People v. Carroll , 3 Park. Cr. 73 ( 1855 )

By the Court, Parker, J.

This case abounds in error. The complaint charged against the defendant no crime or misdemeanor which courts of special sessions are authorized to try. (2 R. S., 711.) It was only, at most, a complaint against him ás a disorderly person, and, if enough was set forth, it was the foundation for a summary proceeding under 1 Revised Statutes, 819. If, on the return of the warrant, it had appeared by the confession of the defendant, or by competent testimony, that the defendant was a disorderly person, as charged, the justice might have required sufficient sureties for his good behavior for one year, in default of which he might have committed him to jail; and this was all he could do. But the justice, mistaking entirely his powers and the character of the offence, organized a Court of Special Sessions, required the defendant to plead to the complaint, and, after the trial, sentenced him to pay a fine of twenty-five dollars, or be imprisoned in the penitentiary of Albany county for ninety days.

It is even doubtful whether there was enough in the complaint, if established, to convict the defendant of being a disorderly person. The charge was that he had abandoned his wife, and neglected and refused to provide for her, and that for two weeks he had refused to pay her board and support her, and that he had refused for several months to permit her to reside with him and to associate with her children, and retained her clothing and refused to let her have the same, and that he was a disorderly person. None of these specifications come within those enumerated in the statute. (1 R. S., 638.) The statute declares those to be disorderly persons who threaten to run away and leave their wives or children a burden to the public. No threats are alleged in this case. The complaint was evidently drawn under the seventh section of the act of 1851, amending the charter of the village of Cohoes (Laws of 1851, 577), which declared all persons who should actually abandon their wives and children in said village, or who should refuse or neglect to provide for them, &c., to be disorderly persons. But that act was repealed on the 12th of April, 1855 (Laws of 1855, 663), more than a month before these proceedings were instituted.

Without deciding the question whether the wife of the defendant was a competent witness against him, in a case where no personal violence, was alleged (The People v. Carpenter, 9 Barb., 580), it is quite certain that the justice excluded proper testimony on the cross-examination. The defendant’s counsel had a right, after hearing her statement of the conduct of the defendant, to require her to answer further such questions as tended to show that her own conduct had provoked, or that it justified, the conduct of the defendant. A party cannot object that an answer to the question asked may involve the witness in a criminal prosecution. Such an objection may be made by the witness, but not by the party; nor can even a witness claim such a privilege where such further examination is necessary to understand the facts already voluntarily stated. If a witness has stated a part of a transaction, or of a series of transactions, which implicate the defendant, the latter has a right to show, by a cross-examination of the same witness, that the fault and even the criminality were'on the part of the witness and not of the accused. (1 Cow. & Hill, 734, 5.)

The conviction must be reversed.

Conviction reversed.