People v. Sweeney — 36 N.Y. St. Rep. 75

Majority

p. 75

The People, Resp’ts, v. John H. Sweeney, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Criminal law—Identity.

On the trial of an indictment for grand larceny in obtaining money under false pretenses, the complainant and three witnesses identified defendant as one of the parties engaged in the transaction and there was evidence that certain signatures made by one of the parties thereto were in his handwriting. Defendant and his wife testified that he was at a distant place at the time, and this was corroborated by testimony of witnesses taken on commission. Held, that the verdict against defendant could not be said to be against the weight of evidence.

3. Same—Good character.

Good character is not a defense; but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that he is guilty, then his good character though established does not clear him.

3. Same—Witness—Evidence.

A Chicago policeman, who testified to matters in connection with defendant’s arrest, was cross-examined in regard to his previous official history, and on re-direct was asked if he “was one of the officers that was in the Haymarket riot in Chicago blown up by the bomb shells” and was allowed to answer “ I was one of the men who were in that riot.” Held, that the evidence, while immaterial, was not prejudicial to defendant.

Appeal from a judgment of conviction in the Jefferson county court of sessions and from an order of that court denying a motion on the minutes for a new trial.

In May, 1890, the defendant and David McCord alias James Bradley were jointly indicted for the crime of grand larceny in the first degree. It was alleged that on May 2, 1888, the defendant and McCord with another party, by false and fraudulent pretenses, obtained from John B. Chapman, then of the town of Adams in Jefferson county, the sum of $7,040 ; that among other things it was represented that two bars of metal weighing about forty-five pounds each and found the day before on the farm of Chapman were gold, when in fact they were worthless.

In June, 1890, the case was tried and the defendant convicted of the crime charged.

Thos. F. Kearns and W. F. Porter, for app’lt; Frank H. Peck, dist. att’y, for resp’ts.

At the trial the main contention was over the question whether the defendant was one of the parties engaged in the commission of the fraud upon Chapman. It is here claimed that the verdict, in effect finding that the defendant was one of the parties, is against the evidence, and that there is no reliable evidence to justify a verdict of guilt.

The evidence upon this subject is conflicting. The complainant and three other witnesses identified the defendant with more or less certainty, and there was evidence that certain signatures made by one of the parties in the transaction were in the handwriting of the defendant. There were also some circumstances that were claimed to- be corroborative. On the part of the,defendant, he and his wife both testified to his being at the time at

p. 76

his residence in Clyde, Ohio, and this was corroborated to some extent by the testimony of several witnesses taken by commission.

A careful consideration of all the evidence leads us to the conclusion that the evidence is sufficient to sustain the verdict, and that we cannot properly say that the verdict is against the weight of evidence.

After the court had given its charge to the jury, and after the counsel of the defendant had made divers requests which had been answered by the court, the district attorney requested the court to charge “ that if the crime charged in the indictment has been conclusively proven to the satisfaction of the jury beyond a reasonable doubt, that in that case any good character of the defense does not avail him.” The court so charged and the defendant excepted. This is claimed to be error.

The court had previously charged that, in case of a reasonable doubt whether the guilt of the defendant was satisfactorily shown, he was entitled to an acquittal, and that this doubt must be determined upon all the evidence in the case. The court had also, at the request of the defendant’s counsel, specifically charged in substance that the evidence as to the good character of the defendant should be considered by the jury in determining the question of reasonable doubt, and might actually outweigh evidence which might otherwise appear conclusive.

These propositions were not withdrawn by the charge complained of. Taking the whole together, as it should be, the jury were in effect told that if, upon all the evidence in the case, including that as to the defendant’s character, the crime charged had been conclusively proved to the satisfaction of the jury beyond a reasonable doubt, then any good character of the defendant would not avail him. As so construed there was no error.

There was no exclusion from the jury of the evidence as to good character in determining in the first instance the guilt or innocence of the defendant. The cases cited by the defendant, People v. Wile man, 44 Hun, 187 ; 8 N. Y. State Rep., 300, and cases there referred to, would, therefore, not apply. Good character is not a defense, but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that the defendant is guilty, then his good character, though established, does not clear him. Such, in substance, was the rule laid down by the trial court in this case.

Charles Nordrum, a police officer from Chicago, was called by the People as a witness in regard to certain matters in connection with the arrest of the defendant at Chicago.

He was examined and cross-examined, and then, upon his redirect examination, he was asked the question : “Are you one of the officers that was in the Haymarket riot in Chicago, blown up by the bomb shells ?” This was objected to by the defendant’s counsel as incompetent and immaterial, and the objection was overruled and exception taken. The answer was: “ I was one of the men who were in that riot.” This ruling is claimed to be er

p. 77

roneo as. It will be observed that the answer is not fully responsive. The witness had been cross-examined in regard to his previous official history, and a reasonable latitude upon the redirect by way of explanation was allowable. It may be that, strictly speaking, the evidence was irrimaterial, but in the form the answer was given no possible injury would be occasioned to the defendant.

We have examined the other exceptions presented on the part of the defendant, and find nothing that calls for a reversal. It is not apparent that any substantial right of the defendant is affected. Code Crim. Pro., § 542.

It follows that the judgment and order should be affirmed.

Judgment and order of the court of sessions of Jefferson county affirmed, and the clerk directed to enter judgment and remit certified copy thereof, with the return and decision of this court, to the court of sessions of Jefferson county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Hardin, P. J., and Martin, J., concur.