People v. Milks

A careful reading of the evidence bearing upon the question of defendant’s guilt leads us to the conclusion that it was such as to require the submission of that question to the jury. It will, therefore, be unnecessary to review the evidence, except so far- as it may be material to the discussion of the questions raised by the objections and exceptions taken by the defendant during the progress of the trial.

The first objection and exception to which attention is called relates to a statement made by the learned district attorney in opening the case to the jury. The district attorney said: “ We

“ The defendant’s counsel objected to his going further with this statement about former fires that Mijks had had, and to his stating further upon that subject, and to the statement which has already been made upon the subject of former fires and receiving the insurance upon them, upon the ground that it is improper in this case. The defendant objected to his stating anything upon the subject of former fires not connected with this transaction. By the court: You may proceed. The defendant’s counsel duly excepted. By the district attorney: I shall offer to prove here in this case every fact which I have just stated, claiming that that will have a bearing upon this question on trial before you. I shall not offer that proof with a view of trying another fire, but only offer it as bearing upon the intent and- the probability of the defendant’s being connected with this fire. I believe that proof is competent, and when the time comes I shall make my argument as to that legal proposition, but not now. I expect to show the motive in carrying this heavy insurance.”

The statement' standing alone, having been objected to and an exception taken by the defendant, clearly constituted reversible error within the decision in People v. Smith, 162 N. Y. 520 . Upon the trial of that case, which was upon an indictment for arson, in opening the case to the jury the district attorney said: “ We shall show you, if permitted, that before this fire, which occurred at the Boulevard, in which some seven buildings owned.by the mother and family of this defendant were burned, many other buildings which this defendant had assisted in erecting, or in which he was interested, were destroyed in a similar manner. Within less than a year before the fire on the Boulevard—”

At this point and before the statement was completed, the defendant’s counsel objected that it was improper. The ob

The court of appeals held that the statement was improper; that it might have been prejudicial to the defendant, and have caused the jury to infer “ that they were dealing with an old offender,” and for such error the judgment of conviction was reversed.

In the case at bar it is insisted by the learned district attorney that the error was cured because later in the case he offered to prove the facts stated in his opening. Upon the direct examination of one Arthur G. Reynolds, called as a witness by the People, who was an insurance agent and had insured the buildings in question, the witness was asked by the district attorney : “ Q. During the last six years have you effected insurance upon other property of Gilbert Milks aside from this occasion, this mentioned in the policy? A. Yes, sir. Q. And during the last six years have there been five fires before this of property that was insured by you in fire insurance companies, and in each of these cases did the-property burn, and was the insurance money in each of the cases paid to Gilbert Milks? Objected to upon the ground that it is immaterial and incompetent. Tends to prove circumstances,not in any way connected with the charge contained in the indictment, and upon trial here. By the district attorney: I propose to prove that the defendant, Gilbert Milks, has had other property insured during the last six years, and that five different pieces of property have been insured by him in fire insurance companies, and the buildings and property so insured have burned in each and every case under suspicious circumstances, and that the insurance in each and every case prior to the one of June 4th, 1898, has been paid to the defendant by the insurance companies. By the court: My present impression is that the proof is incompetent for the purpose of bearing upon any question in this case; the only purpose it seems to me it could be would be

We fail to see how the fact that the incompetent proof referred to in the opening was subsequently offered by the People, could cure the error or in any way militate against the force of the improper statement. In the case of People v. Smith, supra, the district attorney did not offer to prove the facts stated by him in his opening address. In speaking of that feature of the case the court said: “ If the district attorney had the right to make the proof he proposed, he did not make it, and thus may have prejudiced the defendant by a charge he could not or did not intend to support; if the district attorney had no right to make the proof, then the charge, although no more harmful to the defendant, was a more reprehensible invasion of his rights

After pointing out that it would have been error to have received proof of the facts contained in the statement made in that case, the court said: “ It is difficult to lay down an inflexible rule applicable to irrelevant statements by the public prosecutor to the prejudice of the defendant. In some cases it is manifest they do no harm. In others, where the case depends upon a mass of circumstances, many of which are contradicted, others equivocal except as light is reflected upon them by their association, it is more important that nothing but proven and relevant facts should be brought into the whole field of observation from which the jury are to deduce their conclusion. And as the field enlarges it is the more important that care should be taken to prevent the mingling of mere

The remarks are especially applicable to the case at bar. This case depends upon a mass of circumstances, many of which are contradicted, others equivocal, except as light is reflected upon them by their association. From the statement of the district attorney, from the question propounded to the witness, which contained a restatement of the facts even more pointedly put, and from the remarks of the learned court, it is highly probable that the jury were led to believe that the defendant had committed the crime of arson upon at least five occasions within six years prior to the time of the trial. The jury were not instructed by the court that the statement made by the district attorney, the offer to prove which was but a reiteration of such statement, should not be regarded by them or influence their verdict, or that they should not consider that the facts stated by the district attorney existed; except that the court, at the close of its charge, in answer to the request of defendant’s counsel: “ I ask the court, in view of what counsel stated when he was summing up, upon the question of former fires, to instruct this jury that they have nothing whatever to do with former fires; that they are to consider this case solely upon the testimony which has been given here in this case.”

In response to such request the court said: “ Yes; I so charge.”

In his remarks in excluding the evidence the trial judge apparently assumed that the facts did exist as stated by the district attorney, and as he offered to prove them. The language of the court is: “ It hardly seems that where a similar act was done so remote from the time when this offence was

Assuming that the decision of the court of appeals in People v. Smith is authoritative upon the question that the statement made by the district attorney in his opening in that case constituted reversible error, it would be absurd to hold that such error could be cured by again, during the progress of the trial, specifically calling the attention of the jury to it, and giving it emphasis by calling a witness or witnesses to prove such alleged incompetent facts, which were all embraced in the questions propounded. It does not follow that it is prejudicial error for a prosecuting officer to offer incompetent evidence which is rejected by the court, but we think the rule, which we consider a wholesome one as applied to the trial of criminal cases, may be regarded as settled, to wit, that if a prosecuting officer, in opening a case to the jury, makes a statement of facts which are irrelevant, incompetent and inadmissible, and clearly prejudicial to the defendant, and which are duly objected to and an exception taken, it will constitute reversible error, unless the court, by appropriate language, instructs the jury that such statement of facts should be disregarded by them, and that such alleged facts ought not to be permitted to influence their verdict, and unless it clearly appears that such improper statement did not injuriously affect the defendant’s rights, and that an offer to prove such facts subsequently made during the progress of the trial will not cure such error.

In his opening address to the jury the district attorney made certain statements in respect to one Whalen, who had been called as a witness upon the trial of the indictment against Mitchell Smith by the defendant in that case, and whom the district attorney said he proposed to call as a witness in this

The district attorney then said to the jury: “ Whalen was not put upon the stand in his own behalf and was not sworn. Since the trial of Whalen he has made a complete confession. By Mr. Jewell: I object to the statement. By the District Attorney: I will withdraw that.”

The district attorney then proceeded: “ Since that trial facts have come to my mind which rendered it my duty to place John Whalen upon the stand as a witness in this case, and I am going to do it. By Mr. Jewell: I object to the statement— to the whole of it, as to what has taken place in the Smith-trial, or as to what has taken place in the evidence of this man, and I want an exception.”

In effect the district attorney stated that one of the witnesses

It cannot be possible that a prosecuting officer, whose statements have additional weight with a jury by reason of his official position, may properly state in his opening, in substance : I propose to call a witness who will give evidence tending to prove the guilt of the accused. Upon another trial involving the same facts he made a contrary statement, but it was not believed by the jury. He subsequently was indicted for perjury for having made such statement under oath, and a jury found him guilty, and afterwards he himself admitted that the statement so testified to by him was false.

When John Whalen was called as a witness by the district attorney, he could properly only have been interrogated as to facts within his knowledge legitimately bearing upon the question of defendant’s guilt. Except upon the defendant’s cross-examination it could not have been shown that he had been convicted of perjury by a jury, for having given different testimony upon another trial, and that afterwards he admitted that the testimony so given by him was false. Yet in this case

We think the statements to which attention has been called constituted error, and that it cannot be said that such error was not prejudicial to the defendant. Many of the statements made by the learned district attorney in his closing address to the jury were such as would naturally tend to arouse the passions and excite the prejudice of the jury against the defendant and lead their minds from a calm and dispassionate consideration of the question as to whether or not, upon the evidence, the defendant was guilty of the crime charged in the indictment. The district attorney, in criticising defendant’s counsel, among other things, said: “ I said that the evidence as developed in this case shows and will justify the reputation which he has got of fixing witnesses, and that I had heard that within the last two or three years he had tried to shake off the reputation which he had of fixing witnesses and sometimes jurors.”

‘Upon that statement being objected to, the court said: i think that had better be omitted about the reputation of counsel, because he is not a witness, and while I think you are at liberty to comment upon his connection with whatever may have been done here, or what you claim to have been done in reference to the transaction alluded to by you as having taken place between Gardner and Whalen, and I think you are not permitted to go outside of that.”

The district attorney then said : “ I will withdraw all remarks I made about anything outside of that.”

And he then continued: “ The proof as developed has justified my estimate of his character in criminal cases.”

The defendant’s counsel haying again objected, the court said: “ The question of the estimate of the district attorney is not proper.”

There is no proof in the case bearing upon the reputation of defendant’s counsel with regard to fixing witnesses or

The defendant’s counsel objected to the statement to the jury “ as incompetent and improper to be stated before this jury. There is no evidence in this case that Mr. Jewell did anything of the kind, and I want an exception. ‘ By the district attorney : ’ I want further to state that the district attorney disclaims any intimation or statement that there is any such evidence in the case; that I have not so intimated; that I expressly used these forms of speech by way of illustration of how a juryman might be approached.”

We think the statement of the district attorney that in what he said he did not intend to intimate that it applied to. the defendant’s attorney or to the case at bar, but was merely an

After such statement by the district attorney the court said: “ The remarks are on record, and I suppose whatever error, if any, has been committed will appear on the record. I desire, however, to caution the district attorney that the courts have gone in the direction of limiting the remarks of counsel, prosecuting officers in criminal cases, and that he, being familiar with the rule, will refrain from commenting upon anything except what is before the jury in the way of evidence.”

After the attention of the district attorney was thus called to the extravagant language used by him, he continued: “ I am doing it with my eyes wide open; I have thought of this; I have weighed my words carefully, and I have no fears of the result as far as the records are concerned, and if I am wrong I will stand it. I say it to the jury for the purpose of showing them how important it is that jurors should be above suspicion, and I have used these matters by way of illustration showing how a juror might be approached.”

Again the district attorney said: “ They pawned off their bogus alibi; they made their proof before the jury, and the next grand jury indicted Mr. Whalen for perjury,—What do you find? You find M. B. Jewell and Daniel Powell defending him. Who do you find defending Mitchell Smith ? M. B. Jewell and Mr. Powell. They are poor men, both of them, without a dollar on earth. Who pays the expenses of defending these men? Gilbert Milks, of course.”

The statement of the district attorney was objected to by defendant’s counsel, and he then proceeded: “ The counsel who is defending Gilbert Milks also defended Mitchell Smith and John Whalen; there is no evidence of anybody paying them anything, and if it would comfort his poor soul, I am willing to have it go on the record that probably Mr. Jewell is work

That statement was also objected to. There was not a word of evidence tending to show that the defendant Milks paid Mr. Jewell for defending either Smith or Whalen.

The district attorney then comments at length upon the fact that John Whalen, who was indicted for perjury, did not go upon the stand as a witness in his own behalf upon the trial of that indictment, and he said: “ The reason why John Whalen did not go upon the stand as a witness when he was being tried was because he knew he was guilty, and he knew if he went onto the stand it would injure him, and so he kept off. * * * Now, after that, and after the efforts which had been more- or less well made by the counsel to clear him, it comes down to the question of Gilbert Milks,—what would you expect, that, he was guilty ? He never had told this story to anybody until March; it was an absolutely made-up story. It had been tried once in the Mitchell-Smith case; it had been tried the second time in his own case, although he didn’t go on and tell it, and it failed in his case; then I ask what in Heaven’s name have you got a right to say? Haven’t you got a right to say that that is an established fact? Haven’t you got a right to say that John Whalen did commit perjury, and that he did lie-when he said he saw that man there at midnight ? ”

The record contains only a small part of the summing up of the prosecuting attorney, and no part of the summing up of the counsel for the defendant. The portions of the district attorney’s closing address to the jury which do appear are-inflammatory in the extreme; are such as appeal to the passions and prejudices of the jury rather than to their calm and deliberate judgment, and go far beyond the bounds of reasonable moderation. Facts and circumstances not based upon evidence, without any proof of their existence, are dwelt upon. Vituperation is indulged in; unrestrained denunciation of defendant’s counsel for matters in no way connected with the case upon trial is resorted to, and, in effect at least, the attention.

It is unnecessary to cite or review the numerous authorities upon the subject. The case of People v. Fielding, 158 N. Y. 542 , recently decided by the court of appeals, is decisive of the question, and a long line of cases, decided by the highest courts of this and other States, is referred to in the opinion of the court, which fully sustains the conclusion reached. In that case the defendant was being tried upon an indictment charging him with the crime of consenting to and conniving at the auditing or allowance of a fraudulent bill or claim against the city of Brooklyn, in violation of section 165 of the Penal Code, he being at the time a deputy commissioner of the city works of that city. The district attorney, in his summing up in that case, among other things, 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.”

He further, in glowing and forcible language, assumed to portray the effect of defendant’s crime, by picturing the tax collector’s office as sourrounded by poor people, among them “ the widow, that has starved her brood of little children and seen their faces get pinched and haggard, in order that she might be sure that tax day should not find her with empty hands. It is that woman’s money, coined out of her blood and the blood of her children, that the defendant has stolen and squandered. If you will indulge the pitiful sentiments of your hearts, think of her. Oh, there are unwritten tragedies of •that sort enacted, not in the luxurious habitations of Eighth avenue, but behind the shabby front doors of poor neighborhoods. Look at the old man, standing in line, clutching in his knotted fingers his last year’s receipt— * * * I say you will

There was no proof that any of the facts referred to by the district attorney in that case existed or had any basis whatever, certainly none upon the evidence. Each statement was objected to, over and over again, by the defendant’s counsel; all were overruled and the district attorney was allowed to proceed by the trial court. In that case, when the presiding justice came to charge the jury, he said: “ Some things have been said about the newspapers, about popular clamor and the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case.”

He further charged, upon the request of defendant’s counsel : “ 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.”

After a careful review of the authorities the court of appeals held in that case that the course pursued by the district attorney in his summing up constituted reversible error, and upon that ground alone the judgment of conviction was reversed. The court said (p. 546) : “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

Again, the court said: “ 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 quasi-]udicial 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.”

Again, the court said: “ 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

Again (at p. 553), the court said: “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 ? ”

We have quoted thus at length from the opinion of the court because we think the language is especially applicable to the opening and summing up of the district attorney in the case at bar, and that the decision in that case is an authoritative declaration that what appears in this case constituted reversible error.

It follows that the judgment and order appealed from should be reversed and a new trial ordered.

All concurred; Adams, P. J., concurred in result only.

Judgment and conviction reversed and proceedings remitted to county court of Cattaraugus county, pursuant to section 547, Code of Criminal Procedure.