
    The People of the State of New York, Respondent, v. John Murphy, Appellant.
    First Department,
    May 25, 1906.
    Crime — erroneous exclusion of evidence bearing on identity of one charged with robbery—when error immaterial because of evidence aliunde.
    When there is a question of the identity of one charged with robbery, and a witness for the prosecution ^as testified on "cross-examination that he had previously said that the robber’s teeth were out on one side, it is error to exclude the testimony of a, police officer to whom the statement was made showing that the witness said that the defendant's front teeth were missing.
    
      But when the identity of the defendant has been abundantly established by evb dence aliunde, and- he has in fact many teeth missing, the^ error is not stiffi/ciently prejudicial to the defendant to-warrant a conviction being set aside. .
    ' . » / Appeal by the defendant, John Murphy, from a judgment of tlie -Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, rendered on the 31st day Of March, 1905, convicting the defendant of the crime of robbery in the first degree, and also from orders entered on the 31st day of March, 1905, respectively denying the, defendant’s motions for a new trial and in arrest of judgment.
    •George Gordon Battle [Battle dé Marshall, attorneys], for -the appellant.' -
    
      E. Crosby Kindleberger [William Travers, Jerome, District Attorney], for the respondent.
   Clarke, J.:

The defendant was indicted for and convicted of the prime of .robbery in the first degree in' having taken by force from the person of Mrs. Lillie Cornish,, against her will at. two o’clock in the morning Of February 18, 1905, in the borough of The Bronx, county of Mew York, being then and them armed with, a dangerous weapon to wit, a pistol, a valuable diamond brooch.' There was -no dispute upon the trial as to the' facts surrounding a peculiarly bold and atrocious highway robbery. Mr. and Mrs. Cornish having,been at a theatrical performance - downtown -and 'being then on their way home, alighted from a car at One Hundred and Thirty-eighth street, near the corner of BroWn- Place. It was a bright moonlight night, and the electric lights were burning..' After the Cornishes alighted from the car, a man jumped from the same car before it reached the next Corner, advanced upon Mr. and Mrs. Cornish with a revolver in his hand, said that if they uttered a sound he would “ blow your damned brains out,” shot three times at Mr. Cornish, one shot passing through his hat and one through the shoulder of his coat,, then threw Mrs. Cornish to the ground, knelt upon her breast, placed the. pistol towards 'her forehead,, threatening her-life if she shouted, tore the diamond brooch from her neck, and then , ran down'Brown Place with it. He was pursued by Mr. Cornish, and subsequently by a police officer, at whom he fired several shots, but succeeded in making his escape. Two days afterwards the defendant was arrested at 724 East' One Hundred and Thirty-seventh street, in the neighborhood of the place of the crime, in the fiat 'where he was living. His trial took place five weeks after the commission of the crime. .

The defendant pleaded not guilty and attempted to establish an alibi. The proof showed that he had been six times .convicted of various crimes, and had been but twenty-two months out of prison at this time. The sole question at issue was that of identity. Five witnesses for the People positively identified the defendant, Mrs'. Cornish testifying: “ When he was over me I will never forget his face.” It was the province of the jury to pass upon the evidence, and we are satisfied with their verdict thereon. The appellant contends that prejudicial error was committed in the exclusion of evidence. Immediately after the robbery occurred, Mr. and Mrs. Moráis, who were passengers in the same car, although they did not know the Cornishes, who testified that they had seen the defendant in an elevated car in which they were returning home, and in the surface car in which they and the Cornishes were going to One Hundred and Thirty-eighth street, and who were eye-witnesses of the robbery, went to the station house. There Mrs. Cornish gave to the sergeant at the desk a description of the robber, “ I told him, as near as my judgment, a young man about five foot six, weighed between 135 and 140, and I thought between 25 and 28 years of age. I said he had on a dark tan overcoat and a' black felt hat, * * * but not an alpine hat, not knocked in the center, not one of those hats, not . creased in the . center * * *. Dark ■ tan overcoat—* *■ * those mixed goods.” Upon the cross-examination of Moráis this testimony was given: I gave to the sergeant a. description of this man f * *. This man that night had on a dark tan overcoat to about the knee; it didn’t go below the knee, and a soft hat, a black soft hat, more on the shape of a derby, though it. was not a derby. That is all I remember; and a pair of dark trousers; lie had on dark clothing and a dark tan overcoat. Q. What description did you give to the captain or to the sergeant at the desk that night? A. He was a man about five feet six, about.. 25 to 28 years of age; he may have: been older or lie may have been younger; 1 would not be' positive about’ that.;: his height about five feet"six, and the -teeth but in filie- right- side-. - Q. Was that description taken down in the station house blotter ?, A. I presume it was. Q: Did you see. it written down ?. A- Yes, sir:. Q. Was it written down-in' the book on the desk in front of the sergeant ? . A. I" think it was-; I didn’t take particular notice of that. Q. What is- your best' recollection of- that.? A;- The best of my recollection is that it Was put on some book or sheet. ■ Q. Did your, wife give a description at the same time? A. Ho, sir, my wife did not give any .description; she. simplysaid she could: identify the man whenever he was- brought up.. Qv You are .positive you said .the teeth were out on the side ? A,. Yes, sir, positive I did. Q. -Did you have any talk with newspaper reporters about this, matter? A. I did-see.a newspaper reporter ; a lot lias been said in the newspapers that I never said; Q.. Did you fiadle to any reporters, about the man? A, Yesj sir; but just where lie came-from 1 don’t know. Q. Did ydu- tell 'him that, you noticed that the man that you saw that night had his front teeth out ?• A. I did not; no, sir; there was- one papér said that I stated the man had black hair, and I never did. Q. Just W'ait a minuté. Did you give this-: description to a. reporter soon after, the, arrest-; The man is described as 25 years old, 5 feet 6 inches tall, weighs 140 pounds, ah his front-teeth are missing ? ’ A. Ho,, sir; .- Q. He wore; a tan-colored overcoat and a -black' soft hat ?' A.. Ho, sir. Q. You never gave any such description ? A. Ho, sir. Q> To anybody ? A. Ho,- sir;, .the description I gave is in the" station house-—the correct description.” '

For the defense the desk sergeant that night at the police station, Farr, testified.that “Mr. Moráis made a statement to me,.describing the man who. committed- this- robbery.” He was then asked by counsel for. the defendant, “ Q-. Did pot Mr. Moráis, fell ypir in giving you a. descripfion.of this, man on,this occasion that his front teeth were, missing ?; [Objected to; objection sustained; ' exception;.] The Court,: The question, was- not asked Mr: Moráis. Q. Did Mr. Moráis tell you. that the side teeth-Of this mail were" missing? [Objected to,;, objection sustained; exception;], * - . * * Q. Did Mr. Morals, tell yon that the-teeth-of this man were out on the side"-? The Court: The question asked Mr. Moráis was this: ‘ Did you tell him that you noticed — are you- positive you said the teeth were out on the side ? ’ Q. Did Mr. Moráis tell you that the teeth of this man who committed this robbery were out on the side ? ” The. learned court sustained the objection upon the ground that it was ■ indefinite as to when he made this statement and to whom. Counsel for the defendant stated: “ I submit that Mr. Morais’s attention was directed to' the time ; that it was immediately after this shooting, and that the place was the station house, and the person was the sergeant at the desk. The Court: Mot in relation to this question ; it is standing alone 'by itself. • There is no connection at all between that and the antecedent question as asked of Iiim, ‘ Did he give a description to the sergeant at the desk ? ’ I sustain the objection. * * * . Q. I will ask you, did Moráis tell you on the morning of .February 18th, shortly after two o’clock, when you were the sergeant at the desk in the. 35tli Precinct Station House that the man who committed this robbery had his front teeth missing ? [Objected to; objection sustained; exception.] ”

The defendant, a witness for himself, showed his mouth and teeth to the jury, and testified that he had eleven teeth “missing now with the filling. * *- Without counting these * * * (indicating) as my natural teeth, I believe I have eleven teeth out now; right here up and down, three here, four here, three here, and one there. Those front teeth * * * are * * * my natural teeth.”

The question of the identity of the robber was material 'to the issue. It was a controverted fact in the case. Five witnesses for the People testified that the defendant was the robber. He denied it and called witnesses to prove that he was at home and in bed at the time of the occurrence. Moráis having testified that he had given a description immediately after the event to the sergeant, was asked on cross-examination, “You are positive you said the teeth were out on the side?” To which he answered, “Tes, sir, positive I did.” This was a detail of the identification, and as a statement made as to a material fact, the defendant had the right to show that at the time and place and to the person indicated he did not make such statement. It seems to me that his attention was sufficiently drawn to the occurrence, the person and the statement, to permit contradiction thereof, and, therefore, that it was error to exclude the question asked of the sergeant: Did Mr. Mofáis. tell you that the teeth of this man were out. on the side ? ”

' 'But section ■ M2 of the Code of Criminal Procedure provides that, “after hearing the appeal,, the court must give judgment,' without' regard to technical errors or defect's, or to exceptions which do not affect' the. substantial rights of the parties.”. The question of the teeth was but one detail of the identification. Mrs. .C,ornish testified that she'saw the defendant sitting in the same car with her; that at the time of the robbery she clearly and distinctly saw him- under the 'electric light and the moonlight,' and that she would never forget" his; face. She gave a description the same night, saying nothing of his teeth, but giving weight, height, size and age, none of which; statements have been controverted, and the defendant was before the jury, so that they could compare the.description. She identified him a-few days afterwards in the Police Court and positively swore to hi's identity upon the trial. v Mr. Cornish did not notice' him in the car, - but saw him when he dropped off the car; saw His face under the electric light while-he was shooting at him,' identified him ip the Police Court, and swore upon the trial, “ He is the man who shot at me. He is the ‘man whom I saw kneel- - ing ’ over my wife -— the same man — with his hand at her throat,” add testified that he did not notice anything about his teeth. • Mrs. Moráis testified that she saw the defendant on an elevated train and then on a surface car; that after the shooting she saw thé - defendant, the same man she had "seen on the two' cars, running towards them.; that be came within twenty-fivé or thirty feet; that, with, the electric light right across the street and the bright moonlight it was just as clear as day; that she saw his face - clearly, plainly, she was positive; she saw the officer running after.him and. saw the defendant fire at the officer ; that she saw him afterwards in the Police Court andas soon as she saw him said, “ That’s the man.” She was asked in cross-examination : “ Q. Did you notice anything about the teeth of the man that you saw in- the elevated? ” and answered, “ Well, I took in his' features ; I noticed his teeth on the right-hand side ; I didn’t take particular notice, but I said that if I saw the man again I would recognize him.” §he was also asked by counsel for the'defendant, “ Q. Did you hear anybody say that, his front teeth were missing?” and .answered, “He,, sir, I did not.” The officer who pursued him said that when the defendant turned around and fired at him he was About fifty feet-away and that he saw his face at that time. So 'that it appears, so far'as the question ■ of the teeth was concerned, that it was brought into the case by the defendant and that there was abundant evidence aliunde of identification, if believed by the jury, to justify conviction, and that as matter of fact the defendant had eleven teeth missing on the side of his mouth.

In the face of all this evidence it seems clear to us that, if it had appeared that the sergeant.would have testified that on the night in question Moráis had said that the teetli were missing from the front of the month, instead of the side' of the mouth, there would not have been a different result. Every one of the other details tallied, the prisoner was before the jury, the witnesses wére positive, the weight- of their testimony was for the jury, and it cannot be said that there was such prejudice by reason of the exclusion of the one question that the verdict should be set aside.

We have examined the other,questions raised in the ease, but find no error therein,' and the judgment should be affirmed.-

O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment affirmed. Order filed.  