People v. Loris — 131 A.D. 127

Majority

p. 127

The People of the State of New York, Respondent, v. Joseph Loris, Appellant.

Second Department,

March 5, Í909.

Headnote

Trial — impeaching witness — “neighborhood” defined—evidence — sale of liquors without license — weight of testimony of detective — motive of witness.

It is error to exclude the answer of an impeaching witness to á question asking whether he knows the general reputation of another witness in the community in which he lives.

It is not necessary that the impeaching witness reside in the same town as the witness whose reputation is to be impeached. Although he must, be of the same ‘ ‘ neighborhood,” that term comprises the natural radius of repute, and is not confined to the same hamlet, village, town or city, but means the territory within which the witnesses reside, do business and have intercourse with their fellows.

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The court can take judicial notice of the fact that two towns are less than fourteen miles apart and in the same county.

While the court will not permit a stranger sent out by the adverse party to testify as to the result of his inquiry as to the reputation of a witness, it will not determine by preliminary inquiry whether the impeaching witness has sufficient knowledge of the facts to enable him to testify but will leave the value of the testimony to the j ury.

The testimony of a detective employed to obtain evidence whereon to base a prosecution for selling liquor without a license is to be received with the greatest caution and distrust, although he is not to be considered as an accomplice or an odious witness whose testimony must be discredited.

Although"such witness has testified that he has been fully paid for his services, and is not to receive any further compensation contingent upon a conviction, the defendant is entitled to show the amount of compensation received and the time of payment.

Appeal by the defendant,- Joseph Loris, from a judgment of conviction rendered against him in the County Court of Suffolk county on the 19th day of December, 1907.

Martin T. Manton [Frank A. Crow with him on the brief], for the appellant.

George H. Furman, for the respondent.

The defendant appeals from a judgment of the County Court that convicts him of the crime of selling intoxicating liquor without a license. Mr. Sawyer, the private detective and decoy i.n the case, called by the People, was the sole witness to the act of sale.' The defendant’s witness, Mr. Swezey, who testified that he resided in Biverhead and that from his boyhood up he had known Mr. Sawyer, was asked whether he knew Mr. Sawyer’s general reputation for truth and veracity in the community in which he lived, but an objection to the question was sustained, under exception, on the ground that it appeared from the evidence of Mr. Sawyer that he had not resided in Biverhead for 16 years and that he did not show acquaintance with the speech of people in- Southampton (Mr. Sawyer’s place of residence) or that he had been a resident thereof. This witness then testified that he was a merchant, that he did business in Southampton, where he went once or twice a month. Thereupon he was asked, “ Do you know the general repu

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tation of William Sawyer in the community in which he lives % ” but an objection thereto on the grounds of irrelevancy, incompetency and immateriality was sustained under exception. I think that this ruling was error. The question was entirely proper in itself. (Carlson v. Winterson, 147 N. Y. 656 .) And the circumstance that the witness did not reside in Southampton did not make him incompetent. It is declared by an eminent writer upon evidence that ordinarily the witness who speaks to reputation should be of the same “ neighborhood.” (1 Greenl. Ev. [15th ed.] § 461, and cases cited.) But the term thus used comprises the natural radius of repute. It is not confined necessarily to the same hamlet, village, town or city. Blackstona says that jurors must be “of the visne or neighborhood, which is interpreted to be of the county where the fact is committed.” (4 Com. 350, quoted in People v. Powell, 11 L. R. A. 75 , cited in 5 Words & Phrases Judicially Defined, 4774.) And other cases are likewise cited which show the elasticity of the term as comprising the territory wherein the person in question resides, moves, circulates, does business and has intercourse with his fellows. (State v. Henderson, 29 W. Va. 147 ; Peters v. Bourneau, 22 Ill. App. 177 .) In Chess v. Chess ( 21 Am. Dec. 350 ) a county was thus included. In Hadjo v. Gooden ( 13 Ala. 718 ) the witness lived 12 miles distant; in Dupree v. State ( 33 Ala. 380 ) the distance was 20 miles; in State v. McLaughlin ( 149 Mo. 19 ) 5 miles. In Wallis v. White ( 58 Wis. 26 ) the respective residences ■ were different wards of the same city. Some of these cases are cited by another eminent writer on evidence (Burr-Jones [2d ed.], 1097.) The court could take judicial notice that Biverhead and Southampton are adjoining towns of the same county, less than 14 miles apart. (Chambel. Best Ev. [Int. ed.^[1] ] 255, and cases there cited.) And moreover there was evidence that the witness did business in the town of residence.

The rule is that the court will not permit a stranger sent out by the adverse party to testify as to the result of his inquiry, “ but otherwise the court will not undertake to determine by a preliminary inquiry whether the impeaching witness has sufficient knowledge of the fact to enable him to testify, but will leave the value of his tes

* Sometimes known as 2(1 Am. ed.— [Ref.

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timony to be determined by the jury.” (Greenl. supra, p. 610, citing Bates v. Barber, 4 Cush. 107 .) Of course, if it did not appear that the witness knew or could testify to the matter under inquiry, no exception to his rejection would lie. (Bates v. Barber, supra ; Greenl. supra.) Burr Jones on Evidence (supra) says: “ It is not a condition to the competency of the impeaching witness that he should reside in the same neighborhood.” The evidence sought was not cumulative; indeed, the learned court charged.the jury that there was no testimony that tended to impeach Hr. Sawyer. As the fact of the sale virtually rested upon the testimony of Hr. Sawyer, the importance of his impeachment to the defendant is manifest. And although Hr. Sawyer was neither an accomplice nor an odious witness whose testimony was to be discredited (Rapalje Wit. § 189, and authorities cited), yet, in view of his. employment as a detective, his testimony was to be received “ with the greatest caution and distrust,” as was said of a witness in a like case. (Commonwealth v. Downing, 4 Gray, 29 .)

I think that the defendant should have been permitted to show the amount of the compensation paid to Hr. Sawyer for his service. Hr. Sawyer testified on cross-examination that he was paid and fully paid, and that he was not to receive any further compensation contingent upon a conviction, but the defendant was not permitted to ask the amount thereof or the time of its payment. The inquiry into the matter of compensation was material (State v. Tosney, 26 Minn. 262 ), and I think that these further questions were proper. . The amount of the compensation for such work might indicate eagerness to show that it was successfully done so as to secure a conviction, or a natural desire for a retention in work.highly paid, and the time of the payment might indicate that despite the witness the compensation was contingent upon some successful step in the prosecution of the crime.

I think that the judgment should be reversed, and a new trial should be ordered.

Hirschberg, P. J., Woodward, Gayxor and Hiller, JJ., concurred.

Judgment of the County Court of Suffolk county reversed and new trial ordered.