Real v. . the People , 1870 N.Y. LEXIS 50 ( 1870 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Although the case was heard in the General Term of the Supreme Court, before the election in 1869, at which the judiciary article submitted to the electors was adopted, yet the case was not decided until after the canvass of the votes by the State canvassers and the result showing the adoption of the article was announced by that board. The record shows that one of the three justices by whom the General Term was held presided at the Oyer and Terminer at which the plaintiff was tried and convicted, and that he was one of the two justices who concurred in affirming the judgment. The counsel for the plaintiff insists that section eight of the judiciary article took effect immediately, upon the result of the canvass being announced by the board. If he is right in this, the judgment of affirmance must be reversed, and the cause directed to be reheard in the Supreme Court, for the reason that one of the two justices who concurred in affirming the judgment was, at the time of the affirmance, incompetent to take any part in reviewing the judgment rendered by the Court of Oyer and Terminer, of which he was a member, as a member of the General Term, by section eight of such article. That section provides that no judge or justice shall sit at a General Term of any court, or in the Court of Appeals, in review of a decision made by him or by any court of which he was, at the time, a sitting member. The rule of the common law is, that every law takes effect immediately upon its passage, unless some other time is therein prescribed for that purpose. (1 Kent's Com., 458, Sedgwick's Stat. Const. Law, 82.) The result of the election showing the adoption of this article by a majority of the votes cast, must, within the meaning of the rule, be deemed its passage. The canvass of the votes cast by the various boards of canvassers as required by law, and announcing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. The election is not deemed complete until the result is declared by the canvassers as required by law. When the result was declared by the State board of canvassers, the article was adopted, and under the rule, became operative at once, unless from the nature of the provisions themselves, or those of some other law, it appears that it was to take effect at some future period, or unless it clearly appears that the intention of the framers of the article, and of those by whom it was adopted, was, that it should not take effect until some definite future time. The article in question was framed by the convention convened in 1867, pursuant to a vote of the people, as required by the present constitution and the act of the legislature, (Laws of 1867, chap. 194,) for the purpose of proposing amendments to the constitution, or framing a new one, as by the convention should be deemed expedient. It was provided by section 5 of the act, that when it should be ascertained by the board of State canvassers that any proposition submitted to the people had received a majority of votes in its favor, then that proposition should be declared to be adopted, either as the constitution, a part of the constitution, or an amendment to the present constitution, as the case may be, and that the same should take effect from and after the 31st day of December, 1867, unless the convention should prescribe some other time on which the same should take effect by resolution. This act contemplated that the convention would complete its work and submit the same for the action of the people at the election in 1867. It failed to do this and continued its session for some time subsequent to that election. In 1868 (Laws of that year, chapter 538), the legislature passed an act authorizing the convention to continue its session. In 1868, the convention completed its labors, but the legislature did not, during that year, pass any act providing for the submission of its work, or any part thereof to the people. That body did, however, in 1869, pass such an act, providing for the submission of the entire work of the convention to the people; and by section 5 of the act (chapter 318, Laws of that year), provided that, in case of the adoption of the article in question by a majority of the votes, it should become the sixth article of the constitution of the State. This act is silent as to the time when it should take effect. The article in question was incorporated with other articles designed by the convention to supersede the existing constitution, and to become the future constitution of the State. By the act of 1869, it was all submitted at the election to be held that year, provision being made for a separate vote upon the judiciary, and other articles. By the 5th section of the 14th article it was provided, that this constitution shall be in force, from and including the 1st day of January next, after its adoption by the people. This section related to the entire proposed constitution, the judiciary article included; and had the proposed constitution been adopted, would, of course, have determined the time when all its provisions would have taken effect. But that portion containing this provision was rejected, and it is, therefore, insisted by the counsel for the plaintiff, that it never had any operation. But its insertion shows clearly that the convention intended that no part of the proposed constitution should take effect until that time. The fact that the legislature submitted the judiciary article to a separate vote, could not affect this intention. Those voting for the proposed constitution, or any part of it, saw the time therein limited for its taking effect, and must have voted for it, or any part of it, in reference to such time. To suppose that those voting for the judiciary article, and against the residue of the instrument, intended that the former should take effect, if adopted upon the announcement of the result, would be absurd. All must have understood that such parts, if any, as were adopted should take effect at the time prescribed, irrespective of what might be rejected. This manifest intention of the framers of the article, and of those adopting it, controls the time of its taking effect. That time was January 1, 1870, as to the provision in question. Other provisions of the article, from their very nature, did not take effect until after that time. As to the latter, it is not necessary now to determine when they became operative. It follows that the justice who presided at the Oyer and Terminer was not incompetent to act as a member of the General Term, when the judgment appealed from was rendered.

The counsel for the plaintiff insists that the Court of Oyer and Terminer before which the plaintiff was tried had no jurisdiction of the case. This position is based upon the ground, that the term at which the trial took place was not the term of the court held next after the making of the order by the Court of Sessions, at which the indictment was found, sending it to the next Court of Oyer and Terminer for trial. The statute (§ 7, 2 R.S., 382), authorizes this order. The making of it vests entire jurisdiction of the case in the Court of Oyer and Terminer, and such jurisdiction continues until by some subsequent action it is transferred to some other court or the cause is tried. The indictment may be tried at any term of the court subsequent to the making of the order, while the indictment is pending therein.

The counsel further insists that the court erred in refusing to charge the jury, that the proof failed to show which wound it was that actually caused the death, the case was not made out according to the indictment. The indictment contained but one count charging that the killing was effected by shooting the deceased with a pistol in the head. The proof tended to show that the plaintiff in error fired the pistol two or three times at the deceased, inflicting thereby two wounds upon the deceased, one upon the head and one upon the trunk, either of which would have been necessarily mortal, but failed to show which was first inflicted or which actually caused the death. It is true that the evidence must show that the killing was effected by the accused in the manner charged in the indictment, otherwise the accused would be unable to prepare for his defence, and unable to meet the case shown against him upon trial; but where, as in the present case, there is no possibility of his having been misled or in any way embarrassed in his defence by the variance, it will be disregarded. In the present case, the shots were fired almost at the same instant, under precisely the same circumstances, and whether death ensued from the one wound or the other was wholly immaterial. There was, therefore, no error in the refusal to charge as requested.

There was no error in rejecting the testimony offered by the counsel showing the reason assigned by him for shooting the deceased. No rule is better settled than that a party either in civil or criminal proceedings cannot prove his own declarations in his own favor. But when his declarations are given in evidence against him, all that he said in the same conversation explanatory thereof, or tending to discharge himself from the effect thereof becomes competent in his own favor. But the statements offered in evidence by the accused were not made in any conversation into which the prosecution had inquired, or any part of which had been given in evidence.

There was no error in excluding proof that the accused was in the habit at times of drinking to excess, and of the effect upon his mind at times produced by this habit. The evidence, in this respect, was properly confined within a period of a few days of the transaction. Within this period, the accused was permitted to give evidence, tending to show that his mind was temporarily unsound, or that he was delirious from this cause.

A witness introduced by the accused, and who gave material testimony in his favor, was asked by the district attorney upon cross-examination, whether he had not been in the penitentiary, and how long he had been there. These questions were objected to by the counsel for the accused, without a specific statement, calling attention to the fact of there being record evidence. The objection was overruled, and the counsel excepted. The witness answered that he had, and stated the time, adding, that he was innocent of the crime. Waiving the question whether the ground was sufficiently stated, there can be no doubt that this testimony was material, and tended to prejudice the accused by impairing the credit of the witness, and if incompetent, the judgment should be reversed. The counsel now insists, that this point was decided in favor of the accused in Newcomb v.Griswold (24 N.Y., 298) by this court. It was held in that case, that it was error to overrule the objection of the opposite party to a question proposed upon the cross-examination of a witness, with a view to impair his credit, whether he had not been convicted of petit larceny, and the judgment was reversed upon this ground, the court holding, that if the fact was at all admissible, it could only be proved by the record. The same rule is laid down in Greenleaf's Evidence (vol. 1, § 457), where it is further added, that if the inquiry is confined in terms to the fact of his having been subjected to an ignominious punishment, or to imprisonment alone, it is made not for the purpose of showing that he was an innocent sufferer, but that he was guilty, and the only competent proof of his guilt is the rocord of his conviction. If the rule thus laid down by this author is correct, it is manifest that the exception in the present case was well taken. But I think that such is not the rule. It is well settled, that for the purpose of impairing the credit of a witness, by evidence introduced by the opposite party, such evidence must go to his general character. That proof of specific acts of immorality is not competent, see authorities cited in Griswold v. Newcomb (1 Greenleaf, § 461). Yet it is held, that for the purpose of discrediting his testimony, the witness may be asked upon cross-examination, as to specific acts. (Id., § 456.) This shows that upon a cross-examination of a witness, with a view of testing his credibility, inquiries are proper as to facts not competent to be proved in any other way. Such inquiries do not relate to the issue directly upon trial, but relate only to the credibility of the witness. They are entirely collateral to the principal issue. As to the former, the same strictness is not required when the evidence is confined to the cross-examination of the witness introduced by the opposite party. In such examination the presumption is strong, that the witness will protect his credibility as far, at least, as truth will warrant. All experience shows this to be so. It would be productive of great injustice often, if where a witness is produced, of whom the opposite party has before never heard, and who gives material testimony, and from some source, or from the manner and appearance of the witness, such party should learn that most of the life of the witness had been spent in jails, and other prisons for crimes, if this fact could not be proved by the witness himself, but could only be shown by records existing in distant counties, and perhaps States, which for the purposes of the trial, are wholly inaccessible. No danger to the party introducing the witness can result from this class of inquiries, while their exclusion might, in some cases, wholly defeat the ends of justice. My conclusion is, that a witness upon cross-examination may be asked whether he has been in jail, the penitentiary, or State prison or any other place that would tend to impair his credibility, and how much of his life he has passed in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This involves questions as to the jurisdiction and proceedings of a court of which the witness may not be competent to speak. This was the point involved in Griswold v. Newcomb, and the only point in that case. Here the inquiry was simply whether and how long the witness had been in the penitentiary. This the witness knew and could not be mistaken about. His answers in the present case undoubtedly impaired his credit with the jury, as the verdict under the charge given, shows that no credit whatever was given to the testimony. The extent of the cross-examination of this character is somewhat in the discretion of the court, and must necessarily be so to prevent abuse. (La Beau v. The People,34 N.Y., 223.) This discretion should be liberally exercised with a view to arrive at truth.

There was no error in excluding the questions put to nonprofessional witnesses, who had testified to facts tending to show the mental unsoundness of the accused, as to what they thought of his state of mind, or their impression as to his state of mind. These witnesses were not competent to give an opinion upon this subject. They were not competent to give an opinion as to whether the facts testified to by them indicated mental unsoundness. (Clapp v. Fullerton, 34 N.Y., 170; The People v. O'Brien, 36 N.Y., 276.) My conclusion is, that there was no substantial error to the prejudice of the prisoner committed upon the trial. The judgment appealed from must be affirmed.

All concur for affirmance, except SUTHERLAND, who does not sit.

Judgment affirmed.