
    FRANCIS CRAPO, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.
    
      Prisoner testifying in Ms own behalf — impeachment of character of — what evidence inadmiissible — Evidence as to theft.
    
    Where a person, charged with crime, offers himself as a witness in his own behalf, he stands on the same footing as any other witness, and his character can only be impeached by evidence similar to that which would be required to impeach the character of any other witness.
    On the cross-examination of a person charged with burglary, he was asked, and, against his counsel’s objection and exception, compelled to answer the question, “were you also in 1869, along in February or March, arrested on a charge of bigamy 1” Held, that this was error.
    What evidence admissible on behalf of a person accused of theft to explain the fact of his having upon his person property, apparently a portion of that stolen.
    Writ of Error to the Court of Sessions in and for the county ot Jefferson, to review the conviction and sentence of the plaintiff in error for burglary and larceny, after a previous conviction for the same felony.
    
      Bradley Winslow, for the plaintiff in error.
    
      Watson M. Rogers, for the defendants in error.
    There was' no error in the ruling of the court permitting the question to the prisoner whether he had been arrested on a. charge, of bigamy. (•Turnpike Co. v. Loomis, 32 N. Y., 127; La. Beau v, T.he-People., 34 N.- Y., 223;. Brandon v. The People,,42-N- Y., 23.5; 58 N, Y., 659; Main,v. The-People, 9 Hun, 113,).
   Talcott, P. J.:

The writ of error, in this case brings before us .the record, of the conviction of the plaintiff of the crime of burglary and larceny, after a previous-conviction for felony. The conviction was before the General Sessions of Jefferson county, The burglary was the breaking and entering the grain house of one Mary Petit, and there stealing seven bushels of wheat. The prosecution relied for the conviction of Crapo upon circumstantial evidence, with the exception of an implied confession, which was denied by Crapo when on the stand as a witness.

The most.important, of these circumstances was th’e finding of some wheat in the pantaloons pocket of- Crapo about the time when the wheat in question was probably stolen. The wheat was found by a police-officer, who arrested and' searched Crapo on suspicion that he was concerned in the commission of another offense; and in the course of. the search, found in his pocket the small quantity of wheat, answering the general descriptions of the wheat which- was stolen from-Mrs. Petit's granary. The plaintiff in error, on being inquired of by the police officer what he was doing with the wheat, Crapo sa.id it was a sample.“ fetched up to sell by;” and .he. stated at the same-time that he had sold some wheat to Shead and Graves, millers, at' Watertown, something over five-bushels, and had got, between five and. six dollars for it. The prosecution also proved by Shead, one of the firm of Shead and Graves, that sometime (about the. time when the wheat was so found in Crapo’s pocket),,, he had. purchased; of some..man,not, identifying Crapo as the person, a small quantity of. wheat at one dollar a bushel, between five and- six, bushels.

On the examination of the mother, of the plaintiff in error, who was calle,d. as a witness in Ms behalf,.she was,asked by, the prisoner’s counsel the following question : “ Did you; know of your son going to Dexter, about that time, and selling some wheat there ?” which question was objected to,by the district,- attorney, the objection sustained by the court, and the,prisoner's- counsel excepted.

The prisoner, offered himself'as a witness in. his-, own behalf anti referring ■ to. the time when.-he was searched by the police officer, he said-: “I did. pot handle, any, wheat, op.that day at all ;, a few days before then-I went to Dexter wjth, six bushels.” The district attorney then moved: that the evidence about going to Dexter with thq six bushels be ■ stricken, out. The motion .was granted, by the epurt, and the prisoner’s counsel-excepted. The prisoner’s counsel also, made a formal offer to prove, by-the prisoner, that about that time he took, some wheat to Dexter, and had it ground and brought home; which offer of evidence was objected to by. the district attorney, The court sustained the objection, and the counsel for. the prisoner excepted. •

The prisoner, on,his examination, denied-that- he .-told, the -police officer that he had been to Shoad and . Graves ,to sell wheat, or that he told the police officer anything-about the-grain at all..

We think the court erred in rejecting the evidence offered, on tills subject, and in-striking but the evidence given-by t}ie defendant. The finding of wheat oh. the person of the. defendant, at a¡bout the time of. the burglary, was relied upon as an important circumstance tending to show the prisoner’s .guilt..

It was important for him to show, if he could,-,how a; small quantity of, wheat might have been upon his person when searched by the police officer, consistently with his innocence of the offense with which ¡he was charged. Though- the ■ court- may have disbelieved his story, and believed that of the policeman, yet it was a question to be decided by the jury, and not by the court. The testimony should’have been admitted, and1 the jury left'to determine its value. The. district attorney also asked , the prisoner,- on Ms cross-examination : “Were you, also, in 1869, along in Febmazy or March, arrested ozz a chai-ge of bigamy ?” To this question the prisoner’s counsel objected. The objection ivas overruled, and the prisoner’s counsel excepted. We cannot conceive how anybody could suppose this question could be admissible. The questioiz was asked, doubltess, Avith a vícav to create in the minds of the jury a prejudice against the prisoner. It could not have had the effect of impeaching the prisoner’s character, either gezierally or for truth and veracity. If the fact that a znan has been chaz’ged Avith an offense involving moral turpitude, is to be admitted as evidezzee to impeach his character iiz aizy respect, it will not only open the door to a multitude of collateral issues, but. no person would be safe from the effect of the prejudice cz’oate'd by the mere fact of the charge. (Jackson v. Osborn, 2 Wend., 555 ; People v. Gay, 7 N. Y., 378.)

■ In Jackson v. Osborn (supra), it Avas held that even indictments found for forgery and pezjury were inadmissible to impeach a witness Avithout proof of a conviction. In the case of Brandon v. The People, (42 N. Y., 265), where the admission of a similar qzzestion was sustained, as avo understand the opinion, it was placed wholly upon the ground that the only objection made to it was upon the ground that the prisoner had not placed her character in-issue, wholly ignoring the rule that the prisoner, having offered herself- as a Avitness, Avas szibject to the same rules in regaz’d to impeachment of her character applicable to other witnesses. The idea that a person charged Avith a crime, Avhezz he offers himself as a witness in his oaviz behalf, is to be pz’epaz'ed to show himself guiltless, not only of the offense in question, but of all others AAdiich may have at any time been chai'ged against him, lioAvevcr prevalent, is erroneous. He stands, izz such a case, on the same footizzg as other witnesses, azzd his character cazz only be impeached by similar evidence to that which is required to impeach the character of any other Avitness. For the ez’rors above specilied, we think the judgment must be reversed. Cozzviction and judgment reversed.

Present — Talcott, P. J., Smith and Hakdin, JJ.

Judgment and convictiozz reverséd, and proceedings remitted to General .Sessions of Jefferson county, with directions for a iioav trial.  