Opinion
April Term, 1903.
Lewis Stuyvesant Chanler, for the appellant.
Robert C. Taylor, for the respondent.
The first contention of the appellant is that the verdict was not warranted by the evidence. We think there was not only sufficient evidence to require the submission of the question of defendant's guilt to the jury, but that the verdict is amply sustained by the evidence. A careful examination and consideration of this record satisfies us that the guilt of the defendant was clearly established. He obtained the complainant's money by holding out an inducement of profitable investment in real estate. He did not invest it as authorized, but wrongfully misappropriated it.
The next assignment of error by counsel for the defendant relates to a statement of the assistant district attorney in opening the case to the jury, that the defendant had committed a similar crime at about the same time, and to evidence offered and received on that subject which was subsequently stricken out. The assistant district attorney, in opening the case, after stating the charge against the defendant for which he was on trial, said that a second indictment had been found against him for grand larceny in the second degree, consisting of a similar larceny for the same purpose; that the People would show that after the defendant obtained the money from Mrs. Emma Butler, he obtained $300 from Mrs. Hannah Butler, her mother-in-law, on like representations; that the People would show this for the purpose of showing motive; that it was one and the same scheme to defraud both parties; and that he brought the matter to the attention of the court in his opening "in order that, in opening the case, I may not transgress the bounds of propriety in mentioning the circumstance." Counsel for the defendant thereupon remarked, "upon its face it appears that these two crimes occurred eight days apart," and he could not understand the attitude of the district attorney in suggesting that "upon the trial of an indictment charging the commission of an offense upon the third of January he can offer evidence of a crime which the indictment itself charges was committed upon the 11th of January." The court directed the district attorney to proceed, which he did, and upon his commencing to state defendant's transactions with Mrs. Hannah Butler, counsel for the defendant objected, and upon the court's directing the district attorney to proceed, took an exception. The district attorney then stated, in substance, that he expected to show that shortly after the defendant obtained the money from the complainant he called upon Mrs. Hannah Butler, who had saved up $300 which she had in the savings bank, asked if she had any money, and upon being told that she had and where it was, said that it was a mistake to have it in a savings bank; that if she would let him take it and invest it in real estate she would do "a great deal better," and that upon the next interest day she drew it from the bank and delivered it to the defendant, but he did not inform the jury what the defendant did with this money. After the complaining witness was sworn counsel for the defendant requested the court to strike from the record "all that portion of the District Attorney's opening statement which referred to transactions with Mrs. Hannah Butler in regard to a three hundred dollar transaction," and asked the court to instruct the jury to disregard that matter, to which the court replied, "For the present I will deny the motion, Mr. Chanler," and counsel for the defendant excepted. Mrs. Hannah Butler was called as a witness for the People and, under defendant's objection and exception, was permitted to testify that in the early part of January the defendant came to her room and asked if she had any money, and on being told that she had a little, asked about how much, and was informed she had a couple of hundred dollars in the savings bank, whereupon he stated that the bank did not pay much interest and that if she would let him have it to invest in real estate with some of his own, he would give her a great deal more, and any time she wanted it he would bring it to the house, the same as if it was in the bank; that the told him she could not let him have it then, that she wanted to have the interest marked on it, and that this was the entire conversation. The court thereupon, of its own motion, directed that the testimony be stricken out and that the jury disregard it, but upon counsel for the defendant starting to object offered to let it remain in if he desired. A discussion then ensued between counsel and the courts in which the assistant district attorney contended that the evidence was competent, and the court suggested that it might be, if the first count charged a larceny by false representations, which it did not, and stated that at the proper time the People would have to elect whether they desired to stand upon the first or second count of the indictment. The assistant district attorney then said the People would elect to stand upon the second count, but the court replied that it was not necessary for them to make an election at that time. The court then remarked that this evidence was not admissible upon either count, but that if counsel for the defendant so desired, it would be permitted to remain in the case. Counsel for the defendant then said, "the defendant is making no motion or suggestion further than he has already made;" to which the court replied: "Then I will simply reiterate my ruling that the testimony be stricken from the record and the jury will disregard it as far as this witness is concerned." Counsel for the defendant did not renew his motion to have the opening remarks of the district attorney stricken from the record, and the record discloses nothing further concerning said remark or this evidence.
At the close of the evidence the People withdrew the first count of the indictment and elected to go to the jury on the counts charging misappropriation as a bailee or agent. The learned recorder, in submitting the case to the jury, clearly instructed them that the defendant came into possession of these bonds and their proceeds lawfully, and that the sole question for their determination was whether the People had satisfied them, by a preponderance of evidence beyond a reasonable doubt, that these bonds were delivered to the defendant under authority to sell and invest the proceeds in real estate, in disregard of which he appropriated them to his own use with intent to deprive Mrs. Butler of her property, and, if not, that it was their duty to acquit the defendant. It was, therefore, immaterial how or by what representations the defendant obtained possession of the bonds or their proceeds, and we think that this was made clear to the jury. The evidence being immaterial to the issue as finally clearly submitted to the jury, we think the error in admitting it was cured by striking it out and directing the jury to disregard it. ( People v. Wilson, 141 N.Y. 185, 191.) It is evident that the court, on reaching the conclusion that the evidence concerning the transactions with Mrs. Hannah Butler was inadmissible, would have directed the jury to disregard the remarks of the district attorney on that subject had the motion been renewed, and if counsel for the defendant deemed those remarks prejudicial, in view of the subsequent ruling of the court in striking out the evidence and in charging the jury, we think he should have again drawn the matter to the attention of the court.
The defendant, on being called as a witness in his own behalf, was examined at considerable length both in his direct, cross, redirect and recross examination, but the evidence upon some of the points upon which he was examined was left quite indefinite and conflicting. The court then, evidently for the purpose of having the facts shown more definitely and clearly, proceeded to question him at considerable length. The examination conducted by the attorneys covers about forty pages of the printed record, and that conducted by the court about nine. It is not claimed that the court opened up any new subject in this examination, or that the questions were put in a prejudicial form. It is contended, however, that this was an abuse of discretion on the part of the court in interrogating the witness at such length, and that it may have led the jury to infer that the court deemed the defendant guilty. The learned recorder repeatedly instructed the jury that they were the sole judges of the facts, and that the function of the court was merely to instruct them as to the law. While in this case we do not think the conduct of the judge in conducting the examination requires a new trial, it is not to be commended. It is often necessary, proper or advisable for a judge to interrogate a witness for the purpose of making the evidence clear upon a point upon which it has been left obscure or confused, or to bring out material facts apparently within the knowledge of the witness, and overlooked by counsel, but this may ordinarily be done by very few questions, and in the main the counsel should be left to conduct the examination. ( Bolte v. Third Ave. R.R. Co., 38 App. Div. 234.) The other points presented by the appellant have been examined, but require no special consideration.
It follows that the judgment should be affirmed.
VAN BRUNT, P.J., O'BRIEN and INGRAHAM, JJ., concurred; McLAUGHLIN, J., dissented.
Judgment affirmed.