Marx v. People , 63 Barb. 618 ( 1872 )

By the Court, Gilbert, J.

Upon the-trial, the prisoner became a witness on his own behalf. On his cross-examination by the district attorney, he testified that he had not been convicted of burglary, before the alleged offence was committed. At a later stage of his cross-examination, this question was put to him : “I ask you again, specifically, were you not, on April 25, 1856, arraigned at the bar of this court, charged with the crime of burglary ? Did you not confess your guilt, and were you not sentenced to three years in the State prison, for that offence?” The prisoner answered: “ I was not. Ho, sir.” The case shows that afterwards the district attorney renewed his motion to prove by the records of the court that a person by the name of the defendant was convicted of felony; upon which the prisoner’s counsel objected to the evidence. Thereupon the court decided: “This is immaterial proof, unless it is connected, in some way, with the prisoner. It is a preliminary offer upon an immaterial matter, and it will be time for you (the prisoner’s counsel) to object when he (the district attorney) offers a witness to prove a substantive matter.” To this decision the prisoner’s counsel excepted. The district attorney then stated the contents of a record which showed a conviction of William Marx, April 25, 1856, of burglary in the third degree, a copy of which appears in the bill of exceptions. Subsequently, the. court rejected evidence offered to show that the prisoner was the person named in the record of conviction.

It is now conceded that the record of conviction was inadmissible, even in connection with the testimony aliunde, that the prisoner was the person named in it. This is no doubt correct. The same rules of evidence must govern the examination of a prisoner, when he avails himself of his privilege to become a witness, as apply to any other witness. One of these is, that a party cannot, upon cross-examination of a witness for the adverse party, draw out collateral statements, not material to the issue on trial, and then contradict such statements. He is concluded by the answer of the witness.

[First Department, General Term, at New York, November, 4, 1872.

We think this rule.was violated, in this case. Although the decision of the court was, that the evidence objected to was immaterial without further evidence connecting it with the prisoner, yet the evidence was admitted. It should have been rejected altogether. It is impossible to say that the prisoner was not prejudiced by itor that the rejection of the evidence offered, to show the identity of the prisoner as the person named in the record, cured the error. The record was in, and in the absence of testimony on that subject the^ury had the right to draw the inference of identity of person, from the identity of name.

The remarks of the judge, on this subject, in his charge to the jury, were too restricted to obviate the effect which must have been produced by the record. He should have withdrawn it from the consideration of the jury, and have told them, distinctly, to disregard it. Hot having done so, the error remains.

We think, also, that the court erred in rejecting evidence of the nature of the disease which the prisoner had. Taken in connection with the prisoner’s testimony, it was certainly competent. It may have been inconclusive, or of little weight, but competent evidence cannot be rejected on that ground. ■ '

For these reasons, the judgment below must be reversed, and a new trial must be granted to the prisoner.

Ingraham, Leonard and Gilbert, Justices.]