jury. There was falsehood upon one side or the other, and to reach the truth much regard was to be had to the respective credibility of the witnesses, and to their moral characters. The cross examination of the complainant recognized the situation, and a series of disparaging questions were put to him and answered; as to whether he had kept a gambling house; had been arrested for beating a woman; had bitten a man's thumb off; had shot a man named Miller; none of which were objected to. If the complainant had done these things; if he was the sort of man such a history described; it was due to the accused, whose liberty was imperiled by the testimony, that the jury should learn something of the character of the witness.
On the cross-examination of the accused, similar disparaging questions were put, but to these, objections were interposed, which were overruled, and the exceptions taken are now before us.
All the inquiries except two were answered in the negative. The prosecution was bound by these replies, and the series of questions thus answered cast no discredit upon the witness and did him no possible harm. The jury were bound by his denials, and the inquiries drew out no facts from which discreditable inferences could be drawn. The answers rendered the questions innoxious. But that cannot so easily be said of the remaining two inquiries. One of them, however, does not raise the question sought to be presented. The accused had just been asked if in 1870 he gouged both of the eyes out of a man named James and answered in the negative. He was then asked, "didn't you do the same thing with a man named Ferguson, in *544 1881?" to which he answered, "I did not gouge his out." That answered the inquiry. Nothing further in respect to that occurrence was asked of the witness, and no added statement was required. What followed was his own voluntary declaration, which he need not have made, and which was not drawn from him by any question of the prosecutor. The witness added, "I struck him," and then went on to explain the circumstances, showing plainly that Ferguson was the aggressor, and the accused acted only on the defensive.
But the inquiry whether the witness did not assault Smith Weed, a member of the legislature, and which was answered in the affirmative, although followed by an explanation, cannot be certainly deemed harmless, and is not, therefore, within the doctrine of Nolan v. Brooklyn City N.R.R. Co. (
That brings us to the inquiry whether the question asked was proper. We think it was so; within the discretion of the trial court; and its permission not an abuse of that discretion. The rule, as it stood before any restriction or limitation was put upon it, was stated in Real v. People (
The General Term seem to have thought that an assault committed upon other persons "would not necessarily or properly tend to impeach the moral character, or impair the credit of the witness." We held the exact contrary in People v. Casey. The questions there sustained were admissible upon that ground alone, and the case is decisive of this. The assault upon Weed, unexplained and unjustified, was a crime punishable by fine or imprisonment. It indicated disregard of the law, contempt for personal rights, and an ungovernable temper prompting to a criminal act. If we are ever to roam through our Penal Code in search of a crime capable of being committed without indicating a defective moral character, we shall not select the one here in question.
Whether the pistol in the hands of the defendant was an instrument or thing likely to produce grievous bodily harm, was a question of fact for the jury. (Nelson v. People,
We discover no error in the record and the judgment should be affirmed.
All concur, except RUGER, Ch. J., and RAPALLO, J., not voting.
Judgment affirmed.