People v. Frindel — 35 N.Y. St. Rep. 805

Majority

p. 805

The People, Resp’ts, v. George Frindel, App’lt.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

1. Assault—Evidence.

‘On the trial of an indictment for an assault in the second degree, evidence of specific acts is not admissible to prove the complainant’s character for quarrelsomeness; nor is evidence as to his general reputation in that respect admissible where the defendant does not claim that the act for which he is tried was committed in self-defense.

2. Same—Tbial.

A refusal by the court to take from the jury the consideration of a count charging assault in the first degree is not ground for reversal where the conviction was not under that count.

3. Witness—'Competency—Infants.

There is no rule or practice requiring that, where a witness is of such tender years as not to be able to comprehend the nature of an oath, his unsworn statement is to be taken for what it is worth.

Appeal from judgment of the court of general sessions convicting the defendant of the crime of assault in the second degree.

A. Steckler, for app’lt; McKenzie Semple, for resp’ts.

This appeal presents for review the question as to the propriety of the rulings of the court in excluding evidence offered by the defendant of the complainant’s character for quarrelsomeness.

This evidence was of two classes: one, an attempt to prove specific acts, and the other, to establish the complainant’s general reputation in that respect.

It is not necessary to multiply authorities to show that evidence of specific acts is not admissible. Thomas v. People, 67 N. Y., 218 .

Neither was the evidence as to general reputation admissible in view of the nature of the defense, because it was not at all claimed by the prisoner that the act was committed in self-defense. Upon the contrary, he testified that the complainant ran into the knife himself, and that the knife was not taken out for any purpose of self-defense, but simply to scare the complainant. This seems to

p. 806

bring the case within the principle of Abbott v. People, 86 N. Y., 470 , in which it is held that testimony of a quarrelsome disposition is not admissible where, under the circumstances, there is no ground for claiming that the act for which the prisoner is being tried was committed in self-defense.

There is another reason why no error was committed in the exclusion of this testimony. At the time it was offered no evidence whatever had been given of an assault by the complainant upon the defendant; and the judge in excluding the testimony expressly stated that he excluded it at that stage of the case; and after the testimony of the defendant of an assault by the complainant no offer of the testimany was made.

Another point is raised that the counsel for the defendant, after the People had rested their case, ásked the court to take from the jury the consideration of the first count in the indictment, which charged assault in the first degree. This was refused, and the defendant excepted. The prisoner, however, does not seem to have been in any way injured by this ruling, because he was not found guilty of assault in the first, but in the second degree. It does not appear that the jury were influenced by it, nor that he was damaged thereby.

Another point raised is that a child of eight years, called as a witness for the defendant, who showed from his testimony that he had no apprehension of the nature of an oath, was not permitted to testify.

It is claimed that it is a well known practice in criminal triáis, when such a witness is called by either party, to take the unsworn statement of the witness for what it is worth. With all due respect to the learned' counsel, we are not aware of any such rule or any such practice. The law requires the testimony of wit-' nesses to be given under "the sanctity of an oath, and where a child is of such tender years as not to be able to comprehend the nature of an oath, it seems to us that the safeguards which the law has placed around human testimony would be entirely overthrown, were its statements permitted to be given.

There does not appear to be any error which calls for a reversal . of the judgment, ana it should be affirmed.

Daniels and Brady, JJ., concur.