People v. Lewis

Prior to September, 1922, the defendant occupied an apartment with Louisa Lewis who had lived with him for ten years as his wife. Her mother and sister lived with him in the same apartment. On the evening of September 10, 1922, Mrs. Lewis and her sister went to a moving picture theatre leaving their mother, Katherine Weiland, who was eighty-six years of age, alone in the apartment. When they returned from the theatre they found that their mother had, during their absence, sustained injuries, consisting of a wound above the left eye, a fracture of the left hip and various contusions and discolorations on her face and body. Mrs. Weiland died as a result of these injuries and the shock accompanying them on September 28. It was claimed that the defendant assaulted this old woman and thereby caused her death, and he was indicted and convicted on the charge of manslaughter in the first degree.

Upon this appeal there are no exceptions which call for consideration by this court of the sufficiency of the evidence to sustain the conviction. The exceptions in the record bring up for review only the competency of the testimony in regard to certain statements made by the deceased as to the manner in which she sustained the injuries, and the correctness of the court’s refusal to charge that the jury should disregard such testimony. The daughters of the deceased testified that after they returned home the defendant admitted that he had knocked down the deceased and the decased stated to them in the presence of the defendant that the defendant had “ knocked her down, kicked and stepped on her.” This testimony was admitted without objection; in fact it was elicited, in large part, by questions put to these witnesses by the defendant’s attorney on cross-examination. Thereafter a grandson of the deceased was called as a witness for the prosecution. He testified that in the course of the evening the defendant had come

These alleged statements by the decedent constituted a narrative of what had occurred, rather than an exclamatory utterance, and they were made after a lapse of time and under circumstances which in no wise exclude the idea of fabrication. They were not the implusive and instinctive outcome of the occurrence which caused the injuries and they were, therefore, clearly not admissible as part of the res gestee. (People v. Del Vermo, 192 N. Y. 470 ; Greener v. General Electric Co., 209 N. Y. 135 ; People v. Sprague, 217 N. Y. 373 ; People v. Custis, 225 N. Y. 519 .) It is urged, however, that they were admissible because alleged to have been made in the defendant’s presence. Even though made in the defendant’s presence they would not be .competent evidnee or have" any probative force unless they were made under circumstances where the defendant’s silence under the accusation might be regarded as an admission of its truth, but obviously the defendant’s silence could constitute no admission if the accusation was made in a language he did not understand and if he did not know that he was being accused.

The People’s contention that here and there in the record may be found indications that the defendant did understand some German and that the court and jury were not required to accept as true the testimony that he did not understand that language, requires no serious consideration; for the judge

Moreover, the defendant was entitled to the charge which he requested to the effect that the jury “ should disregard any statements supposed to have been made by Mrs. Weiland in German, they are to disregard them entirely.” This request was intended to apply to all the testimony in regard to statements by Mrs. Weiland including the testimony elicited by the defendant or .introduced without objection from him, and the correctness of the request must be judged accordingly. The trial judge had already charged that the silence of the defendant under the accusations made in German could not be considered as an admission of guilt and even the respondent does not argue that upon any other theory they had probative force upon any issue submitted to the jury. The defendant promptly objected to the introduction of such testimony when the prosecution offered it as evidence to prove that the injuries occurred in the manner asserted by the injured person. The earlier evidence as to what Mrs. Weiland had said was introduced not to show that the injuries occurred in the manner asserted but only as having some possible bearing upon the probability of the defendant having admitted in express words to the wit

The judgment of conviction should be reversed and a new trial ordered.

Hiscock, Ch. J., Oardozo, Pound, McLaughlin, Ceane and Andrews, JJ., concur.

Judgment of conviction reversed, etc.