
    The People of the State of New York, Respondent, v. James Stack, Appellant.
    
      Bobbery—right of the accused to ash: a witness who had been assaulted, whether he had not identified another person as his assailant — error, when disregarded on-appeal.
    
    Where, upon the trial of an indictment for the robbery of a store, in the commission of which the clerk in charge was assaulted, the accused claims that the offense was committed by other persons, but is himself positively identified as-the guilty party by such clerk, it is error, upon the cross-examination of the clerk, to refuse to permit the accused to ask him whether he ever identified Frederick Powers, one of the persons whom the accused claimed had participated in the crime, as the person who held the revolver to his head.
    Where, however, the accused is given full opportunity to cross-examine the clerk in reference to his identification of the accused, and with reference to what part, if any, Powers had taken in the commission of the crime, such error may be disregarded' under section 643 of the Code of Criminal Procedure, requiring the appellate court to give judgment without regard to technical errors, which do not affect the substantial rights of the parties.
    Appeal by the defendant, James Stack, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, rendered on the 25th day of March, 1898, convicting him of the crime of robbery in the first degree.
    
      R. J. Haire, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   O’Brien, J.:

The defendant was indicted for the crime of robbery in the first degree, alleged to have been committed by him on the evening of December 19, 1897, in entering a drug store at 42 Pike street with another, assaulting the clerk in charge, and taking from the till about fifteen dollars. The defenses were an alibi and that the crime was committed by persons other than the prisoner; and there was some evidence tending to support these defenses. On the part of the People, the identification of the defendant as present and ■engaged in the commission of the crime consisted of the direct and positive evidence of two witnesses, corroborated by the fact that the prisoner after his arrest made inconsistent statements as to his whereabouts on the night when the crime was committed. The conflict arising upon the testimony was properly submitted to the jury; and in comparing the case made by the People with that of the defendant, it cannot be said that upon the merits it preponderates in the latter’s favor.

The circumstance is unusual that two persons should testify that they, and not the prisoner, were guilty of the crime. But their testimony must be weighed with the other facts appearing, that they had already been convicted of the crime and were self-confessed criminals, and that their statements were offset by the testimony of two credible witnesses who positively identified the defendant as •one of the men who had been engaged in the perpetration of the crime. Furthermore, the testimony of the inspector of police was very damaging to the defendant, he stating that the prisoner told him that on the night when the crime was committed, he was at a place called Callahan’s; ” whereas, on the trial, the prisoner and his witnesses said that he was at 35 Hamilton street, where he was .asleep the entire evening. And, according to the inspector’s testimony, the defendant admitted to him that he had made false statements as to his previous doings and whereabouts. To another officer, the prisoner said that he knew who committed the crime; and if by these words he did not mean to include himself, liis conduct when he was taken into custody was not consistent with that of an innocent man, because he drew his revolver apparently for the purpose of resisting the officers.

The case, therefore, as stated, was a proper one for the determination of the jury, and it follows that the judgment of conviction should be affirmed unless prejudicial errors were made'in the admission of evidence, or in the conduct of the trial or the charge of the court.

The contention most strenuously urged in behalf of the defendant relates to the refusal of the trial judge to permit his counsel to suspend the cross-examination of a witness in order to produce as witnesses the two men confined in the Tomhs — who it was claimed had alone been guilty of the crime — together with a copy of the indictment found against them at the instance of the People. We do not think that there is force in this contention. It was a matter entirely in the discretion of the court. And besides, on the subsequent day of the trial, the judge stated that the witnesses desired might be produced, and the defendant availed himself of the opportunity to examine them and had thus the .benefit of their testimony. Similarly it may be said with regard to three questions which were asked and excluded, because in this instance the witness was recalled and the questions were allowed on the subsequent' day cf the trial.

One other question, however, was not allowed ; and in excluding it we think the learned trial judge fell into error. We have already referred to the importance of the testimony as to the identification of the prisoner by those who claimed to have been eye-witnesses of the crime ; and, therefore, in the cross-examination of such witnesses the defendant was entitled to the greatest latitude. After the defendant’s counsel had asked the drug clerk whether he had ever seen Frederick Powers and had received the answer “ Yes, sir,”" he followed it up by the further question: “ Did you identify him as the man who held the revolver to your head % ” This question was excluded. We think that it might properly have been allowed, for although it is to be assumed that the reason for excluding it was that, it related to the identification, not of this defendant, but of another man, that other man, in this instance, was the one who it was insisted had been a participant in the commission of the crime. Strictly speaking, the ruling was erroneous; but it was not in any great degree harmful because full opportunity was given the prisoner’s counsel to cross-examine the drug clerk in reference to his identification of this defendant, and as to what part, if any, Frederick Powers played in the commission of the crime.

In considering this ruling as well as the others, we must be governed by section 542 of the Code of Criminal Procedure, which provides that After hearing the appeal, the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” Examining the record with this section as our guide, and in view of the full and clear charge made by the court in submitting the question of the defendant’s guilt to the jury, we do not think any error was committed which would justify our interfering with the verdict, and the judgment accordingly must be affirmed.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment affirmed.  