
    The People of the State of New York, Respondent, v. James D. Hallen, Appellant.
    
      Criminal trial—improper statements by the district attorney—not reversible error when incited by the pi'isoner who is clearly shown to be guilty — a letter by the prisoner showing him to be guilty of other offenses is incompetent.
    
    Improper and reprehensible statements, made by an assistant district attorney while conducting a prosecution for forgery, do not warrant the reversal of the conviction, where it appears that the guilt of the defendant, who conducted his own defense, was clearly demonstrated, and that he deliberately adopted a course of conduct towards the court and the witnesses planned with a view to obtaining exceptions on which he might secure a reversal, and where the court, both during the progress of the trial and in its charge, observed the greatest care to protect the defendant from being prejudiced by the improper remarks.
    
      It seems, that a letter purporting to be written by the defendant to the district attorney, from which it appeared that he was guilty of many offenses and that he was a fugitive from justice, is incompetent; but its admission does not constitute a reversible error where it appears that it was not harmful, both the facts adverted to being proven by other testimony, and no attempt being made to disprove them.
    Appeal by the defendant, James D. Hallen, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 5th day of January, 1899, convicting him of the crime of forgery in the first degree.
    
      I. W. Lansing, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   O’Brien, J.:

The defendant was indicted upon two counts, one for forging and the other for uttering a forged mortgage for $16,500; and upon the latter count of uttering the forged instrument he was convicted. That the mortgage was forged, and that by means of it Mr. and Mrs. Cauldwell were cheated out of the $16,500 which they gave to tbe defendant on the faith that the mortgage was a valid and subsisting security upon property situated on West End avenue, are not disputed. Although evidence was introduced to connect the defendant with the actual forging, the jury deemed it of insufficient weight, and failed by their verdict to convict the prisoner upon the first count of the indictment. The other count, however, that well knowing the mortgage was forged, he deliberately and fraudulently palmed it off on the Cauldwells, was sustained ; and there cannot be, upon this record, the slightest doubt as to the justice of the verdict.

We, therefore, must approach the consideration of the questions-presented on this appeal, firmly impressed with the assurance that the defendant, a lawyer, who was trusted by the Cauldwells, deliberately violated that trust, and, for the pmqoose of cheating and defrauding them out of $16,500, gave them, as he was forced to concede, a forged mortgage. That the defendant was clearly guilty of the crime charged of uttering a forged instrument is demonstrable from his own evidence; and it is established beyond a shadow of doubt by the entire record. It would be a public calamity, therefore, if for technical reasons he should escape the punishment which lie has justly deserved and is now undergoing. His life, on his own confession, has been an ill-spent one, and his talents and energies have been devoted to cheating and defrauding others; and now that he-has finally been convicted, he should not be permitted to escape upon purely technical exceptions.

The Code of Criminal Procedure provides that the court, on an appeal, shall disregard technical errors which are not prejudicial to the rights of the person convicted (Code Grim. Proc. § 343), and, therefore, unless the errors which it is claimed were made during the conduct of the trial are of such a character as to prejudice the prisoner’s rights, the judgment should be sustained.

It is asserted that errors were committed in improperly admitting evidence and in rejecting improper evidence; but the error alleged upon which most stress is laid is in the mode of conducting the trial pursued by the assistant district attorney in interjecting extraneous and unjustifiable statements. These were clearly improper and reprehensible, but we are convinced that nothing that lie said or did added to the strength of the case presented, which clearly demonstrated the defendant’s guilt. The only palliation for the course pursued by the assistant district attorney consists of the fact that the defendant, who was conducting his own defense, and who was no-doubt convinced that he could not escape himself, adopted a course towards the court, and the witnesses, which was evidently deliberately planned with the view of obtaining exceptions to rulings upon which, when convicted, he might rely for a reversal.

We do nut think, however, that the bad example thus set by the prisoner while conducting his own defense should have been followed by the assistant district attorney, or that the latter should have permitted himself to exceed the reasonable bounds fixed, not alone for the prosecuting attorney, but for every counsel engaged in the conduct of a trial. Statements and characterizations which, if an attempt were made to prove them, would have been rejected by the court as irrelevant and incompetent, should not be interjected in colloquy between counsel and the court, because their evident tendency is to divert the attention of the jury from the evidence and create an atmosphere entirely foreign to that orderly and regular procedure which should prevail at every trial in a court of justice. As was held by the court in People v. Fielding (158 N. Y. 542): The prosecuting attorney, in a criminal case, should put himself under proper restraint, and should not, in his remarks to the jury, go beyond the evidence or the bounds of reasonable moderation ; and if he lays aside the moderation that should characterize his official action, and by vituperation of the defendant and appeals to prejudice seeks to procure a conviction at all hazards, he ceases tojproperly represent the public interest,” and this is error which requires a reversal on appeal.

In that case the conduct objected to occurred during the summing up of the evidence before the jury, and was more flagrant and prejudicial than the conduct of the prosecuting attorney here, which consisted principally of occasional remarks made during the course of the trial. The cases are distinguishable by the fact that in the present instance the learned trial judge observed the greatest care in removing the effect of these statements, both during the progress of the trial, and again in his charge at its close, by telling the jury that they must disregard such remarks and be controlled entirely by the evidence. The care taken by the court in correcting the statements and in protecting the prisoner’s rights remove this ground of complaint.

The appellant further insists that it was error to admit in evidence a letter, introduced during the testimony of an expert on handwriting, and purporting to be written by the prisoner, and directed to the district attorney, which, in substance, confessed that the defendant was guilty of many offenses, and which, if credited, showed that, at the time it was written, he was a fugitive from justice. Although, strictly speaking, the letter was incompetent, its admission was not harmful for the reason that both facts adverted to in it were proven by other testimony in the case, and no effort was made by the defendant to disprove them. On the contrary, his efforts seem to have been directed to goading the prosecution into proving him guilty of other crimes with a view, undoubtedly, were the attempt made to do so, to thereon hang a valid exception to such proof. This feature of the defendant's conduct during the trial in the management of his defense, seriously militates against giving the weight which would otherwise be necessary to his exceptions taken to incompetent testimony. Thus his attempt to surreptitiously get before the jury a paper relating to the handwriting of the forged signature of the mortgage and his colloquies with the court and the prosecuting attorney, when most of the statements objected to were made, give rise to exceptions for which the prisoner was largely responsible, and which were the result of what was seemingly a deliberate effort on his part to have the trial take such a course that a conviction could not be sustained.

Another error claimed was in the ruling made upon the question of whether the forgery was one executed by a man named Elkins, or by the defendant. On this subject, however, the alleged errors could not be harmful or prejudicial for the reason that the jury did not convict the defendant on the first count of the indictment which charged him with having forged the mortgage, but on the second count, for uttering it.

There are other errors assigned, none of which are so serious as those discussed, some of them being technical in the extreme and having little or no possible bearing upon the conclusion reached by the jury.

Upon this record, therefore, we are of the opinion that notwithstanding the difficulty encountered by the trial judge in keeping the counsel within proper bounds, the defendant had a fair trial in which his legal rights were protected; and that the judgment of conviction should be affirmed.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed.  