People v. Fielding

We think that the record before us is free from reversible error except as to a single question which is raised by the following extract from the appeal book, transcribed liter ■ ally so that it may speak for'itself.

The district attorney, in summing up, said: ‘£ Defendant changed his style of living from a frame house on Prospect avenue to a palatial residence on Eighth avenue, which every man knows cannot be maintained in the style of that neighborhood for less than ten thousand dollars a year.” Objected to. The court: “ There is no evidence of that.” By the district attorney : “ I appeal to the common sense of the jury.” The court: “ There is no other comment required than the

In charging the jury the court said: “ Some things have been said about the newspapers, about popular clamor and about the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case. What the clamor may be, I do not know ; I have never heard of it. What the newspapers may have said, I do not care ; I have never read it. How much the people may or may not be burdened, no matter. If the times were prosperous, a public official has no right to make an assault upon the public treasury or to aid others in doing so, and he must be tried only for the crime he has committed, if he has committed one, and it would be wrong in the extreme to assume anything and allow it to weigh against this defendant because of hard times, or because of difficulties which the people who pay money into the city treasury may or may not have in acquiring the means of making the payment.” Upon the request of the defendant he further charged : “ That there is no evidence in the case which would justify the jury in finding that it was more expensive to live upon Eighth avenue than in Prospect avenue,” and “ they are not to consider any facts but those which have been proven by the witnesses or the exhibits.”

We do not wish to express any views which would restrict counsel in fair argument, comment or appeal. We object, however, to the assertion by the learned district attorney of facts not proved, to his inflammatory appeals to passion and prejudice, and to his threat to the jury of popular denunciation, all under the sanction' of the trial court. If the record in this case is sustained by the deliberate judgment of the court of last resort, it is difficult to see the limit to intemperate language, unproved assertion or pernicious appeals on the part of counsel for the prosecution, except their own sense of propriety. The law, in our judgment, does not thus leave an accused person* presumed to be innocent until' proved to be guilty, bound and helpless in the hands of his accuser.

Language which might be permitted to counsel in summing-up a civil action cannot with propriety be used by a public prosecutor, who is a y-was¿-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment. By such a course, in the long run, he throws away much of his strength, because his violent and reprehensible language betrays his bias and finally weakens his influence with the jury. As was said by Judge Earl in People v. Greenwall ( 115 N. Y. 520 , 526), “ the district attorney, representing the majesty of the People, and having no responsibility, except fairly to discharge his duty, should put himself under proper restraint, and should not in his remarks, in the hearing of the jury, go beyond the evidence or the bounds of a reasonable moderation.” If either in that case nor in People v. Brooks ( 131 N. Y. 321 , 329) was any objection made or exception taken. 'In the former, which was a capital case, the court was not bound to interfere, while in the latter,

Abuse of the defendant by the prosecuting officer in his address to the jury, which was calculated to arouse their passions against him and materially prejudice him in the trial, has been held such error as would, of itself, cause a reversal. (Stone v. State, 22 Tex. Ct. App. 185 .) Where the prosecuting attorney was permitted to comment on the personal appearance of the defendant, not as a witness, nor on account of his manner and bearing as such, but as indicating a probability of guilt, it was deemed sufficient to reverse a judgment of conviction. (Bessette v. State, 101 Ind. 85 .)

In Tucker v. Henniker ( 41 N. H. 317 , 323) the court said: 11 It would seem utterly vain and quite useless to caution jurors, in the progress of a trial, against listening to conversations out of the court room in regard to the merits of a cause, if they are to be permitted to listen in the jury box to statements of' facts calculated to have a bearing upon their judgment, enforced and illustrated by all the eloquence and ability of learned, zealous and interested counsel. * * * Statements of facts not proved and comments thereon are outside of a cause; they stand legally irrelevant to the matter in question, and are, therefore, not pertinent. If not pertinent, they are not within the privilege of counsel.”

In Laubach v. State ( 12 Tex. Ct. App. 583 ) the prosecuting attorney, when commenting upon the evidence in his closing argument, was interrupted by the defendant in person with the statement that if he had certain absent witnesses he could show a different state of facts. Thereupon the attorney, addressing the jury, stated that a brother of the absent witnesses told him that they, if present, would testify against the defendant. Objection was promptly made to this remark and

In Brown v. Swineford ( 44 Wis. 282 , 292) counsel, in summing up, commented upon the appellant’s connection with a railroad company and his ability on that account to pay any judgment, which might be rendered against him. The court reversed the judgment, and after referring to the adjudged cases remarked, “ All of them support the rule now adopted by this court, that it is error sufficient to reverse a judgment for counsel, against objection, to state facts pertinent to the issue and not in evidence or to assume arguend,o such facts to be in the case when they are not.”

In State v. Smith ( 75 N. C. 306 ) the prosecuting attorney, addressing the jury, said: The defendant was such a scoundrel that he was compelled to move his trial from Jones county to a county where he was not known.” The conviction was reversed and the court said that “ the purpose and natural effect of such language was to create a prejudice against the defendant not arising out of any legal evidence before them, for the jury were precluded from inquiry into the causes or motives for moving the trial and even from the knowledge whether the trial was moved by the state or the defendant.”

In Rea v. Harrington ( 58 Vt. 181 , 190) the court said: “ It has been repeatedly held in other jurisdictions, and recently in this, that when counsel persistently travel out of the record, basing argument on facts not appearing and appealing to prejudice, irrelevant to the case and outside of the proof, it not only merits the severe censure of the court, but is valid ground for exception.”

In Newton v. State ( 21 Fla. 53 ) it was held that where counsel for the prosecution upon the trial of a cause before a jury, abusing his privilege to the manifest prejudice of the

In Moore v. State ( 21 Tex. Ct. App. 666 ) the district attorney in his address to the jury said that the defendant had been convicted of the offense for which he was on trial “ upon a former and previous indictment,” and upon appeal it was reversed on a trifling technicality in drawing the indictment, and he urged the jury to give him such a term in the penitentiary as would make up for the great expense he -had caused upon a mere technicality. The court in reversing the judgment said: “ In many decisions this court has urged upon counsel, whose duty it is to prosecute the pleas of the State, to refrain from injecting into trials of eases of this kind any matter calculated to inflame the minds or excite the prejudice of the jury. If we could add anything to what has been said or could use any language calculated to reach the minds and consciences of those to whom such admonitions are addressed, we would avail ourselves of the present occasion to do so. As we cannot, we can only reverse and remand the case, in the hope that the accused may secure a fair and impartial trial, according to law and according to those methods alike ancient and honorable which still obtain in all enlightened courts.”

See also as to the effect of a departure from legitimate course of argument the following cases : Rudolph v. Landwerlen ( 92 Ind. 34 ) ; School Town of Rochester v. Shaw ( 100 Ind. 268 ); Hall v. Wolff ( 61 Iowa, 559 ); Bremmer v. R. R. Co. ( 61 Wis. 114 ).

In a case that is free from doubt upon the merits, the appellate courts disregard errors of the trial court, even in a criminal case, when it is reasonably certain that they could not have affected the result. A proposition is reasonably certain when it is supported by the strong probabilities, but here the strong probabilities are that the errors did affect the result. The

From our observation of jurymen we think the language under consideration would be apt to turn their minds against the defendant, divert their attention from the evidence and prevent the exercise of sound and dispassionate judgment upon the merits. It brought before them vivid pictures of suffering and want, of wrongs done to the widow and orphan by the defendant, and of a multitude of people waiting outside the court house for his conviction. The hardships of small taxpayers, the privations of the poor and the overwhelming influence of public opinion were urged against him, and he was described as a thief, living in a palace on the proceeds of public plunder. There was even an attempt to intimidate the jury by telling them that they would commit “ the unpardonable sin ” unless they convicted him. The cause of complaint by the appellant is not a single, inadvertent remark, which might well be overlooked, but after repeated objections improper statements were persisted in under the claim, sustained by the court, that it was right to make them.

The harsh and unjust statements of the district attorney were not founded upon evidence, but rested wholly on his unsupported declarations. The most of them would have been ruled out as immaterial or incompetent if evidence had

After what took place during the summing up, how can we be sure that the general and placid language of the charge wholly counteracted the pointed and vigorous words of the district attorney, indorsed as they had been by the court itself ? When improper evidence has been received or improper statements made in the presence of the jury, if the court seeks to correct them, the correction should be as broad as the error, and cover substantially the same ground, as was the case in Cole v. Fall Brook Coal Co. ( 159 N. Y. 59 ), decided at the present term. The court in its charge said nothing about the improper appeals to sympathy, prejudice or passion, the starvation of children by their widowed mothers, the knotted fingers and bent forms of old men, the denunciation of the defendant as a thief, or the bugbear of the unpardonable sin held up before the jury so forcibly. The correction did not cure the errors, because it did not go far enough and was not sufficiently clear and specific. It did not repel the presumption of injury. (Coleman v. People, 58 N. Y. 555 , 561; People v. Gonzalez, 35 N. Y. 49 , 59.)

Whether the defendant be innocent or guilty, in our opinion he has not been adjudged guilty in accordance with law, because he has not had the fair and impartial trial which the law prescribes for a person charged with crime. If we disregard a sound and well-established rule in his case because we think he is guilty, we tear down one of the safeguards provided by society for the protection of its citizens, and the

The judgment should be reversed and a new trial ordered.

(dissenting). The indictment, under which the defendant was convicted, was founded upon section 165 of the Penal Code. The affirmance by the Appellate Division was unanimous, thus disposing of -the questions of fact. We have carefully examined the exceptions taken with reference to the admission and rejection of evidence, and are of the opinion that they were properly disposed of by the court below.

There is only one question which we think it our duty to discuss upon this appeal, and that pertains to the remarks of the district attorney who tried the case, which have been quoted in the prevailing opinion.

The privilege of counsel in addressing a jury has often given rise to controversies which have been the subject of consideration in our courts, as well as in the courts of our sister states. In 56 American Reports, 814, and 58 American Reports, 648, will be found notes, in which many of the cases are collected and digested. There is one case to which we will specifically refer, for it expresses our views upon the subject, and that is the case of Williams v. Brooklyn Elevated Railroad Co. ( 126 N. Y. 96 , 102). In that case, Andeews, J., in delivering the opinion of the court, says: “ It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense. The right of counsel to address the j ury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective aids in the ascertainment of truth by juries in courts of justice, and this concerns the very highest interest of the state. The jury system would fail much more frequently than it now does if freedom of

The district attorney is a high public officer, representing the state, which seeks equal and impartial justice, and it is as much his duty to see that no innocent man suffers as it is to see that no guilty man escapes. In the discharge of these most important duties he commands the respect of the people of the county and usually exercises a great influence upon jurors. In discussing the evidence he is, as we have seen in the ease alluded to, given the widest latitude within the four corners of the evidence by way of comment, denunciation or appeal, but he has no right to call to the attention of the jury

Upon referring to the comments of the district attorney, it appeai-s that he proceeded to draw pictures based upon matters outside of the evidence, of a widow with her starved brood of little children with faces pinched and haggard, and an old man clutching in his knotted fingers rolls of dirty one-dollar bills, standing in line of taxpayers all day in order to save the little rebate which early payment of their taxes secures. He then says: “ These are the people whose cause I plead,” and then states that “ these are the people, who now, by tens of thousands, are waiting outside for your verdict. Will you do them justice, or will you not? If you shall let this man, loaded with his guilty plunder, escape, then I say you have committed the unpardonable sin.” As we understand this language, the district attorney demands of the jury a verdict of guilty based upon the clamor of tens of thousands who are waiting outside, and insists that if the jurors do not comply wfith his demand they will commit the unpardonable sin. This, we think, was going too far, and cannot be approved. He departed from his line of duty, which was a discussion of the evidence and a demand of a conviction based thereon, and appealed to the jury for a conviction upon considerations which had no legitimate bearing upon the case, and which the jury had no right to consider.

We, however, are inclined to the view that a new trial is not required. Under the Constitution we are limited in our review to questions of law. The defendant’s counsel took a number of exceptions to the statements made by the district attorney, but when he came to his last and final statement, in which the real vice occurred, the defendant’s counsel neglected to take an exception. That which preceded the final remarks of the district attorney may not have been in good taste, but we do not regard it, standing" alone, to be such a departure from the line of discussion permissible within the privilege of

Tinder section 542 of the Code of Criminal Procedure we are required to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Under the circumstances, therefore, we think the judgment and conviction should be affirmed.

Pabker, Ch. J., Bartlett and Martin, JJ., concur with Yann, J., for reversal of judgment of conviction, etc.; Gray and .O’Brien, JJ., concur with Haight, J., for affirmance.

Judgment of conviction reversed and new trial ordered.