People v. Way — 21 N.Y. Crim. 149

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p. 149

SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,

May 10, 1907.

THE PEOPLE v. LOUIE WAY.

(119 App Div. 344.)

Headnote

(1) . Evidence—Assault—First Degree.

In identifying the person shot and killed by the defendant it is not essential for the prosecution to show by the best evidence that they designated such person by his right name Evidence is admissible to show that he was known by that name. Such evidence is not directly hearsay nor within the rule excluding hearsay. „

(2) . Same.

The jawbone of the decedent, which was fractured by a bullet, is admissible to corroborate evidence that the defendant shot at decedent’s' chin, and to identify decedent.

(3) . Same.

The trial court may permit leading questions within reasonable discretion.

(4) . Same.

The disposition made by the court and grand jury of the cases of other persons arrested at the same time as the defendant is inadmissible to show that the officer making the arrest-did not know who was guilty.

Appeal by the defendant, Louie Way, from a judgment of the Supreme Court, rendered on the 28th day of May, 1906, at the New York Trial Term, convicting the defendant of the-crime of assault - in the first degree, and also from two orders denying, respectively, the defendant’s motions for a new trial and in arrest of judgment.

Lyman A. Spalding [Forbes J. Hennessy, Daniel O’Reilly and George S. Scofield, Jr., with him on the brief], for the0 appellant.

Robert S. Johnstone, Deputy Assistant District Attorney, for the respondent.

The defendant was jointly indicted with two others for mur

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der in the first degree, in feloniously causing the death of one Chin Yen, by shooting with a loaded pistol. Upon the trial the evidence tended to show that other pistols were fired at about the same time; and it being doubtful whether the defendant fired the shot which caused the death, the district attorney withdrew the charge of homicide. The court, in charging the jury, read and defined the provisions of the Penal Code with respect to the crime of assault in the different degrees.^[1]

The People presented evidence tending to show, and which justified the jury in finding, not only that the defendant fired a pistol shot at the decedent, but that - the bullet struck his chin. The defendant had a fair trial and the charge of the learned justice met with the approbation of counsel for the defendant, who volunteered the statement at the close thereof as follows: “ The charge is eminently satisfactory to the defendant. I have no requests.”

The appellant contends that the body of the decedent was identified as that of Chin Yen specified in the indictment, in whole or in part by hearsay testimony. It was clearly established that the man at whom the defendant shot, died as the result of a bullet wound inflicted at or about that time. It was only incumbent on the People to show that the defendant assaulted the individual named in the indictment. It was not essential for the People to show by the best evidence that they designated the person assaulted by his right name. It is sufficient to show that he was known by that name. Of course, evidence of the name by which a person is known is not the best evidence as to his true name, and in a sense it is hearsay; but it is not strictly hearsay or within the rule excluding hearsay evidence. (Wigmore Ev. § 667; Willis v. Quimby, 11 Fost. [N. H.] 487.) There is no evidence in the record tending to show that the name by which the decedent was spoken of by those who apparently knew him, was not his name or that there was any one

* See Penal Code, § 217 et seq.—[Rep.

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else by that name in this country, or that the defendant was in any manner prejudiced or misled concerning the identity of the individual upon whom it was claimed he had made the assault.

It is further claimed that the court erred in receiving in evidence the jaw bone of the decedent which was fractured by a bullet. This was competent to corroborate the evidence tending to show that the defendant fired at the decedent’s chin and to identify Ohin Yen, whose jaw bone it was, as the individual upon whom the assault was committed.

It is further urged that the conviction should be reversed because the district attorney was permitted to ask leading questions with respect to the shooting. The trial court is vested with a reasonable degree of discretion to permit leading questions to be asked, and we are of opinion that this discretion was not abused.

The appellant also complains that his counsel was not allowed to show what disposition was made of the charges made against certain other individuals arrested at the same time. It is claimed that this was competent as tending to impeach the testimony of the police officers upon the ground that they made unwarranted arrests and did not know who were guilty. The disposition of a criminal charge by the court or grand jury, in the absence of some admission by the officer who made the arrest, would not be competent as tending to impeach his testimony in respect to a commission of the crime by the party arrested by him.

A transcript of the minutes of the stenographer to the coroner showed that the officer who claimed to have arrested the defendant for this crime testified that he arrested one Louie Lay therefor, but it appeared by the stenographer’s original notes that the answer of the police officer was that he arrested Louie Way, this -defendant. In some instances in the stenographer’s original notes the name Lay appeared. The appellant contends

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that the court erred in excluding a question propounded to the stenographer to the coroner, as to whether a question asked of the policeman and shown by a transcript of his minutes to be “ Do you know where Louie Lay lives,” was Way or Lay in his original notes. It is manifest that this would not have tended to contradict the policeman and no error was committed in excluding it.

The guilt of the defendant was quite satisfactorily shown and we find no reversible error. It follows that the judgment should be affirmed.

Patterson, P. J., Ingraham and Clarke, JJ., concurred.

Judgment and orders affirmed.