People v. Drake — 47 N.Y. St. Rep. 783

Majority

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The People, Resp’ts, v. Sarah E. Drake, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.)

Headnote

Assault—Evidence.

On the trial of an indictment for assault in the third degree, the defendant having been called as a witness and denied the charge, and testified that she never had a pistol in her pocket or had possession of one in eighteen months, was asked on cross-examination whether she had not in various instances named drawn a pistol and threatened to shoot persons named, and denied having done so. On re-direct the prosecution called such persons, and others, who testified that defendant had drawn the pistol and made such threats, the court stating that the evidence was received only on the question as to whether she had a pistol in her possession. Held, error; that evidence of threats or assaults at other times than the one in question was inadmissible. 1

Verdict in the Broome county sessions of guilty of the crime of assault in the third degree. After the verdict a motion was made for a new trial upon the merits and the exceptions taken during the trial, and upon the ground that the verdict of the jury

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was contrary to the weight of the evidence. The motion was denied. Defendant was sentenced to be confined in the Albany County Penitentiary for the term of nine months. The county judge certified that there was “a reasonable doubt whether the judgment of conviction should stand.” Judgment was entered, and the defendant appeals from the judgment and the order entered on the 19tli day of October, 1891, denying the defendant’s motion for a new trial. The People gave evidence tending to establish the crime alleged in .the indictment. Thereupon the defendant was sworn as a witness and denied the essential parts of the testimony given by the complainant, and denied the threats testified to by the complainant; and testified: “I never uttered such a word in my life, ‘ That if you don’t give me the farm I intend to have your heart’s blood,’ and I never used anything like it; there was nothing of the kind occurred between us. He has told a falsehood when he tells any such thing as that. At that interview I didn’t use any such language as that. I never used it in my life to any one, to him or any one else. * * * I never had a pistol when I was up in the woods, in my pocket. I never had a pistol in my pocket; I don’t carry any at all for nothing; I have not had in my possession within the last year or eighteen months a revolver. Mr. Dickenson is mistaken when he says I had a pistol in my pocket in the woods; I did not have such a revolver, pistol or firearm ; I never went armed in my life ; * * * I did not have in my possession a firearm, revolver or pistol; I had my fan. * * * That day that I met Mr. Dickenson on the walk, I bad that fan with me; I did not have my shawl on my arm that day; I did not take out a revolver and point at him ; I did not point a loaded revolver; I didn’t have any shawl and no revolver that day ; I did not take a revolver from under my shawl and point it at him; what I had in my hand was that rubber cloak and that fan; I did not say to him ‘ Now I am going to kill you ; ’ I did not use that language to Mr. Dickenson or anything like it; I made no threats on his life that day or at any other time.”

She was asked on her cross-examination if she ever carried a pistol and her answer was “ No.” She was asked if about the month of June, she “threatened to shoot Johnny Fee with a pistol or revolver ? ” and upon that question being objected to, the court allowed, over an objection and exception, the witness to answer the following question: “ Q. Did you not in about the month of June or July, this past summer, 1891, have in your possession a revolver or pistol ? ” She answered “I did not.” She was also asked: “ Q. Did you not draw a pistol and threaten to shoot James Murphy sometime during the past year ? ” The question was objected to; an exception was taken and the witness answered, “ I did not.” She was also asked: “Q. Did you draw a pistol and threaten to shoot this man' Hanyon sometime during this present year ? ” The question was objected to; an exception was taken, and the witness answered, “I did not.” She was asked “Didn’t you draw a pistol and threaten to shoot Stephen Pettis ? ” Objection and exception taken, and she answered, “I didn’t.” She was.

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asked, “ Did you go to Caleb Gage’s blacksmith shop in Hawleyton with a loaded revolver in your hand and threaten to shoot his dog?’’ Upon objections being taken to the question the court observed : “ I will admit this question as bearing simply upon the facias to whether she had a pistol in her hand and possession.” Defendant took an exception to the ruling and the witness answered, “I did not.” Then a question was put:“Q. Did you draw a revolver or pistol to shoot A. B. Hayden on your premises- or in your barn within three years? ” Upon the objections being stated to the question, the court observed, “ I will admit that only as I have before, as merely upon the question as to whether she had a revolver in her possession; simply bearing upon that question." An exception was taken and the witness answered, “ I did not.” She was also asked “ Q. Did you not about three years ago meet John Giblin and his hired man Murphy in Hawleyton, and draw a pistol and threaten to shoot him, John Giblin? ” Upon objections being stated to the question the court observed “Admitted upon the question as to whether she had a pistol in her possession at that time only.”

An exception was taken by the defendant and she answered “I did not.”

By way of reply to the defendant’s evidence the People called Caleb Gage and put to him the following question:

“Q. Do you remember an occasion of her going past your shop and having a revolver in her hand ?” The witness answered “I do.”

“Q. Threatening to shoot your dog?” “A. Yes, sir.” i

“ Q. State if you can what it was, and when it was ?” This was objected to and the court observed:

“You may ask the witness the question that you put to Mrs. Drake." Defendant took an exception. “A. That was some five or six years ago; I could give the exact time.” It was again objected to and overruled and an exception taken by the defendant, and the court observed, “ It is distinctly understood that this evidence is admitted only upon the question as to whether this defendant ever had a pistol in her possession.”

“ Q- At that time did she have a pistol in her hand and threaten to shoot your dog ?” Objections were again stated and the court observed : “ The objection is overruled within the ruling already-laid down by the court.” An exception was taken and the witness answered “ She did.” 1

Peter Yosburg was called as a witness for the People, and he was asked:

“ Q. State whether on that occasion Mrs. Drake' had a pistol and threatened to shoot his dog ?” Objections were taken and an exception, and the witness answered, “ Yes, sir, she did.”

John Giblin was called for the People and testified:

“ Q. Did Mrs. Drake about three years ago meet you and your hired man Murphv in Hawleyton and draw a pistol and threaten to shoot you?” Objections were stated and exception taken, and

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the witness allowed to answer: “ It is a mistake; there is no such talk.”

“ Q. I refer to a conversation at her house, not in the streets of Hawleyton, but in her house at Hawleyton ? A. That was in the summer of 1885 or 1886.” This was objected to by the defendant on the further ground “ that her attention was not called to the time and place.”

Julia Stewart was called as a witness for the People, and asked:

“ Q. I will repeat the question; did you in May last see Mrs. Drake and John Fee on Pennsylvania avenue in this city, and at that time did you see Mrs. Drake draw a revolver, and threaten to shoot John Fee?" Objections were stated and overruled, and the defendant took an exception, and the witness answered, “ I saw her draw a revolver.

“ Q. Threaten to shoot him ? A. Whether she said she would shoot him or not, I couldn’t say, but she said she would fix him.

“Q. You saw her draw a revolver, and make that remark? A. Yes, sir.”

Laura Thiele was called by the People, and the following question was put to her:

“Q. At this time in May did you see Mrs. Drake on Pennsylvania avenue, in this city, draw a revolver or pistol and threaten to shoot John Fee?” Objected to; objection overruled, and the defendant answered, “I saw her draw a revolver and say she would fix him; I wouldn’t say positively she said she would shoot him; it is so long ago, I have forgotten, but she said she would fix him.”

William Hayden testified in behalf of the People. He was asked:

“ Q. Did Mrs. Drake at that time draw a revolver and threaten to shoot you ?” Objections were stated ; overruled; an exception was taken, and the witness answered, “Yes, sir.

“ Q. How did she have the revolver ? A. She had it right in her hand; pointed it towards me.”

A. B. Hayden, was sworn for the People, and testified to having a conversation with the defendant in 1887, and the following question was asked:

“ Q. In that conversation did Mrs. Drake draw a revolver or pistol, and threaten to put a hole through you if you did certain things?” This- question was objected to on the grounds before stated, and on “ the ground that her attention was not called to any such time." The objections were overruled; the defendant took an exception, and the witness answered “Yes, sir.

“Q. Was the pistol fired on that occasion? A. Shot off as I went out of the barn."

James H. Dunn was called as a witness for the People, and proved by him that he called on Mrs. Drake about six years ago to settle an account; and then put to him the question:

“ Q. Did Mrs. Drake in that conversation take a pistol or revolver from a drawer?” Objections were stated; an exception taken, and the court observed: “It is only received on the question as to whether she had a pistol in her possession.” The witness answered “That is what she called it.

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“ Q. Did she take this pistol in her hands, and say to you that is the way she pays her debts ? A. She said that is the way she would pay me: I don’t know whether she paid others that way or not.”

A. A. White, for app’lt; W. D. Painter, dist-atty., for resp’ts.

—In The People v. Gibbs, 93 N. Y., 470 , it was held, viz: “Upon trial of an indictment for assault with intent to kill, evidence showing the commission by the prisoner of another similar assault, at a different time and place, and upon a different person is not competent.” In the course of the opinion delivered in that case it was said “ The effect of the evidence was to present to the jury testimony relating to another assaült and to an entirely different transaction, which might well tend to prejudice their minds against the defendant in reference to the charge for which he. was on trial.”

In People v. Sharp, 107 N.Y., 467 ; 12 St. Rep., 217 , Peckham, J., said: “ The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his life time is wholly excluded.”

In Commonwealth v. Jackson, 132 Mass., 16 , in the course of the opinion it was said, “Evidence of the commission of other crimes by the defendant may deeply prejudice him with the jury, while it does not legally bear upon his case. It certainly would not be competent in order to show the intent with which one entered a house or took an article of personal property to prove that he had committed a burglary or larceny at another time. * * * Such evidence compels the defendant to meet charges of which the -indictment gives him no information, confuses him in his defense, raises a variety of issues and thus diverts the attention of the jury from the one immediately before it, and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him.”

In People v. Wood, 3 Park. Crim., 684, it was said: “It is quite true that the prosecution cannot prove the commission of another and distinct felony by the prisoner for the purpose of establishing the fact directly that he committed the one for which he is then on trial, or for the purpose of raising any direct inference in the affirmative of the principal issue. * * * The common law, with more humanity and better logic, forbids such evidence in support of the principal issue, and limits its admission to minor issues, such as motive and scienter, and even then confines it to cases where there is some apparent connection or relation between the imputed motive or guilty knowledge and the felony proposed to be proved.”

In People v. Greenwall, 108 N. Y., 296 ; 13 St. Rep., 638 , the defendant was called as a witness in his own behalf; and upon being cross-examined as to his connection with another burglary at the house of one Mohring, and in the cross-examination, as well as in the re-examination, he denied that he had ever entered any

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man's house in the night-time with intent to steal; subsequently Mohring was called to the stand by the prosecution and permitted to testify under objection to evidence showing that the defendant did burglariously enter his house in the night-time. The ruling admitting such evidence was held to be erroneous; and it was also held in that case that the incompetent evidence was damaging in its nature and could not be said to have been harmless, andj therefore, its reception required a reversal. In the course of the' opinion in that case it was said: “ It is never competent upon a criminal trial to show that the defendant was guilty of an independent crime not connected with or leading up to the crime for which he is on trial, except for the purpose of showing motive, interest or guilty knowledgfe, and this evidence was not proper or competent for that purpose. * * * It is never proper for the purpose of impeaching the character of a party or a witness to call witnesses to prove specific acts of dishonesty, immorality or crime.” Under the rulings made by the court, threats made by the defendant upon other occasions to other parties had no such connection with the crime alleged in the indictment as to render them admissible upon the issue before the court; nor can their reception be justified upon the assumption that they tended to impeach the character or standing of the defendant as a witness. Independent and specific acts and deeds of a party are not admissible for the purpose of impeaching a witness. The testimony thus improperly received may have, had a potential influence upon the jury. While the testimony offered for the prosecution tended quite strongly to support the allegations in the indictment, the testimony in behalf of the defendant contradicted the evidence of the prosecution and left a close question of fact to be considered by the jury. Under such circumstances we may not say that improper evidence was not prejudicial to the rights of the defendant. People v. Loftus, decided by this court in November, 1890, as appears in 58 Hun, 606 ; 34 St. Rep., 525 . The foregoing views lead to a reversal:

Conviction, order and judgment of the court of sessions of Broome county reversed, 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 Broome county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concur.