
    The People, Resp’t, v. James Gorman, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    Trial—Charge.
    Where the testimony of a witness at the trial contradicts his evidence given on the preliminary examination, it is reversible error for the court to intimate which statement he believes to be true.
    Appeal from a judgment of conviction for assault in the second degree.
    
      Hugh J. Pentecost, for app’lt; John D. Lindsay, for the people.
   Parker, J.

The only exception taken by the defendant upom the trial was to a denial of his motion, made after the people had rested, to take the case from the jury, on the ground that there was not “enough evidence to go to them.” After a careful reading of the record, we are satisfied that this motion was properly denied by the court. But as section 527 of the Code of Criminal Procedure vests in the supreme court the power and duty to order a new trial, “if it be satisfied that the verdict against theprisoner was against the weight of evidence or against law, or that justice-, requires a new trial, whether any exceptions shall have been, taken or not, in the court below,” certain questions brought to our attention by the counsel for the appellant will be considered.

In August, 1894, Margaret Fitzgerald, a married woman, residing in Bristol, Conn., visited New York, accompanied by her two-children, the elder of whom was between four and five years old. During her stay she was a guest at her brother’s house, where the defendant, an old acquaintance of her husband’s, frequently visited her. In the afternoon of August 6th, Mrs. Fitzgerald, accompanied by her two children and the defendant, boarded the steamer C. H. Northam, on her return journey home. A few hours later, the captain of the steamboat, hearing a disturbance in stateroom. No. 89, which had been assigned to the defendant, hastened to it to learn the cause. He found the door of the stateroom bolted, but succeeded in getting it partly open, when he saw a woman’s hand dripping with blood. Summoning assistance, the stateroom was entered, and the woman found to be suffering from stab wounds on her neck and left hand, the defendant being similarly out. The officer who arrested defendant within a few minutes after the stateroom had been opened testified that the woman, in his presence and that of defendant, and in response to an inquiry by the officer, said that “he [meaning defendant] cut me.” When .asked with what, she answered, “ A razor,” whereupon the officer produced a razor blade, still wet with blood, and asked her if that was the razor, to which she replied, “Yes.” The officer further testified that the defendant, on the way to the Chambers Street Hospital, voluntarily said, “I intended to do it,” and, when asked why, said : “ It was a matter of jealousy. I didn’t cut her. She out me. I did intend to do it.” Not until the 15th of August was the woman able to get about, and then was brought before a magistrate, and, in the presence of the defendant, made a formal •complaint against him. Upon the trial, however, she testified that her former statement was entirely false, and that the defendant was in no way answerable for the injury which she had received. Her accounts of the occurrence then was that, after some general -conversation in the stateroom, the defendant accused her of being intimate with a cousin of hers, and threatened to tell her husband; that she asked him whether he believed it, and when he said, “ Yes,” she first struck him with a glass, then picked up the razor blade, which she had noticed lying on the washstand when she •entered the stateroom, and cut her own neck with it; that the defendant tried to take the razor away from her, and in the struggle •she cut her hand. If her testimony upon the trial was true, defendant was not guilty of the crime charged. If, on the other hand, her sworn statement before the magistrate was true, he was ;guilty. How the jury should find upon that question was therefore one of much moment to the defendant That the woman had been guilty of perjury, upon either one occasion or the other, was beyond question, and she was justly entitled to the censure which the court meted out to her; indeed, she merited far greater punishment.

But, however great her offense against the law, it was the defendant’s right to have her testimony weighed by the jury, in connection with all the other facts proved, to the end that they should determine upon which of the two occasions she told the truth. The trial court was evidently of the opinion that the witness told the truth before the police magistrate, and not upon the trial; and, both by inquiry of the witness and comment on her answer, he indicated very strongly to her, and to the jury as well, what his opinion was, as will appear from some quotations which we take from the record:

“ By the Court: Q. You lied either in the police court, or you lied here, didn’t you ? A. Yes. The Court: Then we have got to find out when you lied. When people admit that they lie, sometimes it is pretty hard to tell when they tell the truth, especially when they swear to lies. * * * The Court: You have just said that he cut you. You want to be careful, or you will be tripped up. If you don’t tell the truth I will lock you up. You may be sure of that. The court will not be trifled with. * * * The Court; Is she in the House of Detention ? Mr. Weeks: Ho The Court • Then do not let her leave the court room until the" •case is concluded.”

These inquiries and comments by the court are not referred to as furnishing sufficient ground for reversal, but rather because they show the impression which her testimony had’made upon the mind of the court, and give emphasis to the portions of the charge to which reference will now be made.

.The court in its charge said:

We find the situation of a person, having complained, at the time the person is presented to her, identifying him; going to the police court, and making a complaint there; going before the grand jury, and making a complaint there; going to the defendant this morning, and appearing upon the stand in this court, and making a different statement”

And, again.

Certain it is that she was so coherent in that statement, and it was made in so satisfactory a manner, that a criminal complaint was founded upon it; and certain it is that subsequently she was in sufficient health and intelligence to go before the grand jury .and repeat that statement. It resulted in an indictment, which has brought this defendant to this bar.”

We are not able to find in this record any evidence that the woman even appeared before the grand jury. Thus, it appears that twice in the charge to the jury the court asserted the existence of a fact which, if true, could have none other than an important influence upon their minds, when there was no evidence before the ■court to support such assertion. Again, the court, after charging the jury that, if they believed she had made a misstatement under ■oath on one occasion or the other, they would be left in a situation not to believe her, said :

“But, at the same time, if you believe, in accordance with common sense, reason, and the evidence, that the story that she now tells is a falsehood, and that the story that she admits having told in the police court is the true one, she should not be allowed to humbug you or the court, or trifle with its process, or make a bargain with the defendant, to the end that he may escape the consequences of crime, if that be the situation.”

IE the jury up to this time had been left in doubt touching the view of tlie court as, to how they should find upon this question of vital importance to the defendant, certainly they could doubt no longer ; for not only was the opinion of the court thus communicated to them, but the opinion of the court was, in effect, asserted to be in accordance with common sense, reason, and the ■evidence., This, undoubtedly, liad the effect of causing the jury to feel that they were in some measure, at least, relieved from the necessity of estimating for themselves the full value of the evidence bearing upon the probable truthfulness or'untruthfulness of the evidence of the woman Fitzgerald as given upon the trial, and therefore was material error. McKenna v. People, 81 N. Y. 360. We think the charge of the court, in the respects pointed out, presents such error as calls for a reversal of the judgment. The judgment should be reversed, and a new trial ordered.

All concur.  