Burdick v. People , 1870 N.Y. App. Div. LEXIS 90 ( 1870 )

By the Court, Johnson, J.

Two questions' only are raised by the counsel for the plaintiff in error: 1. TJpon the exception to the ruling admitting evidence to impeach the prisoner’s character for truth and veracity, as a witness; and 2d. On the exception to the charge to the jury.

The prisoner, upon the trial, voluntarily offered himself as a witness in his own' behalf, and was examined in regard to all the circumstances attending the killing of the deceased, for which he was then upon trial, on an-indictment charging him with the crime of murder. The people then offered evidence of the general bad character of the prisoner, for the purpose only of impeaching his character and credibility as a witness. To this the prisoner’s counsel objected, on the ground that evidence of the bad character of a prisoner on trial for a felony is incompetent. The evidence was received for the purpose for which it was offered, and the prisoner’s counsel excepted.

This ruling was clearly right. While the common law, in its humanity, and high regard for the rights of life and liberty, gives every person on trial for crime, the benefit of the presumption of previous good character, and does not, in the first instance, allow an inquiry into his previous character; yet, if the prisoner himself brings his character into question on the trial, and undertakes to show, as matter of fact, that his previous character has been good, the people may then attack it, in reply, and show, if they can, that it has been bad. Whenever a prisoner on trial puts his general character in issue by his own act, he takes the risk of its being proved bad, and of every presumption which such proof legitimately raises against him. And so where a prisoner, upon trial on an indictment for a felony, avails himself of the privilege granted by the recent statute, of testifying as a witness in his own favor, he necessarily puts his general character and credibility as a witness, in issue, and makes it the proper subject of evidence on that question. When he makes himself a witness, he becomes subject to all the rules applicable to other witnesses, notwithstanding his other character of a party on trial for felony. The statute which allows a prisoner, upon trial for crime, to become a witness in his own behalf, at his own election, does not protect him from being impeached, the same as any other witness. If it did, it would be most dangerous and pernicious in its tendency, opening a ready and inviting door to the escape of every one charged with the commission of crime. It is not for the courts to question the policy of this statute, but only to see that it is fairly interpreted, and faithfully administered. We cannot fail to see, however, that it must and will inevitably tend to make the previous character of the accused, on trial, the subject of inquiry and evidence, much more than formerly, and more in accordance with the rule and practice of the civil than of the common law. The temptation to the accused to become a witness in his own behalf, in order to ward off inculpating testimony, or to mitigate its force, must almost always be very great, if not absolutely irresistible; and his becoming a witness must necessarily bring his previous character in question, as a witness, if not as a party. If he is so unfortunate as to have a bad character, even as a witness, it will be exceedingly difficult to prevent its telling against him in the scale as a party, in the minds of the jury, notwithstanding the most careful caution by the court, that it is not to be regarded as evidence in chief.

In regard to the charge, we think the exception was well taken. The judge charged, as matter of law, that the homicide was not justifiable, even if the jury believed the facts and circumstances at the time, and before the firing of the pistol which produced it, were as stated by the prisoner in his testimony. This took the question from the jury entirely. It was clearly a question of fact for the jury, and not a question of law for the court, upon the prisoner’s testimony. The question raised by the prisoner’s testimony was, whether, situated as he was, there was reasonable ground for an apprehension on his part, of a design on the part of the deceased to do him, the prisoner, some great personal injury, and to believe there was imminent danger of such design being accomplished. According to this testimony, the deceased had persisted in following the prisoner from street to street, at this time in the night, with threats and"abusive language, and finally had seized him with a firm grasp by the throat, choking him almost to suffocation, and refused to relinquish his grasp after being warned of the consequences of persistence, and even calling for his revolver, after a warning shot had been fired, and before the fatal one was given by the prisoner. Upon this testimony it was most clearly a question for the jury to determine, whether there was reasonable ground to apprehend a design to do a great personal injury, and whether the prisoner really believed he was in imminent danger of its being inflicted upon him. The design, and the injury apprehended, must be something more than a mere assault and battery. The language of the statute is, “ great personal injury,” without further defining its extent; and there is nothing in the case which calls for any particular definition as to the measure of the injury apprehended, in order to make a homicide justifiable. It is said, on behalf of the people, that under all the circumstances the jury could not have believed the prisoner’s version to be the true one, had it been submitted to them. This may be so, and yet it is no answer. We cannot say, as matter of law, that they could not have believed it, or some portion of it. It is ¿enough that they were deprived, by the charge, of the opportunity of passing upon it, and the questions of fact arising thereon.

[Fourth Department, General Term, at Buffalo, June 6, 1870.

The conviction, judgment and sentence must therefore be reversed, and a new trial ordered.

Mullin, P. J., and Johnson and Talcott, Justices,]