
    The People, Resp’ts, v. James Doyle, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    1. Criminal law—Remarks op prosecuting attorney.
    The prosecuting attorney has no right to advert in any manner upon the question whether defendant would become a witness either in his summing up or in his opening.
    2. Larceny—Evidence—Supplementary proceedings.
    In a prosecution for larceny it is error to admit in evidence the examination of the defendant in supplementary proceedings taken upon a judgment recovered for the money which is the subject of the indictment.
    3. Same.
    The indictment charged defendant with larceny in drawing from a bank certain moneys claimed to belong to an estate. It appeared that testator placed the money in bank in the names of himself and defendant, and it was claimed that defendant had the bank books from that time. He offered to show by the testimony of his wife declarations of testator that he had made a gift of the money to defendant. This testimony was excluded. Held, error ; that the evidence was pertinent upon the question of the intent with which defendant possessed himself of the money.
    
      Appeal from judgment of the court of general sessions convicting the defendant of grand larceny in the first degree.
    
      J. R. Henzleman, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The manner in which the assistant district ■attorney conducted the prosecution of this case was certainly of a •character which'should call for the censure of the court, and which requires a reversal of the conviction. In his opening of the case he states to the jury that he was curious to know whether the -defendant would go upon the stand since he had found Lee and have anything to say about how much money he spent with Lee; that the defendant might listen to prudent counsel and not go on the stand.

To these remarks the counsel for the prisoner objected and excepted ; and called the attention of the court .to them, but all that was done was, the court ordered his objection and exception to be noted.

It is quite well settled that the prosecution have no right to predicate anything upon the refusal of the defendant to go upon the stand. In the case of Ruloff v People, 45 N. Y., 222, the court in adverting to this subject say, “ neither the prosecuting officer nor the judge has the right to allude to the fact that the prisoner has not availed himself of this statute; and it would be the duty of the court peremptorily to interrupt a prosecuting counsel who should so far forget himself and the duties of his ■office as to attempt to make use of the fact in any way to the prejudice of a prisoner on trial. An allusion by the judge to the fact unexplained cannot but be prejudicial to a prisoner on trial ; •and a provision intended for his benefit would prove a trap and snare. It is an intimation to the jury of the effect upon his mind of the omission of the accused to explain by his own oath suspicious and doubtful facts and circumstances as affecting the ■question of guilt or innocence.”

The remarks made by the assistant district attorney to cfhe jury were a challenge to the defendant which compelled him to go upon the stand, or the fact of his refusal would necessarily be considered by the jury to his prejudice. This the attorney had no right to do. He had no right to advert in any manner or way upon the question as to whether the defendant would become a witness. And if he had no right to suggest the fact in his summing up, he had no right to press it upon the minds of the jury at the opening of the trial. It does not appear that there was any attempt upon the part of the learned judge presiding to repair the damage done by cautioning the jury in this regard. All that the defendant received was the notation upon the record of an objection and exception.

It seems to us that the action of the assistant district attorney was a clear violation of law which was prejudicial to the defendant, putting him in a false position before the jury and compelling him to testify when otherwise he might not have done so. The gravity of this error is enhanced by the course of the testimony, because we find that this defendant had. been examined in supplementary proceedings upon a judgment obtained against him to recover the very money which is the subject of this indictment. And evidence as to w'hat he testified to upon this examination was offered. It is true it was not objected to, but it was clearly improper and incompetent, as such evidence could not by the provisions of § 2460 of the Code of Civil Procedure be used against, him in a criminal action or a criminal proceeding. If it were not for the exemption contained in this section a party might shield himself always in supplementary examinations where there was-any question of fraud by claiming his privilege, and it was to avoid the failure of justice by reason of this claim that it was enacted that evidence given under these circumstances should not be used against the witness.

There is, however, another question raised by an exception where evidence seems to have been improperly excluded. One of the vital questions in the case was as to the relations of William Doyle and the defendant in respect to certain moneys which belonged to William Doyle and which he had deposited in certain savings banks. It was in evidence that William Doyle had changed these deposits from his own individual name to that of himself and the defendant and.in respect to one deposit he opened, a new account in his name in trust for the defendant.

It was claimed by the defendant that the bank books were delivered to him and he had charge of them from that time until he drew out the money after the death of William. The wife of the defendant was being examined upon the part of the defendant and she stated that she remembered a conversation between William Doyle and herself in the last days of July or first of August, 1885, in reference to her husband and some bank books, and that her husband was not present when they had that conversation. She was then asked this question:, “State the conversation which you then had with William.” This question being objected to, the counsel for the defendant stated that he intended to prove by the witness declarations of William Doyle, to the effect that he had in his lifetime made a gift to the defendant of the money which the defendant was charged with misappropriating. The objection was sustained and the evidence excluded. This seems to have been material testimony upon the question which has already been suggested. Apart from the legal rights, of the parties, it was necessary to establish upon the part of the-prosecution a felonious intent upon the part of James Doyle in the drawing and using of this money. If William Doyle had attempted to make a gift of this money to James Doyle, and James Doyle had innocently believed that such gift had been made and had acted upon that belief in the drawing of the money, then the-felonious intent necessary to make a crime would be absent, even though as against the heirs of William Doyle the gift may have been ineffectual. Whether such a gift could be effectual or not it is not necessary to determine. The evidence, certainly, was pertinent upon the question of the intent with which James Doyle. possessed himself of this money, and he should have had the benefit thereof.

Upon the whole case, therefore, we think that the conviction should be reversed and a new trial ordered.

Barrett, J., concurs.

Bartlett, J.—I concur upon the first point discussed in the opinion.  