
    The People of the State of New York, Plaintiff, v. Patrick Callahan, Defendant.
    (Supreme Court, New York Special Term,
    September, 1911.)
    Examination of witnesses — Cross-examination — Test of knowledge. Where, upon the trial of defendant convicted of- burglary in the third degree, the assistant district aj^mey; upon the cross-examination of a witness who ha^l téSfified to the good character of defendant for.honesty, dskecl whether he did not know-that at a previous g^iQpKdtfendant was “ reputed to have\?bommitted grand larceny and beaten the case,” and the ^witness answered in the negative, but neither objection nor exception was taken, nor was the trial judge requested to admonish the jury as 'to the impropriety of the question and did not interfere, it cannot be said upon an application for a certificate of reasonable doubt that the obvious purpose of the question was to prejudice the jury against the defendant by giving the impression that although guilty of larceny he had by some corrupt or subtle method frustrated justice, as the wold “ beat ” might be used in the sense of winning.
    Application for a certificate of reasonable doubt..
    James A. Delehanty, Assistant District Attorney, for People.
    Clark L. Jordan, for defendant.
   Delany, J.

This is an application under section 52Y of the Code of Criminal Procedure for a certificate of reasonable doubt. The defendant was convicted of burglary in the third degree. The learned counsel for defendant asserts that the verdict was against the weight of evidence, but after a careful review of the case I have reached the conclusion that there is ample evidence to sustain the finding of the jury, and that no reasonable doubt can arise on that score. Hh advances, however, a claim that the conduct of the assistant district attorney who had charge of the prosecution was such as 'to cause a reasonable doubt as to whether the defendant was accorded a fair and impartial trial. The conduct about which he raises the question consisted in an alleged abuse of the right of cross-examination. A witness had testified to the previous good character of the defendant for honesty, and on cross-examination was asked this question: Don’t you know that in March,' 1910, this defendant Oallahan was reputed — you say you know his reputation — reputed to have committed grand larceny and to have beaten the case The question was answered in the negative, but neither objection nor exception was taken to it, nor was the court requested to give any admonition to the jury on the subject, nor was any motion made based upon the episode, nor did the court of its own motion interfere. Counsel for defendant argues that the obvious purpose of this question was to prejudice the jury by giving it the impression that the defendant, although guilty of the crime of larceny, by some corrupt or subtle method had frustrated the ends of justice. It is of course impossible to say how men‘sitting in judgment may be affected by what is said and done before them, and it is not within the contemplation of men to insure against prejudice arising from unintentional suggestion in such cases. The imperfection of nature and the complex constitution of the human mind make such a condition unattainable. A character witness, so-called, may properly be asked on cross-examination many questions which would be objectionable if directed to others, and this in order to test his honesty of «purpose as well as the credibleness of his testimony to the reputation of the accused, and in this State great latitude has been allowed in that respect. On this point may be cited the case of the People v. Levine, in which after affirmance in the Appellate Division (140 App. Div. 910) Mr. Justice Werner said: “ I think it was "entirely competent to ask those who had testified to the defendant’s good character whether they had ever heard of his having been previously arrested, or whether they had ever heard him called a 1 fence,’ which is the term commonly applied to people in the business of receiving stolen goods.” The immediate question in this case, therefore, is: Does the record show a sinister design in the conduct of the prosecuting officer as is attributed to him by the defense on this application, and did it produce the effect intended ? The only part of the question alleged to be objectionable is that the defendant beat the case ” — the charge of larceny. But may it be said that this necessarily implies that the defendant, though guilty, escaped conviction through unworthy means ? It may simply mean that he was acquitted. The word “ beat ” is used in several ways nowadays in the sense of winning. I grant that it is not an elegant use of our language, which in common speech is unfortunately so often debased; but my inquiry here is not into the purity of the term employed, but the meaning which it conveyed to the jury. Was it taken and intended to be taken by the jury in a sinister sense simply to prejudice the defendant, or was it used without any improper design merely to test the familiarity of the’ witness with the reputation to which she was testifying ? I do not think that I am warranted in assuming that the prosecuting officer departed from his duty and intended tó prejudice the jury, nor that the question had that effect, in view of the fact that the record does not show, as above indicated,- that either at the time when the question was asked or at any other stage of the trial -did the court or counsel for the defendant appear to be affected by it, or deem it necessary to record dissent or to attempt to remove any impression unfavorable to the defendant produced by it. It would be most natural if any harmful insinuation was involved in an equivocal question that something in the case would disclose it to a reviewer. '

Ordered accordingly.  