People v. Thornton — 12 N.Y. St. Rep. 743

Majority

p. 743

The People, etc., Resp’ts,v. Ransome H. Thornton, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1887.)

Headnote

Evidence — Criminal law — Perjury — Admissibility of evidence TENDING TO AFFECT THE CREDIBILITY OF THE WITNESS FOR THE PROSECUTION.

The defendant was being tried on the charge of perjury. He had testified as to certain facts on a former trial. One of the witnesses for the prosecution who testified as to the falsity of the testimony of the defendant was asked whether he had not made certain statements as to the facts as

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testified to by the defendant on the former trial or had not stated that he could not recollect as to the circumstances. This testimony was ruled out. Held, error, that it would have an important bearing upon the credibility of the witness and the amount of faith and credit that the jury should place upon his testimony.

_ Appeal from a judgment of the Allegany court of sessions, entered upon a verdict of conviction of the crime of perjury.

Norton & Church, for app’lt; O. A. Fuller, district-attorney, for resp’ts.

The crime for which the defendant was convicted was for wilfully and corruptly swearing upon the trial of a divorce action in which Everett M. Crandall was plaintiff and Adelia E. Crandall defendant, to the effect that he had seen Crandall in company with George Peckham in a house of prostitution at Coleville, kept by one Jeannetta Yorkie, with whom Crandall made arrangements for illicit intercourse upon his paying three dollars.

On the trial George Peckham was sworn as a witness on behalf of the people, and gave evidence to the effect that this testimony of the defendant in the divorce action was entirely false and untrue. After the people had rested Peckham was again recalled by the defendant and was asked: “Did you, on the occasion of the trial of the Crandall Case at Norton & Church’s office, when Allen Peck-ham asked you if you had not previously told him that you and Mr. Crandall did visit a house of prostitution in Cole-ville, and that you had loaned Crandall two dollars and afterwards one dollar to go upstairs with a girl, say that you might have said so; that you did a great many things that you could not now recollect ? ” This was objected to by the district-attorney, the objection was sustained and exception taken by the defendant;

It appears to us that this evidence should have been admitted. It bears upon the vital question at issue. The defendant has been convicted of the crime chiefly upon the testimony of Peckham. If he could have shown that Peckham had made statements to the effect that the defendant’s testimony was in substance true, or if he ever admitted that he might have made such statements, but could not recollect, it would have an important bearing upon the credibility of the witness and the amount of faith and credit that the jury should place upon his testimony.

This question was proper on cross-examination, and should have been then asked, and perhaps it. was within the discretion of the trial court to exclude it at this time, but it was not objected to on this ground, and it is the general practice in criminal trials, in case the defendant or his counsel has overlooked or forgotten evidence, to allow

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reasonable, even liberal latitude, in permitting it to be called out. The evidence excluded might have been important to the defendant. It might have satisfied the jury that Beckham’s testimony was unreliable and should not be believed.

Section 527 of the Code of Criminal Procedure, among other things, provides that the appellate court may order a new trial if it be satisfied that justice so require, whether any exceptions shall have been taken or not in the court below. We can but feel that under the circumstances the trial court should have permitted the question to be answered and, believing that the defendant has been deprived of important testimony, we are of the opinion that a new trial should be had.

Question was also made in reference to the competency of the evidence as to the defendant’s intimacy with Crandall’s wife. It, however, appears to us that this evidence-was properly received- by the trial court as tending to show a motive on the part of the defendant for doing that which he has been convicted of doing.

The judgment and conviction are reversed and new trial ordered, and for that purpose the proceedings are remitted to the court of sessions of Allegany county.

Smith, P. J., Barker and Bradley, JJ., concur.