Opinion
Argued December 5, 1912
Decided December 31, 1912
John J. Hughes for appellant.
Francis A. Winslow, District Attorney ( Lee Parsons Davis of counsel), for respondent.
There is no occasion for a discussion of the facts in this case further than to say that the evidence presented an issue for the jury which was submitted to them fairly and which, we think, they disposed of correctly.
One error of law was committed by the learned trial judge in the admission of testimony, but we are satisfied that it did not affect the result and, therefore, it is our duty to disregard it. (Code Crim. Pro. § 542.) As it might occur in other cases, however, where it would prove seriously harmful, if passed over now without comment, we feel bound to call attention to it.
The defendant took the stand in his own behalf. On cross-examination he denied that he had ever served time in Trenton jail after a conviction in New Jersey or ever served a term of one year and twenty-five days' imprisonment for striking a man in the eye in that state; and he also denied that he had ever told Coroner Squire that he had been so convicted and imprisoned.
Coroner Squire was subsequently called as a witness for the prosecution in rebuttal and testified as follows:
"Q. Did the defendant tell you that he had spent one year and twenty-five days in jail near Trenton for striking a man in the eye?
"Mr. HUGHES: Objected to as leading and irrelevant, immaterial and incompetent.
"Objection overruled.
"Exception taken by Mr. Hughes.
"A. He did.
"By the Court:
"Q. Did he tell you that in English?
"A. Yes, sir, the same day."
It was not permissible to prove the defendant's conviction of crime in this way. In removing the disqualification of convicted persons as witnesses, the legislature prescribed the methods and the only methods by which a conviction can be proved. (See People v. McGloin, 91 N.Y. 241.) Section 832 of the Code of Civil Procedure provides as follows: "A person, who has been convicted of a crime or misdemeanor is notwithstanding a competent witness in a civil or criminal action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross examining him is not concluded, by his answer to such a question." Section 392 of the Code of Criminal Procedure declares that the rules of evidence in civil cases are applicable also to criminal cases; and section 2444 of the Penal Law provides: "A person heretofore or hereafter convicted of any crime is, notwithstanding, a competent witness, in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any proper question relevant to that inquiry and the party cross-examining is not concluded by the answer to such question."
These enactments which thus explicitly prescribe the record or the admission of the witness on cross-examination as the means whereby his conviction may be proved for the purpose of affecting his credibility impliedly prohibit the reception of any other or different proof. This point was not expressly brought to the attention of the learned trial judge in the case at bar when he made the ruling under consideration, the form of the objection being merely that the question put to Coroner Squire was "leading and irrelevant, immaterial and incompetent." If the reason why it was incompetent had been specified by counsel, we cannot doubt that the objection would have been sustained.
In view of the fact, however, that the defendant under cross-examination admitted that he had been convicted of assault three times and that upon two of the convictions he had served terms in the penitentiary, the erroneous reception of this testimony by Coroner Squire could not have had any appreciable influence upon the verdict.
No other question of law demands discussion.
The judgment of conviction should be affirmed.
CULLEN, Ch. J., HAIGHT, VANN, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment of conviction affirmed.