
    Court of General Sessions, Chambers, Kings County.
    July, 1904.
    THE PEOPLE v. THOMAS C. SMITH.
    (44 Misc. 379.)
    Trial—When the Admission of Erroneous Evidence is not Fatal Error.
    The admission, upon the part of the People upon a trial for murder in the first degree, of clearly illegal evidence will not justify issue of a certificate of reasonable doubt whether a conviction of murder in the second degree should stand where on all the evidence the guilt of the accused is clear and during the trial and on the day after the illegal testimony was admitted by the trial judge he struck it out and instructed the jury to disregard it—it should be assumed that they did as instructed.
    Application for a certificate of reasonable doubt on a conviction of murder in the second degree under an indictment for murder in the first degree.
    Lorlys Elton Rogers for motion.
    Edward Sanford opposed.
   Gaynor, J.:

The defendant claimed that the pistol shot which killed the deceased was accidental. The learned trial judge admitted in evidence an oral statement of the deceased to a police officer that the defendant shot her intentionally, to which the defendant’s counsel excepted. The said counsel afterwards moved to strike the evidence out. The motion was granted in part, and the next day on the coming in of the court the learned trial judge resumed consideration of the matter at his own instance, and granted the motion in •respect of all the evidence, and instructed the jury to disregard it. Was the error cured? No one can tell how that will be finally decided by reading the decisions of our highest court. A strong tendency exists in our appeal courts to regard jurymen as below par in intelligence and judgment, and quite incapable of resisting prejudice, whereas the theory' of our system of government and laws is to the very contrary, i. e., that they are better fitted to judge the facts, and less likely to be unduly influenced, especially in criminal prosecutions, than judges, The rule in this state that it must appear that the error “could by no possibility have prejudiced the defendant” (People v. Koerner. 154 N. Y. p. 376), seems to- me to have been based on the assumption that a jury is intellectually unfit to try a case, and is giving way by degrees. For a bench of judges to complaisantly say, “Of course this error would not have affected us, but we cannot say that it did not possibly affect the jury, ” not only puts the jury below the learned judges in intelligence and common sense, but seems to put them below average intelligence and common sense, whereas the law rates them to the very contrary. It is also applying a rule of perfection to trials, whereas no such rule is applicable to any of the affairs of men.

The error in this case was a hard one on the defendant, but in view of all of the evidence, and of the clearness of the defendant’s guilt, it does not seem to me that it may be reasonably said that the jury were affected by the evidence which was struck out. On the contrary, the assumption ought to be that they were not, but that they disregarded it as they were instructed to do (Gall v. Gall, 114 N. Y. p. 109; Holmes v. Moffat, 120 N. Y. 159; People v. Schooley, 149 N. Y. 99: People v. Doody, 34 Misc. Rep. 463).

Application denied.  