People v. Kadel — 160 N.Y.S. 817

Majority

p. 817

(95 Misc. Rep. 514)

PEOPLE v. KADEL.

(Bronx County Court.

May 2, 1916.)

Headnote

Witnesses <3=370(3)—Impeachment—Malice.

In a prosecution for disorderly conduct, involving abusive language toward and an assault upon a, woman, growing out of tho defendant’s presence on her lot, he had the right to show by a cross-examination the existence of hostility on the part of the prosecuting witnesses, by reason of his having brought actions at law against their brother, in one of which one of the prosecuting witnesses was a surety on an appeal bond.

I Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. <3=370(3).]

©=>For other cases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes

Appeal from Magistrate’s Court.

John Kadel was convicted of disorderly conduct, judgment was suspended, and he appeals. Reversed, and new trial ordered in the County Court.

J. Philip Van Kirk, of New York City (Ely Neumann, of New York City, of counsel), for appellant.

Francis Martin, Dist. Atty., of New York City (Richard H. Mitchell, of New York City, of counsel), for the People.

This is an appeal from a judgment of conviction rendered in the City Magistrate’s Court. The appellant was convicted on the 29th day of November, 1915, of the offense of disorderly conduct before the said City Magistrate’s Court, Eighth District, and judg

p. 818

ment suspended. The defendant’s good character was conceded by the complainant, through her counsel. The defendant is a member of the bar in good standing, and holds a public position of trust and confidence. Under the circumstances, a conviction even for such a minor offense as disorderly conduct, where it involves abusive language towards and an assault upon a woman, is a serious blemish upon his personal and professional reputation. The complaining witness, Elizabeth Page, was supported in her version of the alleged disorderly conduct of the defendant by her sister, Ethel Page, and the defendant’s explanation as to what occurred was corroborated by his wife, Amanda Kadel. It is evident, therefore,- that tire questions of fact as to the disorderly conduct were close, and that any evidence which would have a tendency to prove feelings of hostility on the part of the witnesses towards each other, or which would show malice or ill feeling, was important and highly illuminative of the transaction.

The complaining witness testified in substance that the defendant, while out walking with his wife, on Sunday afternoon, the 10th day lof October, 1915, entered a plot of ground in the Bronx under her control, and that she ordered him off, and that he refused to go; that she then attempted to lead him out, taking him by the arm for that purpose; that after some words on both sides the defendant struck her a number of blows on the face and head, and used violent and abusive language while doing so. The defendant denied that he was disorderly, or that he assaulted the complainant, asserting that in point of fact he was insulted and beaten by the complainant and her sister, Ethel, heretofore referred to. The defendant also testified before the Magistrate’s Court that the occasion of his presence on the lot in question (which is located in a sparsely settled section of the Bronx) was to pick some flowers for his wife. He attempted to show by his cross-examination of the complaining witness and her sister that their testimony was based in malice and that their conduct towards him was induced by feelings of resentment arising from the fact that he had brought certain actions at law against their brother, Raymond Page, with whom they reside, in one of which Elizabeth, the complaining witness, was surety on a bond given on appeal in the Appellate Division of this Department (Magistrate’s Minutes, pp. 11, 26, 57).

The magistrate who presided appears to have taken the position that the witnesses were not subject to cross-examination along these lines. To use his words (page 26, Magistrate’s Minutes), “I think that is too remote,” and sustained various objections to this line of cross-examination. In this respect I think the learned magistrate committed serious error affecting the substantial rights of the defendant. In my judgment, the defendant should have been given the widest possible latitude on cross-examination to show feelings of hostility, prejudice, bias, or malice. Under the circumstances surrounding the complaint, the defendant had an unquestionable right to show by his cross-examination the existence of any relevant facts which would show hostility on the part of the prosecution’s witnesses, based on their blood relationship with one whom the defendant had engaged in serious

p. 819

and bitter litigation. The competency and materiality of evidence to prove the existence of hostile relations between a witness and the party against whom he is called is well settled in our law and supported by numerous decisions in our state as well as other jurisdictions. A leading case bearing upon this proposition is the case of People of the State of New York v. Rachael Brooks, 131 N. Y. 321 , 30 N. E. 189 , part of the headnote reading as follows:

“The hostility of a witness towards a party against whom he is called may be proved by any competent evidence, either by cross-examination of the witness or by the testimony of other witnesses.”

There are a number of other circumstances developed in the record before the magistrate which lead me to the conclusion that the defendant did not receive the legal trial which he was entitled to, particularly so much of the minutes which show the colloquy between the court and the various parties, including the defendant, and which resulted in the defendant making an apology to the complaining witness, upon the court’s statement, before pronouncing judgment, “ * * * An ample apology would cover the whole thing.” It appears, however, that after the defendant apologized through his counsel, the counsel stating (page 67, Magistrate’s Minutes), “The defendr ant apologizes publicly for the fact -that there was any excitement or trouble that day, and is sincerely sorry that anything should have happened,” the court found him guilty in the words (Magistrate’s Minutes, p. 68), “I find the defendant guilty and suspend sentence.”

On this point, it is unnecessary to make further comment, since I regard the errors in the exclusion of the question on cross-examinatian, heretofore referred to, as vital and substantially affecting the rights of the defendant.

The judgment of conviction is reversed, and a new trial ordered in this court, pursuant to section 768 of the Code of Criminal Procedure.