
    The People of the State of New York, Respondent, v. David McDowell, Appellant.
    Argued November 14, 1960;
    decided January 12, 1961.
    
      
      Abraham Ziegler for appellant.
    I. The trial court erred in excluding evidence of defendant’s general reputation for peacefulness in the community in which he resided. (People v. Van Gaasbeck, 189 N. Y. 408; People v. O’Regan, 221 App. Div. 331.) II. The trial court’s error in excluding defendant’s evidence showing general reputation for peacefulness constituted prejudicial error in that it deprived him of a vital, exculpatory defense. (Cancemi v. People, 16 N. Y. 501; Remsen v. People, 43 N. Y. 6; People v. Bonier, 179 N. Y. 315; People v. Colantone, 243 N. Y. 134.) III. The trial court erred in excluding evidence of the complaining witness’ hostility to defendant. (People v. Lustig, 206 N. Y. 162; People v. Michalow, 229 N. Y. 325.) IV. The trial court erred in excluding the hospital admission record of the complaining witness on the ground it was a privileged, confidential record. (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106; Klein v. Prudential Ins. Co., 221 N. Y. 449; Bloodgood v. Lynch, 293 N. Y. 308; People v. Preston, 13 Misc 2d 802.) V. The trial court’s exclusion of legally admissible, material evidence duly excepted to constitutes reversible, not harmless error. (Stokes v. People, 53 N. Y. 164; People v. Wood, 126 N. Y. 249; People v. Corey, 148 N. Y. 476; People v. Strait, 154 N. Y. 165; People v. Smith, 172 N. Y. 210.) VI. The District Attorney in summation interjected prejudicial ulterior matters calculated to sway the jury from its duty. (People v. Fielding, 158 N. Y. 542; People v. Mull, 167 N. Y. 247; People v. Tassiello, 300 N. Y. 425; People v. Hart, 114 App. Div. 9; People v. Gioia, 286 App. Div. 528; People v. Glennon, 37 Misc. 1.) VII. The conduct of the District Attorney in smuggling into the record a charge by the complaining witness that defendant had previously cut her was prejudicial error. (People v. Goldstein, 295 N. Y. 61; People v. Namer, 309 N. Y. 458; People v. Zackowitz, 254 N. Y. 192.)
    
      Arthur W. Wilson, District Attorney (John L. Butz of counsel), for respondent.
    I. The trial court properly ruled on questions relating to the reputation of appellant for peacefulness. (Michelson v. United States, 335 U. S. 469; People v. Nuzzo, 294 N. Y. 227; People v. Smith, 245 App. Div. 69; People 
      v. Greenwall, 108 N. Y. 296.) II. The trial court did not erroneously exclude any evidence attempting to show the general reputation for peacefulness of defendant-appellant. III. The trial court properly ruled on the objections made and at no time excluded competent and material evidence offered by the defense. IV. The trial court properly excluded from evidence the hospital records pertaining to the complaining witness. (Hurd v. Republic Steel Corp., 275 App. Div. 725; Lorde v. Guardian Life Ins. Co. of America, 252 App. Div. 646; Vilardi v. Vilardi, 200 Misc. 1043; Palmer v. John Hancock Mut. Life Ins. Co., 150 Misc. 669; Polachek v. New York Life Ins. Co., 147 Misc. 16, 240 App. Div. 1028; Davis v. Supreme Lodge, Knights of Honor, 35 App. Div. 354, 165 N. Y. 159.) V. The trial court did not exclude legally admissible or material evidence. VI. The summation of prosecution was within the hounds of fair and reasonable comment on the evidence and free from prejudicial error. VII. The conduct of the District Attorney was not improper and the testimony of the complaining witness cited in error at this point raised no prejudice against defendant-appellant.
   Burke, J.

The judgment convicting defendant of assault in the second degree must be reversed because of the erroneous exclusion of evidence which is competent, relevant and material to the issues.

The excluded evidence dealt with defendant’s reputation for peacefulness in the community in which he resided, and the alleged hostility of the complaining witness.

[I]t is well settled that in a criminal prosecution, the defendant may introduce evidence as to his own good character for the purpose of raising an inference that he would not be likely to commit the offense charged. People v. Van Gaasbeck, 189 N. Y. 408 * * *; Cancemi v. People, 16 N. Y. 501.” (Richardson, Evidence [8th ed.], § 154; 7 Wigmore, Evidence [3d ed.], § 1981.) Although the attempts of defense counsel to introduce the evidence were lacking in legal preciseness, they nevertheless corresponded to methods generally approved (Michelson v. United States, 335 U. S. 469; People v. Van Gaasbeck, 189 N. Y. 408; 7 Wigmore, Evidence [3d ed.], § 1983) and deserved the approval of the trial court. Objections to the exclusion of character evidence cannot be taken lightly. ‘ ‘ This court has frequently stated that evidence of good character is a matter of substance; [sic] not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing.” (People v. Colantone, 243 N. Y. 134, 136; People v. O’Regan, 221 App. Div. 331.) Indeed the value of such testimony is pointed up by our rule as to the effect of evidence of good character. (People v. Trimarchi, 231 N. Y. 263; see, also, People v. Johnson, 5 N Y 2d 1000.) The prejudice here suffered by the defendant as a result of the exclusion of the character evidence entitles him to a new trial.

An additional error was committed by the trial court in refusing to allow testimony offered by defendant which tended to make apparent the hostility of the complaining witness. Defense counsel gave the correct reason for admission of such testimony when he stated: “ I want to attack the credibility of your witness ”. As there was only one other eyewitness to the crime, the defendant was seriously prejudiced when he was prevented from trying to show that the testimony of the complainant was actuated by feelings of hostility and revenge. It is conceivable that a jury might not have believed such testimony if the defendant had been permitted to testify as to prior conduct and statements. “ The rule is settled in this state, by repeated decisions of this court, that the hostility of a witness toward a party, against whom he is called, may be proved by any competent evidence. As it was stated in People v. Brooks (131 N. Y. 321, 325), the hostility ‘ may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then witnesses may be called to contradict him.’ ” (People v. Lustig, 206 N. Y. 162, 172.)

The discretion of the trial court consequently does not encompass a refusal to admit any such evidence, but rather permits it to limit the quantity thereof. (Garnseg v. Rhodes, 138 N. Y. 461.)

Other contentions of the defendant regarding statements made by complainant at the time of her admission to the hospital, and the alleged harmful conduct of the District Attorney, need not be considered here, in view of the necessity for a new trial.

The judgment of the Appellate Division should be reversed, and the case remanded for a new trial.

Chief Judge Desmond and Judges Dye, Ftjld, Fboessel, Van Voobhis and Fostee concur.

Judgment reversed and a new trial ordered.  