People v. Bahr — 17 N.Y. Crim. 17

Majority

p. 17

Supreme Court—Appellate Division, Fourth Department.

July, 1902.

THE PEOPLE v. HENRY BAHR.

(74 App. Div. 1.)

Headnote

Teial—Evidence as to Good Chabactee on Teial fob Sodomy.

The error made in excluding corroborative testimony offered by one charged with sodomy as to his good character after he had denied the commission of the crime is not cured by the concession of the district attorney made after he ascertained that it was an error, that “ the witnesses offered by the defense as to good character would testify that the general reputation of the defendant is good.”

Appeal by the defendant, Henry Bahr, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of April, 1901, upon the verdict of a jury convicting him of the crime of attempting sodomy, and also from an order entered in said clerk’s office on the 3d day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Lewis Stuyvesant Chanler, for the appellant.

Robert C. Taylor, for the respondent..

The facts are such as not to justify elaboration and it is sufficient upon this appeal to point out an error committed upon the trial which, we think, requires a reversal of the judgment.

From the nature of the crime charged and the participation of the two witnesses, upon whose testimony the conviction was based, it was of the utmost importance tó the rights of the defendant that he should have the full benefit of any testimony he might be able to produce which would bear upon his good

p. 18

character. He went upon the .stand and denied that he had committed the crime of which he was accused, and that he had ever seen or known the witnesses who testified against him. Upon this state of the record the question of defendant’s guilt was a close one, and the error in excluding thereafter testimony offered by him as to his character, which evidence was entirely competent, was necessarily harmful. This error was not cured by the concession of the district attorney made after he had ascertained his mistake in having such evidence excluded, that “ the witnesses offered by the defense as to good character would testify that the general reputation of the defendant is good.” The defendant having the witnesses in court and having placed them upon the stand was entitled to the benefit of their oral testimony.

Judgment accordingly should he reversed and a new trial ordered.

Present—Van Beuht, P. J., O’Beieh, Ihgbaham, McLaughlin and Hatch, JJ.

Judgment reversed, new trial ordered.