People v. Stoddard — 45 N.Y. St. Rep. 915

Majority

p. 915

The People, Resp’ts, v. Dwight Webster Stoddard, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 13, 1892.)

Headnote

Foeguky—Evidence.

On the trial of an indictment for forging the name of complainant to a note for §400, there was some evidence tending to warrant an inference that defendant had loaned that sum to the complainant, and that she had executed the note to evidence such loan. The complainant’s husband was permitted, under objection, to testify that he did not know or hear of his wife having that sum of money at or about the date of said note. Held, error.

Defendant was indicted for forgery in the second degree, in having forged the name of Mary B. Mack to a note of $400, payable to Sophronia Stoddard, dated October 19, 1888; and the indictment was brought to trial in the Herkimer sessions before a jury; a verdict of guilty was rendered; a motion for a new trial was made and denied ; affidavits were read on the motion for a new trial tending to show that the juror Ausman was related to the complainant in the prohibited degree; no objection in that regard was taken during the trial, as it was not known to the de

p. 916

fendant that any relationship existed. Complainant, Mrs. Mack, testified that she did not sign the note or authorize its execution. Numerous witnesses were called who testified that in their opinion the signature was that of the complainant.

J. A. Steele, for app’lt; I. P. Devendorf, district attorney, for resp’ts.

During the trial some evidence was given tending to warrant an inference that prior to the execution of the disputed note the defendant had loaned to her $400, and that she had executed the note to evidence such loan.

The People called George W. Mack, the complainant’s husband, and put to him the following question : “ Q. Did yon know or hear of your wife having $400 at or about October 19, 1888 ?” This was objected to and the objection overruled, and defendant excepted. The witness answered: “No, sir.” Then the People put the following question: “ Q. Did you know or hear of your wife’s having $400 at any time during the year 1887, that is, from September 1st ?” Objections were taken and overruled, and defendant excepted. The witness answered: “No, sir.” We are of the-opinion that the court erred in receiving the evidence. We cannot say that the error was not prejudicial to the defendant and disregard the error under the rule laid down in § 542 of the Code of Criminal Procedure.

We cannot say that the evidence had no effect upon the result. People v. Wayman, 128 N. Y., 585 ; 88 St. Rep., 747 . The issues were sharply contested at the trial, and to say the least the case was a close one on the main questions, and the evidence thus improperly received may have influenced the jury. Other questions were discussed before us upon the argument, which need not be considered, as the error we have, pointed out requires a new trial.

Conviction and order and judgment reversed, and the clerk directed to enter judgment and serve a certified copy thereof with the return and decision of this court to the court of sessions of Herkimer county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

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