People v. Smith , 34 N.Y. Crim. 474 ( 1916 )

Lambert, J. (dissenting):

The defendant appeals from a conviction of grand larceny in the first degree. It is charged that he converted to his own use five certain bonds, while same were in his possession as agent and bailee of the Fidelity Trust Company of Rochester, ¡N". Y.

One Harriet F. ¡Newcomb died in September, 1913, leaving a last will and testament, of which she named the Fidelity Trust Company of Rochester as executor.

In her lifetime she had reposed in the defendant great confidence and had intrusted to him many, if not all, of her business matters. So far as is disclosed by the record, he respected that confidence so long as she lived. He did her banking, attended to her investments and generally looked after her business matters.

Such course of conduct brought into his possession many securities belonging to deceased, and upon her death many of such remained in his possession. Of these, a number were transferable by delivery only.

Following her death, the trust company made demand upon defendant for such securities as remained in his possession, together with all books of account, memoranda, etc., involved in her estate. Later, discovery proceedings were instituted and the defendant was therein examined as a witness with reference to his entire connection with the estate of deceased.

Eventually the trust company brought action against defendant, seeking to recover the value of some $85,000 worth of these securities. In that action defendant filed an answer, but when the same came on for trial he did not contest it. Judgment was recovered against him.

Following his examination in the discovery proceedings and the filing of his answer in the civil action, defendant left Rochester, went to Canada and later to London, England. From this latter place he was extradited and brought back to answer this indictment.

Defendant strenuously asserts a claimed variance between the pleading and proof in that he is charged with conversion as bailee of the Fidelity Trust Company, while the proof is that he converted securities formerly belonging to Mrs. New-comb. His contention in this particular is not sound. Upon Mrs. Newcomb’s death, title to the securities she then owned passed under her will to the trust company as her executor, and the defendant, although formerly bailee and agent for Mrs. Newcomb, thereupon and by operation of law held the securities as agent and bailee for the trust company. (Phelps v. People, 72 N. Y. 334, 357; People v. Bennett, 37 id. 117.)

There are, however, serious errors urged. Upon the trial the assistant district attorney offered in evidence and read to the jury excerpts from the testimony of the defendant taken in the discovery proceedings. Objection to this evidence was repeatedly made by the defendant upon the ground that it was incompetent and immaterial. The admission of this evidence over such objection and exception is now urged as error requiring reversal.

The real objection to this proof lies in section 2443 of the Penal Law which provides as follows: “No person shall be excused from testifying, in any civil action or legal proceeding, to any facts showing that a thing in action has been bought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime. But no evidence derived from the examination of such person shall be received against him upon a criminal prosecution.”

It is true that the rule is now well settled that such a statutory provision attempting to take from a witness his constitutional privilege to decline to answer any question, the answer to which might incriminate him, is wholly ineffectual in that particular. (Chappell v. Chappell, 116 App. Div. 576.)

The defendant might have declined to answer in the discovery proceedings in the exercise of his constitutional privilege. But this he did not do, and hence his evidence is probably voluntary.

However, the above-quoted section of the Penal Law goes much further and distinctly provides that the evidence of the witness taken in that manner shall not be used against him in a criminal prosecution. Nor is this latter provision in any wise dependent upon the one preceding. It is not made to depend upon the claim of privilege, either by a logical reading of the entire section or by its grammatical construction. This evidence, then, was incompetent by reason of this express provision of the statute.

In answer to this suggestion the assistant district attorney calls attention to the fact that the objection did not specify the true reason for excluding the evidence, and he argues that the mere general objection does not suffice to present this question.

We are familiar with many instances where appellate courts have declined to recognize the validity of exceptions based upon general and indefinite objection. (Sanford v. Ellithorp, 95 N. Y. 48; Hoar v. Hoar, 23 Hun, 33; Stevens v. Brennan, 79 N. Y. 254.)

The object of thé rule requiring objections to evidence to be made specific and to point out the precise defect urged is to prevent surprise and to enable the court and counsel to obviate the objection by either reframing the question or by making additional proof which will cure it. (People v. Beach, 87 N. Y. 512; Bergmann v. Jones, 94 id. 51.)

In those instances where it is apparent that the objection cannot be obviated by any means within the power of the party offering the evidence it is usually sufficient to make general objection thereto. Such objection then presents the defect urged. (Quinby v. Strauss, 90 N. Y. 664; Tooley v. Bacon, 70 id. 34; People v. Place, 157 id. 584, 601; Asbestos Pulp Co. v. Gardner, 39 App. Div. 654; West v. N. Y. C. & H. R. R. R. Co., 55 id. 464, 467; Wallace v. Vacuum Oil Co., 128 N. Y. 579.)

It seems quite apparent that the objection to this evidence could not be obviated in view of the explicit statutory prohibition against its introduction. We conclude, therefore, that its admission was error.

The prejudicial effect of this evidence cannot be well overestimated. The evidence read to the jury embodied charges of conversion against the defendant of many other securities,

. involving large amounts of money, and the case, as finally submitted, contained these further charges, substantiated to some extent by the evidence of the defendant thus improperly introduced.

From this evidence the jury might well spell out further accusations against the defendant. Such scarcely rise to the dignity of proof of other thefts or conversions, but are accusations of such.

Our courts have repeatedly condemned the injection into criminal cases of mere accusations or suggestions of the commission of other and different crimes by a defendant upon trial in a criminal case.

As was said in People v. Crapo (76 N. Y. 288, 291): “It is not legitimate to bolster up a weak case by probabilities based upon other transactions. An accused person is required to meet the specific charge made against him, and is not called upon to defend himself against every act of his life. ”

Evidence of a similar character was likewise strongly condemned in People v. Cascone (185 N. Y. 317) and People v. Sekeson (111 App. Div. 490, 498).

What is said above, with reference to this class of evidence, applies with even more force to the introduction in evidence of the complaint and answer in the civil action.

These pleadings were admitted in the face of the provisions of section 523 of the Code of Civil Procedure, wherein it is provided: “A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.”

The harmful character of this evidence is even more apparent. The multifarious charges of conversion are here again presented, and presented in the form of accusation only.

In attempted justification of the introduction of these pleadings, the assistant district attorney argues that section 523 of the Code of Civil Procedure prohibits this evidence only as to the facts alleged or admitted in the pleadings; and such seems to be the wording of that section. He ingeniously argues that such evidence was not introduced for that prohibited purpose; that it finds its place in the case as a part of the general history, going to make up proof of the guilty intent of the defendant and that, as such, it was competent and properly admitted.

• Hiving full faith to the contention of the assistant district attorney, that these pleadings have probative force upon the question of intent, we would then have presented evidence competent upon that theory and yet incompetent upon another theory and expressly prohibited by statute.

Once before the jury these pleadings become evidentiary for all purposes. The jury might take them into the jury room, read them and draw from them the natural and logical conclusion that defendant was charged therein with the conversion of many other securities.

Somewhat of a similar situation was presented in the recent case of People v. Buffom (214 N. Y. 53).

In that case the defendant was on trial for murder of her husband. It was charged that the means employed was arsenical poisoning. The effect of small and repeated doses of arsenic upon the human system was being sharply litigated.

The district attorney was there permitted to prove the death of a daughter of defendant, occurring subsequent to the indictment, together with the conditions discovered both prior to her death and as revealed by an autopsy after it. This proof was permitted by the trial court, upon the theory that it had probative force upon the contested issue of the effect of arsenical poisoning and that court attempted to limit the jury in its consideration thereof to that one proposition.

The Court of Appeals, in discussing that line of proof, distinctly held the evidence incompetent, even upon the restricted theory adopted by the trial court, and although there was the merest suggestion that the defendant was guilty of poisoning her daughter as well as her husband, and although that suggestion did not obtain the formality of a charge to that effect, yet the Court of Appeals saw fit to reverse that conviction because of the admission of that evidence.

Whatever impression this court may have as to the guilt of the defendant, we are convinced that the trial he has had was not such as is guaranteed him by the Constitution. (Const, art. 1, § 2.) We cannot say that the above-mentioned errors were not prejudicial to him, or that the same did not in the minds of the j ury prove the controlling factor in overcoming that reasonable doubt which they might have had as to the guilt of the defendant.

For the foregoing reasons, the judgment of conviction should be reversed and a new trial ordered.

Judgment of conviction and order affirmed.