
    Supreme Court. Appellate Division, Third Department.
    June, 1904.
    THE PEOPLE v. LORING MOORE.
    (96 App. Div. 56.)
    Trial—Witness—Accomplice.
    Where, upon the trial of a person accused of the crime of grand larceny, the prosecution’s case rests upon the testimony of an all eg. ed accomplice of the defendant, evidence that the accomplice had been told by his attorney that, if he admitted his guilt and told what he knew about the defendant he would be allowed to plead guilty to a lesser crime, is competent for the purpose of showing a personal interest in the accomplice to testify against the accused, affecting his credibility, even though it does not appear that the accomplice’s attorney had received permission from the district attorney to make such a promise.
    Appeal by the defendant, Loring Moore, from a judgment of the County Court of Saratoga county in favor of the plaintiff, rendered on the iyth day of November, 1903, and entered in the office of the clerk of the county of Saratoga, convicting the defendant of the crime of grand larceny in the first degree, and also from an. order bearing date the 17th day of November, 1903, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      John H. Gleason and Edward Hassett, for the appellant.
    Horace E. McKnight, for the respondent.
   Parker, P. J.:

The defendant was indicted for the crime of grand larceny and brought to trial at a term of the Saratoga County Court. He was convicted upon the evidence of an accomplice, and we are satisfied that such evidence was sufficiently corroborated under the provisions of section 399 of the Code of Criminal Procedure to warrant a conviction. The serious question presented, however, arises upon an exception taken by the defendant’s attorney to the exclusion of certain evidence offered by him upon the trial, and which arose in the following manner: The accomplice, Panneton, being upon the stand as a witness, was asked the following questions by the defendant’s attorney, to which the following answers and ruling were had, to wit: “Q. Did you ever say to anybody that Moore was a party to this crime after the commission of the crime, or that Moore had anything to do with it, or that Moore planned this crime or had anything to do with it before its commission? Did you ever, at any time after the commission of this crime, tell anybody that Moore was a party to it or had anything to do with it ? A. No. Q. And when is the first time you did say that ? A. I don’t know just when it is; but it is when I explained to my attorney the whole case. Q. Ever tell the district attorney that? A. Never had no conversation with the district attorney. Q. Did your attorney tell you, if you did admit this and told what you knew about Moore, if anything, that you would be allowed to plead guilty to a lesser crime? [Objected to as calling for a confidential communication between attorney and client.] The Court. Do you propose to connect any statements from Mr. Meigher with the district attorney? Mr. Andrus : We want to show it. The Court. Do you intend to do it in good faith? Mr Andrus: That is my intention. The Court: Have you any witnesses to testify to that? Mr. Andrus. None whatever. The Court: I will exclude it then. [Exception.]”

The inquiry as to whether the witness was told by his attorney that, if he admitted his guilt and told what he knew about Moore, he would be allowed to plead guilty to a lesser crime was not obnoxious to the objection that it was a confidential communication between attorney and client, nor does the court seem to have excluded it upon that ground.' It was evidently excluded upon the theory that, because his attorney had not acquired permission from the district attorney to make such a promise, it was not a statement which should be allowed to affect the witness’ credibility In this we think the learned court erred.

Even though the attorney had no instructions from the public authorities to make such a promise, it is clear that, if made, it may have induced the witness to testify against the defendant Moore. It cannot be presumed that he gave no credit to his attorney’s promise; on the contrary, the presumption is that he would believe what his attorney promised and assumed to know about, and hence that he was testifying under the expectation of gain to himself. And such an expectation very clearly would affect his credibility. Evidence tending to show a personal interest in the witness to testify against the prisoner is clearly competent evidence and should not be excluded. (People v. Christy, 65 Hun, 349, 352; Allen v. State, 10 Ohio St. 287,)

How far this personal interest in the witness would have affected his credibility with the jury we cannot say. The evidence was competent and material and affected a substantial right. It was error, therefore, which we cannot disregard. (People v. Strait, 154 N. Y. 165, 171.)

The judgment must be reversed and a new trial ordered.

All concurred.

Conviction, order and judgment of the County Court of Saratoga county reversed and a new trial ordered, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to such County Court pursuant to sections 547 and 548 of the Code of Criminal Procedure.  