In People v. Wolf (183 N.Y. 464) Judge VANN said: "An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge.Summary of this case from People v. Van Arsdale
Argued December 6, 1905
Decided January 23, 1906
Frederick B. House, Maurice Meyer and Edward Weiss for appellant.
William Travers Jerome, District Attorney ( Robert C. Taylor for counsel), for respondent.
An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge. However strong the evidence against the defendant may be, if she did not have a fair trial, as shown by the rulings of the court subject to proper objections and exceptions, the judgment of conviction should be reversed and a new trial ordered so that she may be tried according to law. We have repeatedly laid down the rule governing prosecuting officers in addressing the jury and to govern trial judges also in their duty relating to the subject. We have repeatedly admonished both, the former at times with severity and the latter more mildly, not to depart from that rule, but our admonitions have not always been regarded, although they were followed by a reversal of the judgment involved, founded solely on the improper remarks of the prosecuting officer and the failure of the trial judge to do his duty in reference thereto. ( People v. Mull, 167 N.Y. 247; People v. Fielding, 158 N.Y. 542.)
A fair trial is a legal trial, or one conducted in all material things in substantial conformity to law. The defendant did not have a fair trial, for the trial assistant, who did not argue the appeal before us, in his opening address to the jury stated ominous and startling facts which he should have known he could not prove. The trial judge allowed and sanctioned continuous departures from the law by the assistant district attorney, although he should have known that it was his duty to prevent them, even of his own motion without suggestion from the defendant's counsel. It was his duty not only to warn the district attorney to desist, but also, if he continued, to rebuke him and punish him for contempt if necessary to prevent further infraction of the law.
The general rule is that in opening a case no fact should be stated unless it is material and competent and, hence, proper to be proved, subject, however, to reasonable latitude where the law upon the subject is not so elementary that every lawyer should know it. Crimes, not charged in the indictment, committed upon the person of the complaining witness by parties other than the defendant who were neither indicted with her nor connected with her in any way so far as those crimes were concerned, are not material or competent for any purpose. They cannot be proved and they should not be stated, for they tend to arouse sympathy for the complainant and prejudice against the defendant not arising out of the evidence. Of what use is the rule that jurors must not listen to conversations out of court in relation to the case, or read newspapers containing an account of the transactions involved, if the district attorney, with all the influence of his official position, is permitted to make statements of facts to them in court which it is the very object of rules of evidence to exclude from their consideration? Neither the district attorney nor the learned trial judge, in view of the responsible positions occupied by them, can consistently claim he did not know that the People in prosecuting the defendant for abduction could not prove that Robinson and Altman had previously ravished the complainant. The defendant was not indicted for rape, or seduction, or for a conspiracy to commit either of those crimes and no one was indicted with her. So far as the district attorney stated or as subsequently appeared from the evidence, the defendant never heard of the complainant until after all these wrongs had been committed upon her. No claim was made in the opening address of concert of action in this regard, or that the defendant ever knew Robinson, or had heard of his atrocious conduct, or that she knew or had heard of the outrages committed by Altman and Hirschkovitz before the girl was taken to her house. She did not know Altman, as he testified, when called by the People, until May 17, 1904, the date of the alleged abduction. He had never been to her house before that day. Indeed, the district attorney now claims that the defendant could not have been injured even by proof of the misdeeds of these men, because they were perpetrated before the crime alleged in the indictment, and tended to relieve her of the odium of abducting a pure girl, a claim which we do not care to notice, except for the admission it implies. There was no connection shown or claimed at the trial between the defendant and these men or any one of them, until after they had done their worst to the unfortunate complainant.
The assistant district attorney should have known that he could not prove that Hirschkovitz and his wife, while shielding the complainant under their roof for a week, were engaged in breaking down what remained of the moral structure of the child, because the defendant had nothing to do with it and knew nothing about it. No legal responsibility rested upon her for that act.
But, assuming that all this did not constitute legal error owing to the charity which may be indulged in on account of a mistaken view on the part of the prosecuting officer as to the competency of the evidence and on account of his belief that he might be able to connect the defendant with these facts, it is clear that on no possible theory could he prove that Altman and Hirschkovitz had been convicted, and, hence, he had no right to tell the jury that they had been or to say to them in immediate connection with that statement that "now comes the last act when twelve men are asked to pass upon the guilt or innocence of the woman who received the fruit of the depravity of the pimp and the procurer." The court did not cure the error by instructing the jury to disregard the statement, for immediately thereafter the district attorney said he wished to prove the fact in order to show why he did not produce Hirschkovitz as a witness and thereupon the court remarked: "You may show this at the proper time. I do not now hold that you may not show it, but at this time the jury are instructed to disregard it." The instruction to disregard should not have been halting and doubtful but absolute and final. If Altman could be produced, as he was produced by the People during the trial and as the district attorney assured the jury he would be if they so desired, why not Hirschkovitz? The defendant could not produce him, for he had been convicted of a felony, but the People could. It is now, and for nearly a century has been, the law that a writ of habeas corpus ad testificandum cannot be issued to bring up a prisoner confined under sentence for a felony, "except where the application is made, in behalf of the People, to bring him up as a witness on the trial of an indictment." (Code Civ. Pro. §§ 2008, 2011; 2 R.S. [1st ed.] 559.) The suggestion that the statement was made to account for the non-production of Hirschkovitz seems to us frivolous, in view of the statutes cited and the fact that neither party was called on to produce as a witness one so situated that he could not be adequately punished if he refused to testify and when no presumption could arise against either party for not calling him. Yet upon the trial the district attorney offered in evidence the record showing the conviction of Hirschkovitz, stating that his only purpose was to show that Hirschkovitz was within the call of the defendant. The objection of the defendant thereto was sustained without comment and the error in the opening thus demonstrated and emphasized. The offer of this record with a statement of what it was, in the hearing of the jury, is like "the practice of asking a question that counsel must be assumed to know cannot be answered" which we recently condemned as "highly reprehensible." ( Cosselmon v. Dunfee, 172 N.Y. 507.)
Nor were these errors cured by the instructions of the trial judge in his charge, because they were too general and too late to make it reasonably certain that the unwarranted statements did not affect the result. While in most cases it is within the power of the court to counteract the effect of rash remarks, "either by prompt rebuke or by instructing the jury to disregard them, or better, by both methods," the instructions should be so specific that the jury cannot fail to understand their duty with absolute certainty. ( People v. Mull, 167 N.Y. 247, 255.) In this case, as in the case cited, "the remarks of counsel passed without rebuke," and substantially without dissent, as is apparent when the whole record is read together. It is true that the district attorney was not allowed to prove his prejudicial assertions, but he told the jury he would prove them, and although the defendant objected, the court disregarded the objection and thus sanctioned the statement. Even then, if the court had carefully and specifically gone over the several statements and had told the jury clearly and emphatically that it was their duty to pay no attention to them, we are not prepared to say that the error would not have been cured. No such course was taken, however, and the bare instruction, made several days after the statement, to "set aside whatever impressions may have been made upon you by any statements either of the District Attorney or of counsel for the defense that were not borne out by the evidence," was clearly insufficient.
The only excuse for the injustice, and we think it has as much force in this case as it can have in any, is that the defendant is apparently guilty of a horrible and detestable crime. But why she should be tried at all unless she is tried fairly and in accordance with law? If her guilt is so clear, why should unwarranted means be used to secure a conviction? Juries do not halt over their duty in such cases, but are swift to convict when the evidence permits. In this case above all others it was unnecessary to go beyond the law, and indeed it can never be necessary in any case. Why should court and counsel violate the law in order to enforce it? What a pernicious example is presented when such officers, intrusted with the most important duties, in attempting to panish the guilty, are themselves guilty of departing from the law. Charity cannot extend its presumption to shield either in this case without also presuming that both were ignorant of the law. It may be that this warning will be disregarded as others have been, but it will be well for district attorneys and trial judges to remember that errors, such as are now complained of, if raised, as they were in this case, by sufficient objections and exceptions, will, upon appeal to this court, result in the reversal of the judgment of conviction. In no other way can the command of the law be observed and the rights of innocent persons charged with crime be adequately protected. It is not to shield the guilty but to protect the innocent that courts are steadfast in upholding rules, in force for generations, by which it may be lawfully determined who are guilty.
While there is a difference of opinion in relation to the subject thus far discussed, we all agree that the criminal information against the defendant and others was incompetent evidence. It was hearsay as to the defendant, for no attempt was made to comply with section eight of the Code of Criminal Procedure. She never had a hearing before the magistrate with the right to cross-examine the affiants, because the indictment came too soon. The effect was not only to show that the complainant, her foster father, who was the main reliance of the prosecution upon the question of age, and two other witnesses told the same story right after the alleged occurrence that they told upon the trial, but it also tended to further arouse prejudice and sympathy, which the law is careful to exclude from all trials, and especially from those involving liberty or life. ( People v. Davey, 179 N.Y. 345, 348.) Whether the complainant was under the age of eighteen at the date of her alleged abduction was a question of fact, upon which the jury could have found either way. The self-serving declarations appearing in the affidavits of her father and herself that she was but fifteen and would not be sixteen until September, 1904, did not constitute legal corroboration and were neither competent for that purpose ( Connolly v. Brooklyn Heights R.R. Co., 179 N.Y. 7); nor as part of the record, "the same as if they were offering the indictment," as the trial judge declared in admitting them. The information was an accusation but not like the indictment, and an accusation neither proves itself nor helps prove another accusation. We agree with the dissenting justices below that "the record of the proceedings before the police magistrate was not a part of the record of the trial and had nothing to do with it, nor was it in effect the same as an indictment." The evidence was incompetent for any purpose, and the harrowing details of injuries done the complainant by persons unknown to the defendant at the time, but who soon became connected with her, were well calculated to arouse prejudice against her.
It is, however, claimed that the record does not show that these affidavits were read to the jury. What were they put in for then? The district attorney in offering them said that when summing up he wanted to comment on one or two facts shown thereby, but he could not properly comment upon facts thus shown unless they were in evidence. As the contrary does not expressly appear, the contents of the affidavits are presumed to have come to the knowledge of the jury, because they were offered, received under objection, marked as an exhibit and are printed in extenso in the appeal book. If they were not actually read to the jury, or commented upon before them, it was incumbent upon the district attorney to have the case so settled as to show that fact, for the evidence went in on his offer and against the objection of the defendant.
We close our review by repeating the apt language of Judge WERNER in a recent case, although we regard the errors in the case before us as substantial, rather than technical: "It has come to be one of the accepted maxims of our jurisprudence that appellate courts will not be astute to find mere technical errors upon which to reverse judgments. There are cases, however, in which apparently technical errors may be so prejudicial as to produce the gravest injustice. This may be particularly true of a case in which a defendant, accused of an abhorrent and detestable crime, finds himself confronted at the very threshold of the court room, with that subtle, pervasive and almost ineradicable prejudice which the bare charge of such a crime may engender against him, in the minds of those who are to pass upon his guilt or innocence. This lurking possibility may become almost a probability when the charge is one which is calculated to arouse the parent to the dangers which beset his children in their necessary daily intercourse with those outside of the family circle. In such cases reason needs to be safeguarded from prejudice by everything that caution and justice can suggest, and courts should be firm and explicit in impressing upon district attorneys the necessity for strict adherence to rules of evidence and propriety of conduct so that jurors may, as far as possible, be unbiased and impartial." ( People v. Davey, 179 N.Y. 345, 347.)
The judgment of conviction should be reversed and a new trial ordered.
I concur for reversal of the judgment herein solely upon the ground that the court erroneously received in evidence on the offer of the district attorney, the affidavits, filed before the magistrate, giving the criminal information against the defendant upon which the warrant was issued.
It may be that the district attorney of New York and his assistants deserve the severe chastisement given in the opinion of this court, but I entertain a different view and wish to expressly dissent from that portion of the opinion. I had always supposed that it was not only the privilege but the duty of the district attorney, upon the trial of a person charged with crime, to make a statement to the jury of the facts which he intends to prove, and that reversible error could not be founded upon such statement, even though he may be disappointed in the evidence that he expected to produce or had it ruled out by the court as incompetent. Based upon what has been understood to be the ruling of this court, attorneys in defending persons charged with crime have in many instances adopted the practice of interrupting the district attorney in his closing argument to the jury, charging unfairness, impropriety and incorrectness of nearly every statement that he may make, and require a ruling of the court thereon, thereby practically preventing him from being able to present a logical and connected argument in support of a conviction. It is now proposed to go a step further and place him under still further restrictions. He is required to state the facts which he expects to prove, but in stating those facts he is to be met with objections as to the competency and materiality of the evidence, and that is to be ruled upon during his opening. In other words, the case is to be tried, so far as the admissibility of evidence is concerned, during the opening statement of the district attorney, thus preventing him from giving to the jury a connected chain of events upon which he may rely for a conviction. The time has come when in a criminal trial the defendant's counsel insists that every word uttered by the district attorney shall be taken by the official stenographer and made a part of the record for the purpose of catching some expression that may escape his lips, which to the ears of this court may sound inappropriate or unfair, and thus afford us an opportunity to swing the whip and give him a lecture. Such lectures have already been given in a number of the opinions written during recent years by the judges of this court, and still we have been careful to refrain from reproving counsel defending criminal actions for indulging in similar expressions or of imposing upon them like restrictions in conducting their defense; and yet the attempt of counsel defending to shift the trial from his own client to the district attorney, and thereby create an impression in the minds of the jurors that the district attorney is unfair and that his client is being persecuted, has been often indulged in and too often has been successful. I think we have gone far enough, if not too far, and I am opposed to imposing upon the district attorney the restrictions now proposed. I do not think that we should surround the prosecution of criminal trials with so many technical questions, as to make it practically impossible to avoid trivial errors and to convict a guilty person where he is fortunate enough to be defended by a bright attorney who is willing to interpose technical questions.
The defendant was indicted for the crime of abducting a young girl under the age of eighteen years for the purpose of prostitution. This girl was to be the chief witness for the prosecution, and much depended upon her credibility. The district attorney, therefore, in stating the facts that he expected to prove, gave a brief history of her from the time of her birth down to the time of her abduction. This included the date of her birth, age, parentage, and the manner in which she had gained her livelihood. He stated that she was not pure and innocent at the time of her abduction, that she had had intercourse with one Robinson, and had lived with one Hirschkovitz, and night after night had had connection with one Altman. It is now contended that this statement was improper; that the district attorney ought to have known that the evidence was incompetent, and that because of this statement a new trial should be granted. I do not think so. It has always been recognized as proper to give a brief history of a witness sworn upon a trial, in order that the jurors may be advised to some extent with reference to the character and disposition of the person, to the end that they may determine the amount of credit that they should give to the testimony. It is true that the previous chastity of the girl abducted is not an essential element of the crime if she be under the age of eighteen, and yet it becomes a proper and important subject of inquiry upon the gravity of the crime and the extent of punishment that should be inflicted. If, therefore, the district attorney had rested his case upon the showing that she was abducted under the age of eighteen, leaving the inference that she was then pure and undefiled, the defendant would undoubtedly have produced the evidence showing her previous acts of unchastity in mitigation of the charge and then make the claim that the district attorney had attempted to deceive the jurors by withholding the evidence of her previous character. The district attorney was not required to subject himself to such an accusation. He had the right to show the abduction and then by concession or evidence show what there was of her bad character in order that the jurors may be possessed of all the facts.
I do not think that the previous conviction of Hirschkovitz and Altman was material upon the issues involved in this trial. But inasmuch as the defendant knew nothing of the offense committed by these men, it is not apparent to me how the defendant could have been prejudiced by the statement that they had been convicted or had pleaded guilty. We should assume that the jurors were possessed of ordinary understanding and intelligence, and certainly they could not have been prejudiced against the defendant by an independent transaction between other persons about which she knew nothing. But it is said that the district attorney ought to have known that the evidence of the conviction of these men was not proper. Assuming this to be so. Errors, however, are not predicated upon what the district attorney knows or does not know. The trial judge is the officer who is responsible for the conduct of the trial, and it is his rulings that are brought up for review and upon which errors of law are based. After the opening of the district attorney the defendant's counsel asked the court to discharge the defendant upon the ground of a mistrial for the reason that the district attorney had made the statement alluded to. Of course it was the duty of the court to deny the motion, as he did, but in denying the motion he expressly stated, "I instruct the jury at this time to disregard any statement that was made by the district attorney as to the conviction of Hirschkovitz and the plea of guilty by Altman." And, again, in beginning his charge he stated to the jury as follows: "In the consideration of this case you must set aside whatever impressions may have been made upon you by any statements either of the district attorney or of counsel for the defense that were not borne out by the evidence in the case, and also remove whatever impressions may have been created by any testimony that was offered by either side and rejected by the court, or any testimony that was attempted to be offered or any testimony that was stricken out by the court. In other words, gentlemen of the jury, you should determine this case by the evidence admitted by the court and upon such evidence alone." It appears to me that the trial judge fairly and properly presented this case to the jury, so far as this branch of the case is concerned, and that he fully performed his duty in this regard. But it is now claimed that he should have done more and it is suggested that he might have committed the district attorney for contempt of court, but this would have deprived the People of the officers selected by them to prosecute the trial and might have resulted in the discharge of the defendant. While the trial court may be vested with such power, certainly it should be exercised only in extraordinary cases, and I doubt if there is a single member of this court who would have approved of such action by the trial judge had he resorted to such punishment. In his opening remarks the district attorney referred to Altman and called him a vile name. This may have been coarse and vulgar. I think it was in bad taste, but it did the defendant no harm, it would rather tend to prejudice the jurors against the officer himself. It certainly does not present an error of law which calls for a reversal. For these reasons I confine my vote for reversal to the ground first stated.
CULLEN, Ch. J., O'BRIEN, BARTLETT and WERNER, JJ., concur with VANN, J.; GRAY, J., concurs with HAIGHT, J., for reversal solely upon the ground of the error committed by the trial court in admitting in evidence the record of the criminal information filed with the Magistrate's Court.
Judgment of conviction reversed, etc.