#### People of the State of New York, Resp’t, v. Joseph Holfelder, Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed January,*1887.)

1. Criminal tbiaii — Evidence — Corroborative.

In a trial wherein defendant was convicted of robbery in the second degree, testimony was given on the part of the prosecution tending to show that the offence alleged in the indictment was committed in the city of B., near the corner of Broadway and M. street, on December 18th, 1884, between 1.30 and 3 o’clock a.m. The complainant E.had visited a saloon kept by one K. a little after midnight,remaining there till about 1.30 a.m., and defendant was shown to have been in the saloon and to have left it shortly after E. entered it, evidence having also been given by the prosecution tending to connect defendant with the commission of the offense, defendant attempted to rebut it by testimony tending to show that he reached his residence on A. street and went to bed shortly before 1 o’clock.

K. IT., a witness called by defendant, testified that she lived eight doors from his house, and that on the night in question a friend named S. had left her at her gate at 12.30 a.m. and went toward defendant’s house. *Held,*that this testimony was of importance only as it corroborated that of S. the next witness, that he parted with her between 12.30 and 1 o’clock a.m. as he judged, passed defendant’s house, saw him entering at his gate and spoke to him.

2. Same — a party is not allowed to contradict his own witness— A PARTY QUESTIONING BEYOND THE LIMITS OP CROSS-EXAMINATION MAKES THE WITNESS HIS OWN.

K. IT. on her cross-examination stated that she had talked with officers H. and F. and did not tell either of them that she saw defendant going to his house, go into the yard, go out of his yard, go down B. street about 1 o’clock, and return in about half an hour, and run into the alley, and that she got into her own house about two o’clock and looked at the clock. After defendant rested the prosecution called officer E. and asked him whether IC U. had told him the things before mentioned, to which defendant objected, and the objection being overruled took an exception. The witness answered that she did not say that time, but near 1 o’clock. *Held,*that this was an affirmative, substituting the time there mentioned for that given in the question. That it was improperly received, that the defense-having sought only to prove by K. IT. the hour at which S. left her, her cross-examination as to what she had stated of the subsequent movements of defendant was new matter, as to which the prosecution made her their own witness, and that it was not competent for them to contradict her. That evidence that she made contradictory statements as to when S. left her house was properly received, but beyond that, proof of her statements was improperly received.

3. Same — Presumption arising from silence or lack op denial by a PARTY AGAINST WHOSE INTEREST A STATEMENT IS MADE — MUST BE SHOWN TO HAVE HEARD IT.

The prosecution proved against the objection and exception of defendant a conversation had by officer ÍT. with defendant’s mother at her house about three o’clock of the morning in question. AVitness testified in substance that the mother said her son got home at two o’clock. N. testified that he thought defendant heard the statement of his mother. After the jury had deliberated several hours they sent a written communication to the judge inquiring what bearing the testimony of BT. should have in regard to what defendant’s mother said to him about the time when her son came home. The court in reply instructed the jury that if defendant did not hear what was said, the testimony was unimportant; but that if he did hear it, it would bear upon the question of his guilt or innocence, because if he heard the statement of his mother, and made no denial, it might be taken as an admission on his part that it was true. *Held,*that the correctness of the instruction in the abstract was not questioned, but that there was no evidence that *489if defendant heard the statement that he did not deny it, was silent, or how he received it. That the opinion of If was improperly admitted.

4. Same — Remarks upon testimony by trial judge — What held error.

After tlie foregoing instruction counsel differed as to the testimony of N. and the court told the jury that they must determine the evidence for themselves adding. “ The evidence of the other officer who swore that was my recollection is that he was very positive that defendant heard these declarations, but this is a question for you whether he did or not.” Upon a review of the testimony, *Hold,*that the remark was unwarranted by the testimony.

*Tracy 0.*Becker, for Appl’t; *Edward W. Hatch,*dist. atty., for Resp’t.

Smith, P. J.

Testimony was given on the part of the prosecution tending to show that the offense alleged in the indictment was committed in the city of Buffalo, between the hours of half-past one o’clock and three • o’clock in the morning of December 18th, 1884, on Broadway near the corner of Madison street. The complainant, Fleisner, had visited a saloon kept by one Kick, a little after midnight, remaining there till about half-past one, and the defendant was shown to have been in the saloon, and to have left it shortly after Fleisner entered it. Evidence having been given on the part of the prosecution tending to connect the defendant with the commission of the offense, the defendant attempted to rebut it by testimony tending to show that he reached his residence on Adams street and went to bed shortly before one o’clock.

Katie Ushold, a witness called by him, testified that she lived eight doors from Holfelder’s house, and that on the night in question a friend named Shuler had been out with her and left her at her gate at half-past twelve, A. M., and went towards Holfelder’s house. This testimony was important, only, as it corroborated Shuler, the next witness, who testified that he parted with Katie Ushold at her house between half-past twelve and one o’clock, as he judged; passed Holfelder’s house; saw Holfelder going into his gate and spoke to him. Katie Ushold, on her cross-examination, stated that she had talked with officers Nicken and Fernlacken and did not tell them or either of them that she saw Holfelder going to his house, go into the yard, go out of the yard, go down'Beckwith street'about one o’clock and return in about half an hour and run into the alley, and that she got into her own house at two o’clock and looked at the clock.

After the defendant rested, the prosecution called officer Fernlacken and put to him the following question : “ Did she,” Katie Ushold, “ tell' you she saw Holfelder run into his yard about half-past - twelve, or one o’clock, that she saw him go out and go down Beckwith street, and in about three-quarters of an hour she saw him run back into the alley ? ” The question was objected to on the ground, among others, that in respect to the matter to which it related, the prosecution made Katie *490Ushold their own witness and they cannot contradict her. The objection was overruled, and the defendant’s counsel excepted. The witness answered, “She did not say that time, she said near one o’clock.” We understand this to be an affirmative answer to the question, substituting “ near one o’clock ” for “ about half-past twelve or one o’clock,” and the reception'of it we think was error.

The only material fact which the defense proved or sought to prove by the witness Katie Ushold, was the hour at which Shuler left her, and its only materiality consisted in the circumstance that it tended, in connection Avith the testimony of Shuler,' to fix the hour when the latter saw the' defendant going into his gate. Her cross-examination as to what she had stated in regard to Holfelder’s subsequent movements was new matter, in regard to which the prosecution made her their own witness, and it was not. competent for them to contradict her. It was undoubtedly competent for them to give evidence tending to show, as they did by the witness Nicken, that she made a contradictory statement as to the hour when Shuler left her at her house, but beyond that, the proof of her statements was improperly received. *(People*v. *Cox,*21 Hun, 47; S. C. affd. 83, N. Y. 610).

The prosecuting attorney was permitted to prove, against the objection and exception of the defendant', a conversation had by officer Nicken with the defendant’s mother at- the house of the latter, about three o’clock on the morning in question. The witness testified in- substance that the mother said her son got home at two o’clock; that she knew that Avas the hour because she got out of bed and looked; that her son had promised her that he would be at home at twelve o’clock and go to church in the morning; and that she had given him a talking to for coming home so late. The testimony Avas received upon the theory, doubtless, that the son heard Avhat his mother said, and by his silence impliedly admitted it to be true. It is' questionable, in view of the testimony, Avhetlier' the defendant heard whát his mother said to the officer. Nicken testified that the defendant was in a room adjoining that in which the conversation Avas had, eight or ten feet away, as the witness judged, engaged in dressing himself; the door was open; the Avitness testified that he spoke in a pre,tty loud tone, but it did not appear in what tone the mother spoke. The witness in reply to a question put by the court as to whether he thought the defendant heard the talk, replied that he thought he did, but in reply to a question put by the defendant’s counsel said he would not swear that the defendant heard it. The testimony respecting the conversation with the mother seems to have had decided weight Avith the jury. After they had deliberated several hours, they sent a written communication to the judge inquiring what bearing the *491testimony of Nicken should, have in regard to what Mrs. Holfelder said to him about the time when her son came home. In reply, the court instructed the jury that if the defendant did not hear what was said the testimony was unimportant, but if lie did hear it, it would bear upon the question of his guilt or innocence, because, said the court, “ if he heard his mother state to the officers that it was two o’clock when he got in, and lie made no denial of it, it might be taken as an admission on his part that what his mother said was true.”

The correctness of that instruction, in the abstract, is not questioned. But two comments are to be made upon it, in view of the facts of this case. In the first place, there is no evidence whatever, that if the defendant heard the statement, he made no denial of it, or was silent. It does not appear how he received it. In the next place, the case shows that after the instruction above stated, was given, the counsel differed in open court as to the testimony of Nicken, and the. court then told the jury that they must determine the evidence for themselves and he made the following remark, “ The evidence of the other officer who swore u, in that was — my recollection is that he was very positive that die defendant heard these declarations ; but this is a question for you, whether he did or not.” So far as the case shows (and it purports to contain all the evidence), the remark respecting the testimony of any officer other than Nicken was inadvertently made. The only officers who were at the house with Nicken were Hammersmith and Christbaum. Christbaum testified that he did not go inside of the house and did not know what happened there. In regard to Hammersmith the ease does not give his testimony in detail, and states nothing more on this subject, than that he gave further testimony tending to corroborate Nicken as to what occurred at the defendant’s house. It does not appear that his testimony was any more positive than that of Nicken, who said he thought the defendant heard what was said, or that he testified to any fact on which such opinion could be based, in addition to the facts stated by Nicken. The remark in question, was therefore unwarranted by the testimony, and probably had weight with the jury, upon what they seem to have regarded as the turning point in the case. Indeed, it is not too much to say, in view of what occurred after the jury first retired, that the verdict was produced by the remark of the judge above referred to, and the opinion expressed by the witness Nicken that the defendant heard the conversation with his mother. The opinion, we think, was not proper evidence. The question whether the defendant heard was not one to be determined by the testimony of experts. *Manke*v. *The*People, 17 Hun, 410; S. C. affd. 78 N. Y. 611. Although no exception was taken to this item of testimony or to the remark of the court above referred to, yet as it is impossible to say that *492they did not produce the verdict, we think it a case where justice requires a new trial. Code of Civ. Proc, §. 527, as amended by ch. 360, L. 1882.

The conviction should be reversed and a new trial ordered in the court of Sessions of Erie county to which court the proceedings should be remitted.

All concur.

So ordered.