Kober v. Miller

Hardin, P. J.:

When the County Court allowed the question to be put to the defendant as to whether he had been indicted, an error was committed, such evidence was not competent, which the defendant was compelled by the ruling to give. The answer may have impaired the witness before the jury to such an extent, that the jury wb oily disbelieved the witness. The ruling is condemned by the decision of the Court of Appeals in Ryan v. People (79 N. Y., 593; People v. Irving, 95 id., 544; People v. Noelke, 94 id., 143). There was a dissenting opinion in that case and a reference in it to Southworth v. Bennett (58 N. Y., 659). But the majority decision made by the court condemns the ruling. We must follow the majority decision as well other cases in point. (People v. Crapo, 76 N. Y., 288; S. C., 15 Hun, 269; Wright v. People, 16 Weekly Dig., 269.) The respondent suggests that the case in 58 New York (supra) was a civil one, and that Ryan v. People was a criminal one, and that both cases may stand, one giving a rule in a civil case and the other giving a different rule in a criminal case. That distinction was not pressed in the dissents in Ryan v. People. We do not think it sound.

In civil and in criminal cases the rules of evidence so far as they bear upon the proper mode of impeaching or discrediting a witness are alike. No sound reason can be given for a distinction. [Regarding Ryan v. People as precisely in point, it is our duty to apply it to the ruling now before us and to declare that the County Court fell into an error. We cannot say that the error worked no harm.

Judgment of the County Court of Chemung county reversed and a new trial ordered in that court, with costs of this appeal to abide the event.

Boardhan and Follett, JJ., concurred.

Judgment of the County Court of Chemung county reversed and a new trial ordered in that court, with costs to abide the event.