
    The People, Resp’ts, v. Michael Fleming, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    ■Criminal law—Tbial—Comments of the coubt upon the evidence.
    Where no exceptions to the charge were taken by the defendant upon the trial of an indictment for grand larceny, Held, that the court would not reverse the conviction because the trial judge said to the jury that he did not see that the direct evidence of one of the People’s witnesses had been shaken upon cross-examination, and further that unless that witness had committed perjury it seemed to the court that there should be very little hesitation upon the part of the juiy in coming to the conclusion that the crime of larceny had been committed.
    Appeal from judgment of the court of general sessions convicting defendant of grand larceny.
    
      Purdy & McLaughlin, for app’lt; B. S. Weeks, for resp’ts.
   Van Brunt, P. J.

The evidence upon the part of the People ■showed that on the 4th of September, 1890, the defendant got on a crowded street car and took from the pocket of a gentleman sitting on the dashboard of the car a gold watch, which he passed from his right to his left hand; that he was then seized by one of the passengers, but broke away and ran, but was afterwards overtaken, and after a struggle was turned over to the custody of an officer. The watch in the meantime had been picked up by the -conductor and returned to the owner.

. At the close of the People's case a motion was made that the jury be instructed to acquit, on the ground that no sufficient evidence had been adduced to make out a case, which motion was denied.

The defendant then went on the stand, denied the larceny, but admitted being on the car at the time, and alleged that he was ■seized by one of the passengers, who had been a witness for the prosecution, dragged off the car and accused of taking the watch ; that he did not like the idea, felt indignant, not grossly and highly indignant, but he was innocent of it, but he felt so indignant that he wanted to run away, and did run; that he had no particular cause for running except his indignation; that the passenger ■caught, him again, and without any apparent reason tore the sleeve ■off his coat, although the defendant did not try to get away, and that his indignation after the tearing of the coat was so great that he kept on running until the passenger caught him again, and lie-tried this several times, only being able to run a few feet at a time, because of the passenger who clung to him; that he attempted to run away because he knew he' was being unjustly accused to-escape being arrested.

The defendant further stated that the man who is running away is generally taken to be the thief, but, notwithstanding this, he-persisted in running, and kept it up until he found it was impossible to rid himself of his companion, who walked with him until he gave him in charge of a police officer, who took him to the station-house. •

It further appeared, upon the cross-examination of the defendant, that he had been arrested on suspicion about fifteen times, and that he had been convicted once for stealing a watch from a gentleman, who identified him, although he had been in bed for six hours after the commission of the crime!

Some attempt was made to show that the passenger who testified to the act was unworthy of belief because, as the appellants' counsel says, he was a salesman, occasional mind reader, amateur detective and general supervisor of other peoples’ business, which, however, did not have much effect upon the jury, and should not, have any very great effect upon this court.

The defendant was convicted, and from the judgment thereupon entered this appeal is taken.

One of the points raised is that there was a material variance between the indictment and the proof as to the ownership of the watch, the allegation in the indictment being that the name of the person whose property had been stolen was unknown, while the proof on the trial was that the owner, Mr. Hertz, was before the grand jury.

It is true that the witness testified that the owner, Mr. Hertz, was before the grand jury, but it is not shown that Hertz testified before them, or that his name as the owner of the watch became known to the grand jurors; and it is suggested by the district attorney that it is somewhat difficult to see how the witness could have known that Hertz was before the grand jury, as only one witness at a time can be examined before them. And furthermore, the evidence does not seem to be material, and did not in any way affect the substantial rights of the parties, and should not therefore be regarded.

It is further urged as ground for reversal that the court erred in excluding evidence upon cross-examination of the principal witness, who, after being cross-examined as to the circumstances, was. asked; “You are somewhat of an amateur detective, are you not l"

This question was objected to and the objection sustained. It is clear that this line of examination was entirely within the discretion of the court. It in no way tended to impeach the character of the witness or to affect the credibility of his testimony, and no error upon its exclusion could possibly be predicated.

He was also asked: “ Do you remember testifying in the police oourt that you were the complainant in a case against a boy charged with larceny that occurred at a fire ? ” This was objected to as incompetent, and the record shows that the objection was sustained, but the witness answered: “ I do not think I testified before the magistrate in the police court that previous to this time I had been a complainant in a criminal case against another person.”

This seems to have been an answer to the question, and even if the exclusion of the question, if it was excluded, might have been error, it clearly is not available upon this appeal, as it was substantially answered in the first place, and, secondly, because no exception was taken.

A witness upon the stand who was present at the examination in the police court and stated that he remembered hearing the testimony of Dreyer, the only complaining witness in this case, was asked: “ Do you remember him stating that previous to this time he had had a person arrested for - larceny? ” He was also asked whether on that occasion he heard him testify to having been a. complainant in any other criminal case than the one then on trial. These questions were objected to and excluded, and exceptions taken.

There was no error in the ruling of the court. All these questions were collateral; and the appellant was bound by the answer of the witness. What he stated as to collateral matters when upon examination in the police court could not become principal evidence in the case upon trial simply because thé interrogatories were repeated.

The answers of the witness were equally conclusive upon either examination and he could not be impeached by showing that he had made different statements at different times in reference to those things which were collateral. The evidence was clearly incompetent and was properly excluded.

It is urged that the court erred in charging the jury, and in considering the points raised it is proper to say that no exceptions were taken to the charge. And it is apparent from a reading of the charge that if any exception had been taken to the language of the court in some particulars it would have been immediately obviated, and it does not appear that the defendant has suffered any such great prejudice as that without the aid of an exception a reversal should be had.

The expression of opinion by the court that he failed to see that the direct evidence of the witness Dreyer had been shaken by cross-examination does not afford without the aid of an exception any ground for this court setting aside the verdict. Neither does the statement of the court that unless Dreyer had committed perjury it seemed to him that there should be very little hesitation on the part of the jury in coming to the conclusion that the crime of larceny had been committed.

As to that portion of the charge in which the court stated that if the complainant’s evidence was true, he having seen the defendant commit a felony, it was his duty as a citizen to arrest him, it is clear that the court was simply intending to convey to the minds of the jury the difference between the right of a citizen and of a police officer to arrest, the right of a citizen being to arrest where a felony has been committed and that of a peace officer where he has reason to believe that a crime has been committed and that the party arrested is guilty of it

It was to enforce this distinction that this expression was used, to which no exception was taken.

It is urged that the court erred in its reply to the appellant’s request for an instruction in regard to an attempt. The record shows the following:

‘‘ Deft’s Counsel.—I desire to ask your honor to charge the jury that in case they may convict this man, they may convict him of an attempt to commit the crime of grand larceny in the second degree.
“ The Court: Gentlemen, if you come to the conclusion that the defendant did not actually take the watch from the person of the complainant, and get it into his possession feloniously, but that he did any act effecting that object, you may convict him of an attempt to commit grand larceny in the second degree.”

It is very clear that the court intended to say, and probably did say “tending to effect that object,” and that if the word “effecting ” was used, which is very doubtful, notwithstanding its presence in the recoi'd, it was the duty of the counsel to call the attention of the court to it in order that the verbal correction might be made.

But no exception was taken, and the defendant has not suffered any damage because the charge was more favorable to him as printed than it would have been had the correct language been used.

Upon the whole record, therefore, we think that there is no error which calls for a reversal of the judgment, and it should be affirmed.

Daniels, J.

I agree that this conviction should be affirmed. But at the same time the practice of judges expressing their opinions on the evidence in the course of the trial, or in the submission of the case to the jury, should be disapproved. It has been excused and tolerated, but never commended. It is a departure from the province of the judge, and an encroachment on that of the jury, and often an injury to a person whose guilt is in doubt. The practice is wrong, and should be avoided.  