Argued September 30, 1874
Decided November 10, 1874
J.C. Cochrane for the plaintiff in error. Geo. Raines, district attorney, for the defendants in error.
The plaintiff in error was convicted in the Court of General Sessions of Monroe county, of the crime of receiving stolen goods, knowing them to have been stolen, and from the judgment of the Supreme Court affirming the conviction error is brought to this court. The objection that the prosecution having given evidence tending to prove one offence could not be permitted to prove another under the indictment, and as the foundation for a conviction, is untenable. The district attorney had announced, in his opening address to the jury, that he should seek to prove and ask a conviction for receiving five bars of pig-iron on the evening of the 10th of March, 1873, and the evidence concerning that alleged to have been stolen during the night of that day and found on the sidewalk in front of the store of the accused, on the morning of the eleventh of March, came out incidentally and without objection, in answer to an inquiry to the witness under examination, one of the owners of the property alleged to have been stolen, as to how his attention was drawn to the loss of pig-iron by his firm. It was not given as evidence in chief, and with a view to convict for receiving that iron, but as preliminary to proof of the search for and discovery of that alleged to have been stolen on a prior occasion and received by the accused on the preceding evening. No attempt was made then or at any subsequent stage of the trial to show that the iron found on the sidewalk had come to the possession of, or been received by the accused; on the contrary, the district attorney expressly declared that he did not claim that it ever was in his possession.
Passing for the present two or three exceptions to the admission of evidence, the residue of the fifty taken by the accused, upon the trial, can be classified under two general heads: First, exceptions to the admission of evidence of other transactions of like character to that under investigation; and, secondly, to the admission of evidence of the declarations of the accused as to his dealings in iron of the character and description of that for the receiving of which he was on trial, and the testimony of witnesses tending to prove the falsity of those declarations.
The question as to the admissibility of evidence coming within the first class of exceptions, was considered by this court in Coleman v. People ( 55 N.Y., 81) and Copperman v. People (MS. opinion of Chief Judge CHURCH). In both, the rule is recognized as well established, that in cases like the present, where guilty knowledge is an ingredient of the offence charged, the same may be proved as other facts are proved, by circumstantial evidence, and that other acts of a like character, although involving substantive crimes, may be given in evidence to prove the scienter. The principal limitation of the rule is, that the criminal act which is sought to be given in evidence, must be necessarily connected with that which is the subject of the prosecution, either from some connection of time and place, or as furnishing a clue to the motive on the part of the accused.
56 N.Y., 591.
In this case, the transactions in respect to which evidence was given were all intimately connected in point of time, place and circumstance with that for which the accused was indicted, so that they formed a continuous series of transactions, each throwing light upon the other, upon the question of knowledge, intent and motive. The evidence was of a stealing, by the same persons from whom the accused was charged with receiving the iron mentioned in the indictment, from the same owners and prosecutors, of iron of a similar description and like kind, but a short time before the transaction under investigation, and the purchase of the iron by the accused for a very inadequate price, and, if the evidence was believed, with actual knowledge that the iron was stolen. Within all the cases the evidence was competent. (1 Phil. Ev., by Edw., 767, 768, and note, 207; Roscoe's Cr. Ev., 92; Rex v. Davis, 6 C. P., 177; People v. Hopson, 1 Den., 574; Rex v. Ellis, 6 B. C., 145; 1 Greenl. Ev., § 53.)
The declarations of the accused and the other evidence reached by and included within the other class of exceptions were clearly admissible. The declarations of a party to a civil or criminal procedure, in respect to matters within his own knowledge, or of which he may be presumed to have knowledge, and relevant to the issue, are always competent against him. The character and extent of the business and dealings of the accused in pig-iron of the character and general appearance of that alleged to have been feloniously received by him, was material to the inquiry as among the circumstances bearing upon the question of scienter, and his integrity in the purchase and receipt of that alleged to have been stolen. If unsatisfactory, or fabricated and false statements were made by him in accounting for the possession of, and mode of storing and dealing with, the iron found in his possession; if false statements were made by him as to the person from, or for whom, or purposes for which he bought such iron, it would be a strong circumstance for the prosecution, as showing a consciousness of wrong, tending to show mala fides and a knowledge by the accused of the manner in which his patrons and clients acquired the property. (1 Phil. Ev., by Edw., 601; Reg. v. Mansfield, 1 C. M., 140.)
We have carefully examined the other exceptions, but do not find any that were well taken. The rulings of the court upon the admission and rejection of evidence of which the plaintiff in error now complains were right, and the questions raised by the objections and exceptions of the accused were properly disposed of. Had incompetent evidence been admitted by the court against the objection of the plaintiff in error, it would have been cause for a reversal of the conviction. We cannot concur in the views of the Supreme Court, as expressed in the prevailing opinion, that if any error was committed it did not prejudice the party on trial, and that the result would have been the same if the evidence objected to had been excluded. The rule undoubtedly is, that when a fact is conclusively proved, by competent evidence, so that the court can see that no prejudice or injury could possibly have resulted from the admission of incompetent evidence to prove the same fact, its admission will not be cause for interfering with the result or reversing a judgment, but the rule is to be cautiously applied, especially in criminal cases. ( Williams v. Fitch, 18 N.Y., 546; People v. White, 14 W.R., 111; Erben v. Lorillard, 19 N.Y., 299.) The true rule and the only rule that can be sustained upon principle is, that the intendment of law is, that an error in the admission of evidence is prejudicial to the party objecting, and will be ground for the reversal of the judgment unless the intendment is clearly repelled by the record. The error must be shown conclusively to be innoxious. ( Vandevoort v. Gould, 36 N.Y., 639; People v. Gonzales, 35 id., 49.) It is not enough that the court sitting in review of the judgment may be of the opinion that the result ought to, and probably would, have been the same if the objectionable evidence had been excluded, and especially ought not such a presumption avail to cure an error upon a criminal trial. In the case at bar the principal witnesses to establish the crime and prove guilty knowledge, and the circumstances from which the jury might infer a guilty knowledge, were the thieves by whom the iron was stolen. They were thoroughly impeached by their own testimony, and many of their statements were highly improbable as they are spread out and appear on the record. They were not entitled to credit except as they were corroborated by other credible testimony, and the circumstances of the case as proved to the satisfaction of the jury. In a case depending for its chief support upon evidence of this character, and upon circumstantial evidence, it is impossible to say that any of the evidence objected to may not have affected the result. But for the reason that the evidence objected to was technically competent and properly admissible, the conviction must be affirmed.