People v. Allen — 282 N.Y. 511

Majority

p. 511

The People of the State of New York, Respondent, v. Paul E. Allen, Appellant.

Argued March 5, 1940;

decided April 16, 1940.

p. 512

Thurlow W. Southwick for appellant.

Defendant was deprived of a fair trial by the admission of evidence of other crimes unconnected with that charged in the indictment. (People v. Molineux, 168 N. Y. 264 ; People v. Sharp, 107 N. Y. 427 ; Coleman v. People, 55 N. Y. 81 ; People v. Shea, 147 N. Y. 78 .)

Donald M. Mawhinney, District Attorney (Arthur W. Wilson of counsel), for respondent.

A defendant in a criminal action who offers himself as a witness may be interrogated as to any vicious or criminal acts of his life. (People v. Casey, 72 N. Y. 393 ; People v. Hinksman, 192 N. Y. 421 ; People v. Webster, 139 N. Y. 73 ; Brandon v. People, 42 N. Y. 265 ; People v. Giblin, 115 N. Y. 196 ; People v. McCormick, 135 N. Y. 663 .) Evidence of other crimes is properly admissible when it tends to prove the identity of the person charged with the commission of the crime on trial. (People v. Grutz, 212 N. Y. 72 ; People v. Harvey, 235 N. Y. 282 ; People v. Marrin, 205 N. Y. 275 ; People v. Morse, 196 N. Y. 306 ; People v. Molineux, 168 N. Y. 264 ; People v. Governale, 193 N. Y. 581 ; People v. Rogers, 192 N. Y. 331 ; People v. Van Tassel, 156 N. Y. 565 ; People v. Peckens, 153 N. Y. 576 ; People v. Murphy, 135 N. Y. 450 ; People v. Rogers, 71 Cal. 565 .)

We agree with the Appellate Division that the attempted proof of other crimes was erroneously admitted. The only question that remains is whether the error may be overlooked as immaterial. Its nature was such that it seems impossible to say that it was not prejudicial to the defendant.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Finch, Rippey and Conway, JJ., concur; Sears and Lewis, JJ., taking no part.

Judgments reversed, etc.

Cases cited

People v. Molineux 168 N. Y. 264 N.Y. 1901-10-15 p. 512
People v. Sharp 107 N. Y. 427 N.Y. 1887-11-29 p. 512
Coleman v. People 55 N. Y. 81 N.Y. 1873-11-18 p. 512
People v. Casey 72 N. Y. 393 N.Y. 1878-02-05 p. 512
People v. Hinksman 192 N. Y. 421 N.Y. 1908-09-29 p. 512
Brandon v. People 42 N. Y. 265 N.Y. 1870-06-21 p. 512
People v. Giblin 115 N. Y. 196 N.Y. 1889-06-28 p. 512
People v. McCormick 135 N. Y. 663 N.Y. 1892-10-28 p. 512
People v. Peckens 153 N. Y. 576 N.Y. 1897-10-05 p. 512
People v. Rogers 71 Cal. 565 Cal. 1887-01-18 p. 512