
    The People of the State of New York, Plaintiff, v. George H. Bushnell, Defendant.
    (Supreme Court, New York Special Term,
    July, 1901.)
    Crimes — Certificate of reasonable doubt — Admission of improper evidence.
    • Where a witness for the prosecution is permitted to give evidence on the trial of an indictment of conversations, had by him with the defendant five months after the commission of the crime named in the indictment, in which the witness charged the defendant with the commission of similar crimes with other persons as well as with other and different offenses — to which charges, it seems, the defendant made no reply — the admission of such incompetent evidence creates such a reasonable doubt as to the legality of the defendant’s conviction as justifies the issue of a certificate of reasonable doubt whether the judgment should stand.
    Application for a certificate of reasonable doubt whether a judgment convicting the defendant should stand.
    Amos H. Evans, for motion.
    E. A. Philbin, District Attorney, opposed.
   McAdam, J.

Assuming that the evidence adduced on the trial of the indictment justified the submission to the jury of the question whether the testimony of the alleged accomplice was sufficiently corroborated, the further question, whether irrelevant and immaterial testimony prejudicial to the defendant was not admitted, over due objection and exception, remains to be considered. The testimony claimed by the moving party to have been improperly admitted consisted of a conversation had by the witness Comstock with the defendant at the witness’ office, where the defendant called at Mr. Comstock’s request. The said witness was allowed to state all the conversation he had with the defendant at that place. The witness, in the conversation detailed by him on the stand, not only testified to admissions made by the defendant with respect to the crime charged in the indictment, but also testified that he accused the defendant of committing the crime charged in the indictment at other times and with other persons than those mentioned therein; that the defendant’s wife had called at the witness’ office and made statements concerning criminal acts other than the one charged in the indictment, which statements the witness had investigated and was satisfied they were true; and the witness further testified that in the said conversation he told the defendant that the defendant had been arrested and convicted in the Jefferson Market Police Court; that the defendant was guilty of traducing the defendant’s wife in the most scandalous manner; that the defendant had taken $1,500 of her money and the witness could prove it by the defendant’s checks and the stubs of his check-books; that the defendant’s wife had been true and loyal to him until she discovered his gross conduct; that the defendant had been arrested at one time in Syracuse for the same charge made in the indictment; that the defendant had the reputation of being a person guilty of the species of crime for which he was on trial, and that unless he reformed, the witness would take criminal proceedings against him. All this conversation, which occurred nearly five months after the commission of the offense charged in the indictment, appears to have been admitted in evidence- on the theory that the statements made by the witness in the conversation were relevant as admissions of the defendant. An admission is a statement suggesting any inference as to any fact in issue, or relevant or deemed to be relevant to any such fact, made by or on behalf of any party to any proceeding.

Chase’s Steph. Dig. (2d ed.) 57. If the defendant had admitted or confessed to the witness Comstock, or to anybody else, that he had committed other crimes similar to the one charged and had a tendency to commit such crimes, could evidence of such admission or confession have been properly received ? Plainly not. See People v. Sharp, 107 N. Y. 427; People v. McLaughlin, 150 id. 365, 386. And there is no logical reason why a different rule should be applied to a so-called admission by acquiescence from that applicable where an admission is expressly made. The witness Com-stock was not only allowed to testify to the defendant’s admission or confession, in the proper sense of that term, but he was permitted to give hearsay and opinion evidence and testimony of acts similar to, but not specifically connected with, the offense charged —(res inter alios actae). As the natural effect of such testimony on the jury was prejudicial to defendant (see People v. Kennedy, 164 N. Y. 455), I entertain a reasonable doubt as to whether the defendant was legally convicted of the heinous crime charged, and, therefore, grant the certificate applied for.

Application granted.  