Majority
p. 243SUPREME COURT. John A. Cantor agt. The People. New York General Term, May, 1862. Ingraham, Leonard and Rosekrans, Justices.
Headnote
A defendant cannot be convicted of a crime upon hearsay evidence.And where such evidence is admitted without objection by the defendant, at the time, he will not be prejudiced, if his subsequent objections to testimony cover the same facts included in the admitted evidence.
The prisoner was convicted in November, 1861, in the court of sessions of this city, of passing counterfeit money. He was indicted for a second offence.
At the time the money was passed by the prisoner he had with him a man named Burns. Soon after the money was passed both were arrested. After the arrival of the prisoners at the station-house, a boy came in with a roll of bills, which he said prisoner had thrown away. Cantor was convicted and sentenced to ten years and five months in the state prison.
The case came up on a writ of error, several exceptions upon matters of law having been taken on the trial by prisoner’s counsel.
Henry L. Clinton, for prisoner.
S. B. Garvin, for people.
By the court,
The declaration of the person who brought to the officer who arrested and searched the defendant the sixteen bills which were offered in evidence by the public prosecutor, that the prisoner had thrown away the bills, and that the person who made the declaration picked them up, was merely hearsay evidence, and did not establish the fact which he alleged. Although such declarations were admitted without objection on the part of the prisoner, his subsequent objection to the intro
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duction of the bills in evidence, and to proof that they were the bills said to have been picked up by the person who made the declaration, was proper and timely, and should have been sustained. These bills, in connection with proof that they were counterfeit, furnished the principal evidence of knowledge by the prisoner that the bill passed by him was counterfeit, and thus effected his conviction.
For these reasons the conviction should be reversed and the case remanded to the court of general sessions for a new trial.