People v. Fay , 270 A.D. 261 ( 1945 )

Per Curiam.

One of the defendants-appellants, Joseph S. Fay, called thirteen character witnesses who testified to his reputation for honesty and fair dealing. It is claimed that the District Attorney improperly cross-examined eight of such witnesses.

A defendant who calls character witnesses makes his own reputation a subject of inquiry at the trial and the People have the right to cross-examine such witnesses upon the subject of inquiry thus presented and may properly ask if the witnesses heard particular reports derogatory to defendant’s character to determine credibility and to show the witnesses’ grounds of knowledge, provided the inquiry is directed to the witnesses’ hearing of the disparaging report as negativing the reputation and provided the inquiry is conducted in good faith. (People v. McKane, 143 N. Y. 455, 473, affg. 80 Hun 322, 347 [Gen. Term, 2d Dept.]; People v. Laudiero, 192 N. Y. 304, 309; People v. Jefferey, 82 Hun 409, 413; People v. Manganaro, 261 App. Div. 891 [1st Dept.]; People v. Watson, 54 Hun 637, opinion in 7 N. Y. S. 532 [Gen. Term, 1st Dept.]; Lawrence v. United States, C. C. A., 56 F. 2d 555, 556; 3 Wigmore on Evidence [3d ed.], § 988, and cases cited in almost all jurisdictions; see, also, State v. Crow, 107 Mo. 341, 346-347.)

Discussing character witnesses, Wigmore says (3d ed., Yol. 3, § 988, p. 618): “ Such a witness virtually asserts either (a) that the testifier has never heard any ill spoken of the other or (b) that the sum of the expressed opinion of him is favorable. Now if it appears that this sustaining witness knows of bad rumors against the other, then, in the first instance, his assertion is entirely discredited; while, in the second instance, his assertion is deficient in good grounds, according to the greater or less prevalence of the rumors. On this , principle, then, it is proper to probe the asserted reputation by learning whether such rumors have come to the witness’ knowledge; for if they have, it is apparent that the alleged reputation is more or,, less a fabrication of his own mind.”

In People v. McKane (supra) the cross-examination of character witnesses included questions about accusations appearing in the public press and the Court of Appeals said (p. 473): “ The defendant having made reputation a subject of inquiry, the People had the right to put before the jury just what that reputation was, though it included the ability to influence and control elections.”

In People, v. Jefferey (supra) the court held: “ Nor do we think that the court erred in allowing the witness Levan to testify that Jefferey had been indicted; that he saw in the papers that he'had. The defendant had made Levan his witness for the purpose of proving good character; on that subject the People could properly cross-examine him, and as he had testified to the good character of the prisoner, the People could properly ask.him'if he had heard reports derogatory to his character. (Carpenter v. Blake, 10 Hun 358-360; Leonard v. Allen, 11 Cush. 241-245.) ”

The matters here inquired into wóre not irrelevant to the subject or scope of the inquiry presented by calling thirteen character witnesses but related to the traits of character defendant Fay had put in issue. Practically all of the character witnesses cross-examined admitted having some knowledge or information of one or more of the reports about which he was questioned.

The court without exception correctly charged the rule relating to character witnesses; told the jury that Fay’s-character had nothing whatever to do with the defense of the, other defendant Bove; no exceptions and no request for any additional charge on the subject was made. Fay’s counsel fully and freely argued the issue in his summation. Elsewhere in the charge the jury had been instructed that no question is evidence; that it is the answer that is evidence. .Under all the circumstances disclosed, the prosecution’s inquiry cannot be held to have been conducted in bad faith and does not present prejudicial reversible error.

On direct examination by the People, the witness Walsh testified only to the effect that he had a conversation with Shea preceding his meeting with the defendants. On cross-examination for defendant Fay, the subject matter of Walsh’s conversation with Shea was inquired into to suggest that Shea had said it was a good thing to “ make an arraugement ” with the labor leaders to protect the job, particularly against the sandhogs’ union. Part of the conversation was elicited affirmatively; the inquiry of defendant’s counsel as to what Shea told the witness regarding protection from the sandhogs was answered in the negative; but the questions on cross-examination related to what Shea had told the witness Walsh before Walsh went to the meeting with defendants.

In that state of facts the People were entitled to bring out the entire conversation, the court properly instructing the jury that the evidence was competent only as to defendant Fay and that they should disregard it so far as defendant Bove was concerned. The re-examination of a witness is largely in the discretion of the court. Defendant having chosen to open the door as to the conversation, it was proper that the jury should be placed in possession of what it actually was. (People v. Buchanan, 145 N. Y. 1, 24.)

The trial court in a comprehensive and eminently fair charge that adequately protected defendants’ rights submitted the issue of fact to the jury and the jury found both defendants guilty on the first and seventh counts of the indictment. No prejudicial reversible error is shown. Both errors especially relied on for reversal relate to defendant Fay and not to defendant Bove.

The judgments of conviction and the orders should be affirmed.