#### The People of the State of New York, Respondent, *v.*Alfred Nelson, Appellant.

Third Department,

June 28, 1911.

Crime — manslaughter — evidence — former assault by defendant — • charge.

If the defendant in a criminal action offers himself as a witness it may he shown upon cross-examination for the purpose of affecting his credibility that he has been convicted of a crime or has committed one.

The extent of the cross-examination on this point, however, always rests in the.discretion of the court, and the court in exercising its discretion . should remember that the defendant is not ordinarily a voluntary witness and should hold the examination within proper bounds.

Evidence, on the trial of an indictment for manslaughter, tost degree, examined, and *held,*that in view of the fact that the case against the defendant was so close, the court exceeded a proper discretion in permitting an extended cross-examination of the defendant in regard to the details of ah alleged assault made by-him upon a third party three years before the crime charged in the indictment.

Where in such a case it appears that the deceased told the doctor in the. defendant’s presence that the latter had hit him and that defendant made no comment, but there is also evidence to show that at the time the defendant was dazed and did not realize that the deceased was badly • hurt, it is error to refuse to charge that the jury should take into consideration the condition of the defendant and the extent to which he realized and understood the statement to the doctor, before his failure to reply could be considered as an admission.

Smith, P. Jl, and Betts, J., dissented, the latter with opinion.

Appeal by the defendant, Alfred Nelson, from a judgment of the County Court of Albany county, rendered against the defendant on the 2d day of March, 1911, convicting him of the crime of manslaughter in the first degree upon which he was sentenced to imprisonment at Dannemorá for not less than ten years or more than nineteen years and six months.

*Mahany & Kingston [Rowland B. Mahany*of counsel], for the appellant. '

*Rollin B. Banford, District Attorney,*for the respondent.

Kellogg, J.:

The defendant is convicted of the crime of manslaughter in the first degree m causing the death of William Carl Ellis. *681They were friends and companions; Ellis was the larger and stronger man of the two. The evidence shows that Ellis was at times irritable and quarrelsome; the' defendant ordinarily peaceable and quiet. The defendant was the superintendent of an apartment house owned by the father of Ellis and Ellis was employed about the apartment under the superintendent. In the evening they were seen talking upon the street and approaching the apartment. They entered the room occupied by the defendant and closed the door behind them, which was held shut by a spring lock. An altercation and scuffle was heard in the room. Within a few minutes after they entered the room the defendant came. to the door dressed only in his pajamas and sent for Ellis’ father, then for a doctor. Upon the arrival of the. doctor, Ellis was found in a wounded condition but neither he nor the defendant actually realized his condition. He was exhausted and told the doctor that the defendant had hit him on the head, and later he said that they had a scuffle and he had been hit on the head. The defendant was in a dazed condition and apparently did not realize the extent of Ellis’ injury or the real- situation. He stated that nothing had happened, *“we*ruffled around the room together and by and by we both went down.” Ellis was found with several wounds upon his person and died from a stab wound in the abdomen caused with an ice pick and the bloody ice pick was found upon a lounge near by.

The circumstances narrated do not show that the defendant was criminally liable for the death of Ellis. When charged with a crime, he is not required to explain the situation or account for Ellis’ condition. The People must show by independent facts that the defendant criminally caused the death. Three other circumstances are alleged to have a bearing upon the defendant’s guilt. It is said that after Ellis had abandoned hope' of life he informed his mother that the defendant had hit him on the head with an ice pick, and when she discovered and pointed out to him the wound in the abdomen, he then said, “Oh, yes, 3⁄8 3⁄8 3⁄8 Nelson stabbed me.” He also stated to Dr. Lewi, under similar circumstances, that they were scuffling around and the defendant hit' him on the head.

*682This evidence does not clearly indicate any criminal act by the. defendant as, in a sense, Ellis’ death was caused by the defendant and he was stabbed by the defendant. The real question is whether the stabbing and the injury which he suffered at the hands of the defendant was a criminal act or was done by the defendant in proper self-defense or in a manner not criminal. . ,

The defendant was called as a witness in his own behalf. His story was not unreasonable or improbable and is in harmony with many of the conceded facts. So far as his evidence relates to the alleged crime, it is decidedly favorable to himself- and raised in nó respect an inference that his acts were criminal. His version, briefly stated, is that after they entered the office of the apartment, a controversy arose, hard words followed and he ordered Ellis out of the office. He went saying, “HI fix you.” Defendant took off his clothing, put on his pajamas, extinguished the light in the office and sat on- his couch in the adjoining sleeping room. When Ellis entered and the defendant saw his hand coming down upon him with the ice pick in it, he threw his arms around Ellis and they grappled, they struggled toward -the door and tripped over something and fell with their heads against the radiator. He was somewhat dazed. • The struggle continued. When he got up he did not know that Ellis was injured and when told by him that he was hurt he gave the alarm. Both had been drinking. Somewhere about' ten minutes elapsed between the time they entered the room and the giving of the alarm.

' Upon cross-examination the district attorney asked him twenty-two questions relating -to an alleged assault by him upon one’Wright three years before. The jury might well infer that under circumstances very similar to those in question, when he and Wright were in an office of which the defendant was superintendent, -they had a fight with the result that the defendant was taken to the hospital and the' defendant did not know whether he hit Wright over the head with a soda water bottle or not, or threatened his life and gives quite unsatisfactory answers to several questions upon the subject. The jury might well infer that the Wright matter in many of its details was very similar to the one in question and that-the *683defendant was avoiding the real truth with reference to it and giving the most favorable view of it to himself. The defendant objected to the line of examination, that it was prejudicial and raised inferences which could not he met, to which the court replied that it could not prevent the inferences, that the People had the right to show that he had committed the crime upon Wright.

Ordinarily in a ■ criminal action it cannot he proved as an independent circumstance that the defendant has committed another crime, although, if he offers himself as a witness, upon cross-examination for the purpose of affecting his credit, it may he shown that he has been convicted of crime or that he has committed a crime. The extent of this examination, however, always rests in the sound discretion of the court, and in exercising the discretion the court should remember that the defendant is not ordinarily in these cases a voluntary witness hut is coerced to submit to the examination, and the examination should he held within proper hounds. *(People*v. *Crapo,*16 N. Y. 288.) If he has committed a crime or an assault, the question should he asked and the answer obtained, hut when by an extended examination it is sought to call out the commission of a crime so similar in many respects to the one in issue, the court is called upon to see that the examination is held within proper limits.

In *People*v. *Dorthy (156*N. Y. 231) it was held proper Upon cross-examination to ■ show that the defendant had been disbarred as an attorney, hut' a judgment against him was reversed because all the facts and circumstances leading up to the disbarment were shown, the court saying the fact of disbarment was enough.

The case against the defendant is so close that I am satisfied the court exceeded a reasonable discretion in permitting the extended examination of the defendant with reference to the Wright matter. While offered for the alleged purpose of affecting his credit, it evidently had a tendency to satisfy the jury that the defendant whs probably guilty here on account of his conduct in that matter. The court limited ^somewhat in its charge the effect to be given to this evidence, but I think it is quite apparent that the harm had already been done and ■ *684that this evidence prevented the defendant’s case from having the impartial and fair consideration to which he was entitled.

The defendant’s counsel requested the court to charge *“*that if on consideration of the fact that Nelson was dazed at the time of the arrival of Dr. Brown, by a fall or otherwise, and did not at that time realize that Ellis was seriously injured, his failure to reply to Ellis’ remark should not he prejudicial of the defendant’s case,” to which the court replied: “I refuse to so charge and'leave that as a question of fact for the jury to determine from all the evidence.”

The witnesses' say that the defendant was in a dazed condition, and the testimony of the other witnesses present after the doctor was admitted to the room shows that he did not realize the situation or understand what had been done or the results following. The request to charge was somewhat confused, hut by it the defendant evidently intended to ask the court to inform the jury that a failure to reply to the statement made in the presence of the defendant, when he was - in a dazed condition and did not realize the situation, was not in itself evidence against him. In other words, that they must take into consideration the condition of the defendant, the extent-to which he realized and understood the statement before his failure to reply to it could he considered an admission.

I think the request was sufficient to call upon the court to explain to the jury that whether this statement and the failure to answer was or was not an implied admission of the defendant depended entirely upon to what extent he understood the statement and .to what extent he realized the situation as it then was. I think the jury did not have the instruction upon this question which it was fairly entitled to and which the request to charge fairly foreshadowed.

We need not determine now whether the othér circumstances referred to herein taking place after the doctor was admitted to the room and also upon the trial have sufficient. weight to justify a conviction of the defendant for criminally causing the death. It is apparent that the People’s case is not strong; that ,there is so much doubt about the guilt of the defendant that a new trial should be had, so that if his- guilt is to be established it may be upon the case itself and not by *685other considerations. It is also important, if the alleged statement and the failure to answer is to be charged as an admission, that the- jury should be fully informed under what circumstances it may be treated as an admission and when it may not be so treated. . .

In a case where there is so great doubt about the defendant’s guilt and the punishment is so severe, these considerations make proper a new trial. The judgment and conviction should, therefore, be reversed and a new trial granted.

All concurred, except Smith, P. J., and Betts, J., dissenting, the latter in an opinion.

Betts, J.

(dissenting):

The facts in the case are substantially stated in the opinion of Mr. Justice Kellogg. Nelson and Ellis stood in front of-the apartment house for some time talking when they went into the office and its connecting rooms, which were also the living rooms of the defendant. The defendant was heard to apply to Ellis an opprobrious epithet, to which Ellis made no reply. The door locked automatically. Through that door Ellis was never seen to come out again or return until he was carried out after having received a-mortal wound. This is so, although the entrance to that room was from the hall of a large apartment house, at an hour of the day at which it was likely to be frequented, and during all this time servants employed at this house were in the hall. Upon Nelson obtaining a physician to examine Ellis it was found that he had five wounds upon his person, two upon his head, two upon his back and one, the fatal one, in his abdomen.

Ellis was the stronger of the two. Nelson would have us think that it was necessary .for the more vigorous man to procure an ice pick to attack Nelson as a result of a quarrel. How a man with an ice pick would inflict on himself five wounds is unexplainable. Naturally one would think that between two unarmed men, if resort was had to other weapons than those nature had provided for defense or aggression, it would be the weaker man who would thus resort, and. Ellis was not the weaker. The wounds upon the head and back were not severe which might easily be so with a strong and unarmed *686person contending against a weaker one armed with an ice pick. The glancing nature of the blows might easily cause only a small wound to be inflicted.

There is nothing surrounding the facts detailed and the natural inference that a human mind would draw from a quarrel and fight such ás took place in this secluded room that' would lend any semblance of verity to the tale narrated by Nelson to save himself from a term of imprisonment. The sounds of conflict, the-huddling together behind the elevator of the colored employees listening to those sounds betokening that a fierce conflict was raging in that room with only two witnesses, and two participants, the evident desire to keep people from coming into, the room, the lack of frankness to and concealment from the physician, the answers to the questions propounded by the district attorney to Nelson, his halting, hesitant, evasive answers on his cross-examination, his insistence that it was a hand that was about to strike with an ice pick and that he assumed that that hand was the hand of Ellis and all his answers must convince any person as it convinced the jury that the entire story is fabricated for the occasion.

In the opinion of Mr. Justice Kellogg the judgment is proposed to be reversed for the reason that the defendant was asked upon cross-examination questions relating to events, actual or alleged, occurring in his life prior to this time aside - from the happenings upon that night, and certain of which questions indicated an investigation of other crimes committed by the defendant. . There were numerous of these question's. and objection was made to three of them, two of them were overruled and to one of which an exception was - taken. The third one was this:' ££Q. Did you have some trouble with Wright ? Mr. Mahany: I object to this line of questioning for this reason — It is collateral, can’t -have any real bearing on the occurrence that took place October 24th, incompetent and improper. In reality I don’t object to it because the District Attorney is bound by the answers of the witness. (Overruled. Exception.) ”

It will be seen that the defendant’s attorney did not insist upon this objection, stating that in reality he did not object to ■ 3⁄8 yet upon a formal ruling by the court he took an exception.

*687The question has been before the courts many times.

“ When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend —

> *c(*^ To test his accuracy, veracity, or credibility; or

> “(2) To shake his credit, by injuring his character.

> “Witnesses have been compelled 'to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was ’disgraceful to the witness; but it is submitted that the Court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not in the opinion of the Court affect the credibility of the wit-' ness as to the matter to which he is required to testify.” (Chase’s Stephen’s Dig. Ev. [2d ed.] art. 129, p. 320.)

> “Upon the trial the prisoner was a witness .in his own behalf), and it is now complained that the counsel for the people, upon cross-examination, was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed. This complaint is not well-founded. When a prisoner offers himself as á witness, in his own behalf, he is subject to the same rules upon cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impairing his credibility. Such questions may tend to- show that he has before been guilty of the same crime as that for which he is upon trial; but they are not on that account incompetent. When he offers himself as a witness, and séeks to take the benefit of the statute which authorizes him to testify in his own behalf, he takes the hazard of such questions. He must determine, before he offers himself, whether his examination will benefit or injure him. The extent to which such an examination may go to test the witnesses’ credibility is largely in the discretion of the trial court. *(Allen*v. *Bodine,*6 Barb. 383; *Fralich*v. *People,*65 id. 48; *Real*v. *People,*42 N. Y. 270.)” *(People v. Casey,*72 N. Y. 393, 398.)

In *People ex rel. Phelps*v. *Oyer & Terminer of County of New York*(83 N. Y. 436, 460) Genet, the defendant, was sworn as a witness in his own behalf and .objection *688was made to the range of cross-examination allowed to the prosecution,' which was searching and severe, and extended over a wide area of subjects and circumstances, and was claimed to have wandered far away from the precise issues involved, and to have seriously and unjustly prejudiced the case of the defendant Genet. The court said: “Our control over such an alleged error is not absolute. As a general rule the range and extent of such- an examination is within the discretion of the trial judge, subject, however tp the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. *(The People*v. *Brown,*72 N. Y. 571; *Ryan*v. *The People,*79 id. 593; *The People*v. *Crapo,*76 id. 290.) If this limitation is not disregarded we can only interfere where there has been an abuse of discretion. *(Great Western Turnpike Co.*v. *Loomis,*32 N. Y. 127; *La Beau*v. *The People,*34 id. 230; *People*v. *Casey,*72 id. 393.) Our only inquiry, therefore, in the present case is, whether the cross-examinations, especially of Genet, went beyond the prescribed' limit, of if not were pushed so far as to amount to an abuse of discretion. 3⁄8 5⁄8 3⁄8 Looking the cross-examinations all over, considering the peculiar and somewhat novel character of the case, we cannot say that the limit of subject or of just discretion was exceeded, or that any wrong was done to the accused. A party who seeks to testify in his own behalf must take the risk if there are vulnerable joints in his harness.”

In *People*v. *Irving*(95 N. Y. 541), a somewhat celebrated assault case, the head note is as follows: *“*Upon the trial of an indictment for an assault, where the defendant as a witness in his own behalf had given material testimony, in conflict with that given on' the part of the prosecution, *held,*that it was proper, within the discretion of the trial court, as bearing upon his credibility, to ask him upon cross-examination if he had not committed an assault upon another person.” The opinion fully bears out the head note and the case refers to *People*v. *Casey (supra)*with approval, stating that that case is decisive of the one át bar.

In *People*v. *McCormick*(135 N. Y. 663) the defendant was indicted for murder in the first degree -and convicted of mam *689slaughter in the first degree. TÍie conviction was affirmed by the General Term whose decision , was affirmed .by the Court of Appeals, the court holding: “ Our attention is called to but one exception and that was taken to the ruling of the trial judge overruling defendant’s objection to the following question: *‘*Is it not a fact that in the month of September, 1890, two months or about prior to Gillespie’s death, in a saloon known as the Manhattan, in Chatham Square, that you drew a pistol on two disreputable women and threatened to shoot them, and didn’t Rowe the bartender draw a revolver and pointing it at . you did he not say, drop that pistol or. I will blow your damned brains out ? ’ The defendant had been examined as a Witness on his own behalf, and this question was put to him by the prosecution on his cross-examination - The defendant having made himself a witness was subject to the same rules of examination as any other witness, and the question was competent to affect his credibility. *(People*v. *Casey,*12 N. Y. 393; *People*v. *Irving,*95 id. 541.) ”

The leading case now in this State upon this class of testimony is *People*v. *Webster*(139 N. Y. 73). In that case the defendant was indicted for the crime of murder in the first degree and was convicted of manslaughter in the first degree. The defense was self-defense. The defendant, was sworn as a witness in his own behalf and on his cross-examination he was asked by the district attorney questions in regard to vicious or criminal acts of his life. The court said: “We do not think any error was committed in permitting the district attorney, upon cross-examination of the defendant, to show the circumstances under which he met the woman with whom he was living and the kind of fife she was then leading. The questions were all within the range of a proper cross-examination. Their manifest purpose was to prove that his relations to this woman were unhallowed and adulterous in their origin; that their subsequent life together was that of libertine and mistress, and not of husband and wife, and that his word was, therefore, not entitled to the same weight as if his conduct had always been upright and blameless.,

“It is now an elementary rule that a witness may be spe*690cially interrogated upon cross-examination in regard to any vicious- or criminal act of his life, and may he compelled to answer unless he claims his privilege. . A party who offers himself as a witness in a criminal cause is not exempt from the operation of the rule. He is not compelled to testify, and if not examined the law provides that it shall not give rise to any presumption against him. When he elects to become a witness, it is for all the purposes for which a, witness may he lawfully examined in the case, and hé' is not, in the constitutional sense, ‘compelled to be a witness against himself,’ although, when subjected to the test of a legitimate cross-examination, he may he required to make disclosures which tend to discredit or to incriminate him. *(People*v. *Tice,*131 N. Y. 657.) The extent to . which disparaging questions, not .relevant to the issue, maybe put upon cross-examination, is discretionary with the trial court, and its rulings not subject to review here unless it appears that the discretion was abused.. *(Great Western Turnpike Co.*v. *Loomis,*32 N. Y. 127; *Greton*v. *Smith,*33 id. 245.)

“It.is urged that this evidence should-have been excluded, because it tended to implicate the defendant’s wife, who was a witness for him, and thus to impeach her in an unauthorized way before the jury. But any apprehended misuse .of this species of evidence may always be avoided by. asking and obtaining an instruction to the jury, that it is only .to be considered in determining the credibility of the witness who makes the confession.”

The defendant Nelson did not claim his privilege in the case we are considering, and I consider *People*v. *Webster*(139 N. Y. *supra)*authority for the questions asked by the district attorney in this case.

Nothing in *People*v. *Dorthy*(156 N. Y. 237) holds anything contrary to the cases which I have cited so far as applied to the facts in -the case we are considering.

The only case which I have found that seems to he in appar- . ent conflict with what I consider to be the rale in this State is *People*v. *Crapo*(76 N. Y. 288), and that is, in my opinion, not .a departure from the rule. Crapo was convicted of burglary and larceny, and was sworn in his own behalf, .The *691trial was in 1879. The district attorney asked Orapo on cross-examination: “Were you also in 1869, along in February or March, arrested on a charge of bigamy ? ” An objection thereto was overruled and an exception taken. The court held that the question was incompetent, and the judgment reversing the Trial Term was affirmed, Judges Folg-er and Eakl dissenting. Manifestly that case was not this case. Orapo was arrested on. a charge of burglary and larceny. The matter of proving' on-cross-examination that a witness has been arrested has repeatedly been held to be incompetent. It- is not something that the witness had done, but something that was done to him, and may have been done by mistake, or the arrest may have been wrongful.

In *People*v. *Noelke*(94 N. Y. 137, 144) the court distinguished *People*v. *Crapo (supra),*and questions asked of the ‘ defendant on cross-examination in that case as to whether he had been tried and convicted of violating the law prohibiting the sending of lottery circulars through the mail, which .evidence was taken over objection, were held to be no error, and the judgment of conviction was affirmed.

It will be noted that in *People*v. *Crapo (supra)*the question asked called for an answer as to what was done to the prisoner, the defendant, not something that he had done himself, which distinguishes it, in my opinion, from the class of cases to which I have been referring, and from the questions asked by the district attorney of Nelson concerning his trouble with Wright, which all related to actions taken by Nelson, and not to court or other proceedings by some one else against Nelson.

I have not overlooked the case of *People*v. *Smilie*(118 App. Div. 611; 103 N. Y. Supp. 348, 351), which was decided on the same principle as *People*v. *Crapo (supra).*The questions related solely to what another person had *said*of, or to, Smilie, and not to anything that Smilie had *done.*

Under the rulings of the court of last resort in the cases above cited I am of the opinion that no error was committed by the court in permitting this cross-examination.

It follows that the judgment of conviction should be affirmed.

Judgment of conviction reversed and new trial granted.