People v. Sullivan , 34 A.D. 544 ( 1898 )

O’Brien, J.:

The principal questions presented on this appeal are, whether the verdict is warranted by the evidence, and whether the court erred in' admitting evidence of the appellant’s record as a police officer.

A review . of the testimony discloses that the questions upon the merits as to the defendant’s guilt were disposed of by the jury upon close and conflicting evidence, and in view of the contradictory versions of the alleged assault, -it is apparent that a slight variance in .favor of the defendant would have turned the judgment the other way. The character and credibility of the witnesses were, therefore, important factors, and the admission of incompetent evidence relating thereto would have an especial bearing upon the conclusions to. be reached! As affecting the defendant’s testimony, his record as a police officer was introduced in evidence, and the'substance of such evidence, and the grounds upon which it was admitted, may be seen from the following questions and answers, with the objections interposed by counsel and the rulings thereon by the the learned judge presiding at the tidal: “Q. You have been disciplined for clubbing have you not, before? [Objection.] By the Court: If he was convicted before of clubbing anybody or assaulting anybody, you may show it. [Exception.] Q. Haven’t you been convicted of clubbing before ? A. I was fined ten days’ pay; yes. Q. When was that? A. 1892; I ain’t sure. Q. See if this is right. On November 27th, 1891, you assaulted a citizen with a club and called him vile names, and were convicted of it and fined ten days? [Objection. Exception.] A. That is right; I was convicted of it. Q: Weren’t you, on April 27th, 1894, convicted as follows: You assaulted and arrested and failed to convey a prisoner to the station house; fined five days ? [Objection.] By the Court: That is a conviction. * * * A. The assault part was dismissed. Q. Weren’t you convicted of that, no matter what you did ? A. I was fined five days for allowing a prisoner to escape. By the Court: Q. What were you fined five days for? A. For allowing a prisoner to escape. Q. Then you were convicted for allowing a prisoner to escape and you were fined five days’ pay; isn’t that right? [Objection.] A. Tes, sir. " By Mr. Carpenter: Q. Isn’t this the charge that -was made against you: ‘Assaulted and arrested and failed to convey a prisoner to station house?’ A. Yes, sir. Q. And on that you were convicted? [Objection. Exception.] A. Yes, sir. * * * Q. On June 25th were you convicted and fined three days on this charge : Absent from post and in liquor store ? [Objection. Exception.] A. Yes, sir. Q. And on March 3rd, 1892, convicted and ' fined one day on this charge: ‘Did.not properly patrol?’ [Objection. Exception.] A. Yes, sir. Q. And on March 26th, 1895,. convicted and fined one day for being absent from post? A. What is that? Q. March 26th, 1895, absent from post one day ? A. Yes, sir; one day. Q. November 2Gth, 1895, loitering, fined one day? A. Yes, sir. * * * Q. Failed to return memoranda book at desk at expiration of duty, and fined one-half day for that? [Objection. Exception.] A. Yes, sir.” After the judge had charged the jury, the request was made that, in considering Sullivan’s evidence, the jury was entitled to take into consideration his record. To which request the 'court replied : “ That, gentlemen, you are entitled to take into account on the question of his credibility— Sullivan’s record which was read to you yesterday, or proved.”

It will be noticed that the ground upon which the rulings were based was that the proceedings before the police commissioners, which resulted in fines or other punishment for dereliction of duty or infractions of police rules, were convictions, and, therefore, proof thereof on the defendant’s cross-examination was proper, as affecting his credibility, under section 832 of the Code of Civil Procedure and section '714 of the Penal Code. The Codes provide in these sections that a person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness, but that the conviction may be proved for the -purpose of 'affecting the weight of his testimony by his cross-examination, upon which he must answer any. question relevant to that inquiry. It appears, to us that the learned judge quite misapprehended the purpose arid meaning of these provisions* and applied them to determinations which in no legal sense could be regarded as convictions. The reason for the enactment of the sections referred to is that,, prior to the adoption of the Codes, a person convicted of a crime was entirely disqualified from testifying * and it was with the view to-remove such disqualification and to make the person convicted of a.. ■ crime competent to testify that they were passed,, with, the limitation, however, that “ the conviction may be proved for the purpose of affecting the weight of his testimony.”

The conviction mentioned in the Code provisions is the same as-would formerly have disqualified a person from testifying. But, as. held in many cases,, it is only such conviction as is reached after an ■ orderly trial in a court of law, before a judge or petit jury. The. cases have further held that an actual judgment of. the court is-necessary, to constitute a conviction. Thus, in Blaufus v. People (69 N. Y. 107), tried before the Code was enacted, in commenting-upon the use of the word “ conviction ” in a statute against the subornation of perjury, it was said : “ In ordinary phrase, the meaning-'of the word conviction is, the finding by the jury of a verdict that, the accused is guilty. But in legal parlance it often denotes the the final judgment of the court; * * * to shut a person from the witness box * * * guilt must be shown by a judgment ;. * * * until a person found guilty of perjury by the verdict of a. jury.has received.judgment and sentence from the- court, he is not incompetent to speak as a witness.” As stated, also in Schiffer v. Pruden (64 N. Y. 52), “ doubtless the word conviction ordinarily signifies the finding of the jury by a verdict that the accused is-guilty, yet the word sometimes d.enotes the final judgment-of the-court. * * ' * Thus the case of a witness rendered incompetent to testify by conviction for an infamous crime, has an analogy. The-language of the law is that he is rendered incompetent, by his conviction of treason, felony or crimen falsi, but to shut him from the witness box-his conviction must be shown by a judgment.” ■

Since the provisions of the Codes came into effect, making persons competent witnesses, notwithstanding their conviction for crimes or misdemeanors, a similar construction has been given the word conviction, and, as defined in the case of Sacia v. Decker (1 Civ. Proc. Rep. 56), “ In legal parlance conviction denotes the final judgment of the court in passing sentence.”

That the proceedings before the police commissioners are not of that nature, and that their conclusions can in no sense be properly regarded as legal convictions is evident, and thus the foundation upon which the rulings admitting such evidence were "based was wanting.

Notwithstanding the fact, that a wrong ground was assigned for admitting such evidence, we should not reverse the rulings made if, for any other good reason, the testimony was competent or it was made clearly to appear that the defendant was not prejudiced thereby. Bearing in mind, however, as we must, the great liberality, within the discretion of the trial judge, allowed upon cross-examination, we think the ruling cannot be sustained. It cannot be doubted that the evidence admitted was harmful to the defendant, and, therefore, the present case is distinguished from that of Nolan, v. Brooklyn City & Newtown Railroad, Company (87 N. Y. 68) where an exception was taken to the ruling of the court permitting a witness to be asked on his cross-examination if he had been expelled from the fife department, and it was held that the question was improper because the fact sought .to be proved was neither pertinent to the issue nor did it relate to any specific fact which tended to discredit the witness or to impeach his moral character; but the ruling was allowed to stand as the error was not harmful, for the reason that the reply of the witness was so worded that no unfavorable inference could be drawn.

It is uunecessary to extend the argument to show the error, for the matter has been .pointed out and fully discussed in the recent case of People v. Dorthy (20 App. Div. 308; affd., 156 N. Y. 237). This was a case where the defendant, who was an attorney and counselor at law, was indicted for grand larceny, and at the trial, on his cross-examination, it was attempted by the prosecution to discredit his testimony by proving by him that he had been expelled from the Baptist church, and that in proceedings- to disbar him from practicing as an attorney and counselor at law á referee and an Appellate Division of the Supreme Court had found him guilty of several specific acts of larceny not connected with the one on trial,, and also of suppressing evidence which should have been presented to a grand jury. In the opinion by the learned judge of the Appellate Division it was said: “ It has never been the law that a, witness may be compelled to testify, to the conclusions of others to prove such moral degradation or to impeach him as a witness, except it be the conviction for a crime or such confinement in prisons or jails as. would indicate a conviction. * * * The reason of this distinc- ' tion is plain * "" * he may be ignorant of the facts upon which the acts or conclusions of others are based *' * * and the witness, may thus be injured and disgraced by results for which he is not responsible. ■* * * A person under our system of jurisprudence can only be convicted of a crime after a fair trial, in the appointed way, where he can be fully heard in his defense,, and where he can be protected by all the presumptions with which the law surrounds, a defendant upon his trial for crime. A conviction upon such a trial may be properly shown to impair the credit of a witness ; though it is the act of others, it is the deliberate act. of the law upon a trial duly had before the court and a jury.” In affirming the judgment, the Court of Appeals held that, assuming that the prosecution has the right for the purpose of attacking the credibility of the witness in his. own behalf to ask him whether or not he has been disbarred as an attorney of the court, it is not entitled, on his admitting the fact, to-go further and require him to answer or explain all. charges that had been made against him in the proceedings for his removal, and the fact that the witness has been expelled' from a. church does not impeach his credibility; and when testimony to that fact has no bearing on the main issue in the case, it is error to permit the prosecution to elicit it even indirectly from the defendant, in a criminal trial,, upon his cross-examination.

The'admission, upon Sullivan’s cross-examination, of the decisions, of the police commissioners as convictions being, therefore, érroneous and undoubtedly prejudicial, it follows that the judgment must be reversed and a new trial ordered.

\ Barrett, Bumsey and Patterson, JJ., concurred.

Judgment reversed and new trial ordered..