
    William H. Smith, Resp’t, v. Watson Mulford, Marshall Francis and Dwight Brandon, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1886.)
    
    Witness—Cross-examination—Questions to impair credit—What allowed—As TO ARREST, NOT ALLOWABLE.
    On cross-examination a witness testified that he had been arrested. To the question on what charge he had been arrested, defendants objected. The evidence was offered with reference to the character of the witness. Held, that on cross-examination specific acts, within the discretion of the court, may be inquired into to impair the moral character of the witness, but that accusations cannot. That an arrest is only an accusation. That the admission of the question respecting the arrest did not prevent the defendants from objecting to further irrelevant testimony.
    
      Hallock, Jennings & Chase, for resp’t; A. C. Griswold, for app’lts.
   Learned, P. J.

This is an action to recover damages for assault and battery, alleged to have been committed by Mulford, Francis & Brandow. There is no doubt about the affray. The principal matter in dispute was whether plaintiff or defendants commenced the fight.

Mulfold was called as a witness in behalf of himself and the other defendants. On cross-examination he testified that he had been arrested, but how many years ago he did not know. Then he was asked by plaintiff’s counsel; “What was the charge?” Defendants objected. Plaintiff’s counsel stated that he offered this evidence with reference to the character of the .witness. The objection was overruled. Defendants excepted. And the witness answered and told what, the charge was. The defendants claim that this was error.

Undoubtedly decisions have been conflicting on this point. But the case of People v. Irving (95 N. Y., 541), seems to hold that on cross-examination, specific acts, within the discretion of the court, may be inquired into, tending to impair the moral character of the witness; but that accusations cannot. Such is the doctrine of People v. Crapo (76 N. Y., 288), Ryan v. People (79 id., 594), Kober v. Miller (45 Sup. Ct. [38 Hun], 184).

This distinction seems to be logically sound. An arrest is only an accusation. Every one presumed to be innocent till he is proved to be guilty. To use the fact of an arrest as a ground of discrediting a witness may be logically to presume him guilty until proved to be innocent.

The case of Connors v. People (50 N. Y., 242), is cited by the plaintiff as being directly in point. But in People v. Crapo, ut supra, the learned judge who wrote the opinion in Connors v. People speaks of that case and of Brandon v. People (42 N. Y., 269), and says that the question of relevancy on the point of credibility was not presented. So that the case of People v. Crapo must be considered to overrule ánything incidentally said in those earlier cases.

The plaintiff further urges that the witness had already stated that he had been arrested. But this did not prevent the defendants from objecting to any more irrelevant testimony.

It seems to us that under the late decisions to which we have above referred the testimony was inadmissible. • At the same time we think it would be better to leave this range of questions to the discretion of the trial judge. That the witness had been arrested was a part of the history of his life as much as that he had lived at such a place. No real harm was done by the admission of this evidence. The witness could have explained that he was falsely accused and wrongfully arrested, if the facts were so. - And whether he explained or not, any judge who has tried cases knows that practically it would make no difference with the verdict of the jury that this witness stated that he had been arrested and mentioned the ground of .arrest.

These nice distinctions as to what may, and what may not, be given in evidence on such a cross-examination are of no practical use and really do harm. _

_ But we are compelled to reverse the judgment and grant a new trial, costs to abide event.

Bocees and Lardón, JJ., concur.  