
    The People of the State of New York, Respondent, v. Burton C. Webster, Appellant.
    Where evidence is admitted upon the trial of a criminal action, not bearing directly upon the main issue, but having only an incidental relation to a material fact, it is both the province and the duty of the trial court to clearly state the limitations of its scope and application to be observed by counsel and jury.
    Upon the trial of an indictment for murder defendant admitted the homicide, but pleaded justification, as done in self-defense. It was claimed by the defense on trial that the deceased had made improper advances to the wife of defendant. Evidence was received that she made statements to that effect to him just prior to the homicide; but evidence showing the truth of the statements was excluded, the court stating in substance that no wrong done by the deceased to the wife was available as a justification, but that if the defendant had been informed and believed that the wrong had been committed, this might be considered in determining the motive and intent of his actions.
    
      Held, no error.
    Evidence offered by the prosecution to show the general reputation of the deceased for peace and inoffensiveness was excluded, the court saying that his general character was not in issue ; that whether he was of good or bad character was no justification for the homicide, and that so far as the guilt or innocence of the defendant was concerned the jury must assume that the deceased was a man of irreproachable character. The dying declarations of the deceased had been given in evidence. Defendant’s counsel excepted to the remarks of the court, stating that the dying declarations were disputed, and in that respect the character of the deceased was in issue. No proof was offered by defendant impeaching the character of the deceased. Held, that the exception was not tenable.
    A photograph of the deceased was admitted in evidence, under a general objection. Subsequently, in response to a question by a juror, the court stated that the photograph was admitted for the consideration of the jury in determining as to whether they believed defendant was in danger at the time of the homicide. Exceptions were, then taken to the reception of the photograph for this purpose. Held,, untenable ; that where self-defense is the plea on such a trial the physical characteristics of the person slain are proper matter of proof; and that, as allowing them, the photograph was properly received.
    The prosecution was permitted to show on cross-examination of tin-defendant, the circumstances under which he met the woman claimed to he his wife, and the kind of life she was then leading. Held, no error.
    A defendant in a criminal action offering himself as a witness, is not exempt from the operation of the rule, that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may he compelled to answer unless he claims his privilege; he is a witness for all the purposes for which a witness may lawfully he examined in the case.
    The extent to which such disparaging questions may he put. is discretionary with the trial court, and its rulings are, not subject to revie.w here, unless it appears that the discretion ivas abused.
    It was objected that the evidence, should have been excluded because it tended to implicate the defendant's wife, who had been a witness in his behalf, and thus it tended to impeach her in an unauthorized way. Held, untenable; that any apprehended misuse of the evidence might have been avoided by asking and obtaining an instruction to the jury that it was only to be considered in determining the credibility of the defendant.
    The prosecution was permitted to show that It., one of the principal witnesses for the defense, who was ostensibly in the employ of the proprietor of the flat in which defendant lived, had become devotedly attached to him and his wife, and was at the time of the homicide, practically one of his household, and that, their relations were intimate and confidential. Held, no error.
    The witness R., in answer to questions put to her on cross-examination, denied that she had ever stated to the housekeeper of the flat that she used to go with defendant’s wife to hunt him up, and remained outside of a place of amusement for two hours at a time, while the wife was hunting him up. The housekeeper was then called as a witness for the. prosecution and was permitted to testify, under objection and exception, that R. did so state to her. Held, no error.
    The housekeeper was also permitted to testify that It.. while employed in the flat, was an habitual opium eater, and was many times under the influence of the drug, and that- she had told witness that she could not leave off the habit or she would go mad. R. had admitted on cross-examination that she was in the habit of taking opium, but denied having made the statement to the housekeeper. Held, that the recep tion of the evidence was not error.
    Reported below, 68 Hun, 11.
    (Argued June 5, 1893;
    decided October 3, 1893.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 17, 1893, which affirmed a judgment, of the Court of Oyer and Terminer in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of manslaughter in the first degree. The facts, so far as -material, are stated in the opinion.
    
      William F. Howe for appellant.
    The rule is that it is not for the court to say that errors complained of might not have affected the jury, but the court must be satisfied that the jury could not in any event be affected by tlie evidence or criticisms. (McKenna v. People, 81 N. Y. 360; Lambert v. People, 76 id. 220; People v. Weed, 126 id. 249.) During the entire trial, including the charge, prejudicial criticisms were made by the court below, and for this reason the judgment should be reversed. (Sindram v. People, 88 N. Y. 196.) The defendant was called as a witness in his own behalf. His cross-examination mainly related to the conduct of Ms wife prior to his marriage to her. It was sought by the People to create a prejudice against the defendant by claiming that his marriage to her was in the common-law form, and that prior to her marriage she was of unchaste character. This was improper and irrelevant. (Comm., v. Shaw, 4 Cush. 593; People v. Genet, 19 Hun, 102.) The examination of Hannah Wade was error, as the People were bound by the answers given in the cross-examination ■ of the witness Romaine. (Stokes v. People, 53 N. Y. 175; People v. Ware, 92 id. 653; Chapman v. Brooks, 31 id. 87; Carrpenter v. Ward, 30 id. 243; People v. Wood, 126 id. 249.) The charge of the court was not. in accordance witli the law upon the subject of self-defense. All the law requires is that the defendant should act upon the reasonable appearances, and if, from those appearances, he reasonably believed his life to be in danger, although no danger in fact existed, he was still justified in defending himself, even to the extent of taking life. (Evers v. People, 3 Hun, 716; Shorter v. People, 2 N. Y. 193.) The charge of the court with reference to defendant’s good character was incorrect. (Remsen v. People, 43 N. Y. 6; U. S. v. Hamilton, 2 Cent. Rep. 673.)
    
      Henry B. B. Stapler for respondent.
    The evidence shows that the defendant was guilty of, at least, the crime of which this record shows he was convicted, and there is, therefore, no room for the contention that the verdict is against the weight of evidence. (Penal Code, §§ 179, 189; Shorter v. People, 2 N. Y. 193; People v. Sullivan, 7 id. 396.) The exceptions taken by the defendant to the rulings of the trial court on the admission" or exclusion of’ evidence present no error's to the attention of this court. (People v. Chacon, 102 N. Y. 669; People v. Smith, 104 id. 791; People v. Main, 9 Hun, 113; 1 Bishop on Crim. Ev. § 1212; Whart. Crim. Ev. [9th ed.] §§ 282, 376 ; People v. Brooks, 131 N. Y. 325.) Exception was taken to the admission of the photograph of deceased in evidence. Here, it is submitted, was no error. (Alberti v. R. R. Co., 118 N. Y. 77; People v. Jackson, 11 id. 362; Archer v. R. R. Co., 106 id. 589; Cowley v. People, 83 id. 465 ; Walsh v. People, 88 id. 458, 464; Walker v. Curtin, 116 Mass. 98.) There was no error in the cross-examination of the defendant, and of the witness Fannie Eomaine. (People v. Tice, 131 N. Y. 651; People ex rel. v. Oyer & Terminer, 83 id. 436, 460; People v. Brown, 72 id. 571; Ryan v. People, 79 id. 594; La Beau v. People, 34 id. 230; People v. Casey, 72 id. 393; Connors v. People, 50 id. 240; Brandon v. People, 42 id. 265 ; Southworth v. Bennett, 58 id. 659 ; People v. Brooks, 131 id. 321, 329; People v. Hovey, 92 id. 554; People v. Guidici, 100 id. 503; People v. Donovan, 101 id. 632.) It is further submitted that even had there been any technical error disclosed by the record in the admission or exclusion of testimony, in view of the fact that the jury, by their verdict, accepted the facts as claimed by the defendant and his witnesses, and accorded to, them full faith and credence, and adopted the most favorable view possible of those facts, it cannot be seriously claimed that any such technical error could have been injurious to the rights of the defendant. (Code Crim. Pro. § 542; People v. Bliven, 112 N. Y. 79, 92; People v. Dimick 107 id. 13, 35 ; People v. Gonzales, 35 id. 49; People v. Fanning, 131 id. 663.) The charge of the learned justice who presided at the trial was correct, and his comments upon the testimony did not injure defendant. (Sindram v. People, 88 N. Y. 169; People v. Carpenter, 102 id. 238; People v. Fanning, 131 id. 663 ; People v. Conroy, 97 id. 77; Foster v. People, 50 id. 609.) The evidence in the case wras most complete and satisfactory, and it is submitted that out of the proceedings in this cause there arises no error demanding that the verdict of the jury should be disturbed. (Code Crim. Pro. § 542.)
   Maynard, J.

The defendant was tried at the New York Oyer and Terminer, upon an indictment charging him with the crime of murder in the first degree, in killing Charles E. Goodwin, on August 2nd, 1891. The jury convicted him of manslaughter in the first degree, and he was sentenced to imprisonment for the term of nineteen years. He admitted the act of homicide, but plead that it was justifiable on the ground of self-defense.

The defendant and deceased occupied rooms upon the same floor of the Pereival flat in 42nd street, Hew York city. The latter was unmanned, and the former was cohabiting with a woman, with whom a marriage ceremony had not been solemnized, but he claimed that a civil contract of marriage had been entered into between them in the month of January of the same year. It appears from his admissions on the trial, that he had previously married another woman, and it was not shown that the former marriage had been in any lawful manner dissolved.

The defendant’s version of the homicide was, that upon the evening of its occurrence, he came to his rooms and found his wife, who was then pregnant, attended by one Fannie Eomaine, a servant in the employ of the janitor of the fiat; that she' seemed to be ill, and' during their conversation she complained to him about the conduct of the deceased, stating that he had made improper advances to her and indecently exposed his person in her presence, and in other ways behaved in an unbecoming manner, and that while the defendant was away she dare not go into the hall through fear of encountering him, and that her present sickness, which was likely to result in a premature birth, was caused by his annoyances. While they were talking the deceased knocked at the door, which was opened by the defendant, and the former, apparently surprised at finding him in, addressed him with an oath and struck at him with his hand, just grazing the face, and causing a slight scratch, and then retreated to his own room, forty-nine feet distant, where he was followed by the defendant, who entered the room and remonstrated with him about his conduct; that the deceased greeted the defendant with oaths and curses, and seized a cuspidor and was in the act of throwing it at him,.when, believing that he was in imminent peril of his life, he drew a pistol and shot him in a vital part, from which death ensued in a few hours. The defendant’s wife and the woman Eomaine were witnesses in his behalf. They claim to have immediately followed him to the deceased’s room, and to have witnessed the homicide, and they gave substantially the same account as the defendant of the occurrence. The People challenged the truth of the testimony of these three witnesses for the defense, and insisted that it was fabricated in every material respect, and that it was the product of a conspiracy to shield the defendant from the consequences of his crime by falsehood and perjury. The theory of the prosecution was that the defendant deliberately went to the deceased’s room for the purpose of killing him, and found him engaged in writing a letter, and, without any lawful provocation, instantly shot him. This view was supported by the dying declaration of Goodwin, and by many circumstances of a most convincing character.

It is not. the province of this court to decide between these conflicting theories. It, is sufficient that there was some evidence to support both, and it was the office of the jury to say which had been established by satisfactory proof, or whether each might not be partly true. Mor can we determine the grounds upon which they rested their verdict. We are bound to assume it. was the result of conclusions or inferences, legitimately draAvn from some competent eAtidence in the case, but it is beyond our ken to discern the particular process by which they arrived at their verdict. It cannot, therefore, be said that because the defendant was not convicted of the crime of murder in the first degree, but of a lesser offense, the jury disregarded the evidence of the prosecution, and gave credence only to that of the defendant’s Avitnesses. The facts upon Avhich the People relied may have given rise to different, inferences in their minds than those Avhich the district attorney sought to draw from them, and they may have accepted in part the account of the homicide giA-en by the defendant and rejected other portions Avhich they deemed unworthy of belief. The only thing which can properly be affirmed of their verdict is that they found that the defendant killed the deceased in the heat of passion by means of a dangerous weapon, and not AAÚtli premeditation or deliberation, or with an intent to effect his death, and that they rejected the claim of the defendant that he did it in laAvful self-defense.

It follows that if errors Avere committed in the reception of evidence, materially affecting the credibility of the defendant’s witnesses, or in the comments of the court upon the trial, they must be revieAved and considered, for Ave are unable to say that if they existed they did not prejudice the defendant or affect the verdict of the jury.

The first exception to be noticed relates to the reasons given by the court for the admission and rejection of certain evidence in regard to the conduct of the deceased towards the defendant’s wife, and the communications made to the defendant by her with respect to such conduct. The defendant was permitted to show what she had told him upon this subject, upon the evening of the homicide, and previously, but lie wras not allowed to prove by his wife or others, that the deceased had actually been guilty of the offenses complained of. There was a prolonged struggle between the prosecution and the defense as to where the line should he drawn in determining the question of the admissibility of this evidence. In disposing of this question the remarks were made, to which the exceptions have been taken. The trial judge correctly defined in plain and vigorous language the rule of law which should control in the reception and application of such evidence. Lie stated, in substance, that no conduct of the deceased justified the defendant in murdering him; clearly referring to the alleged improper and lascivious behavior of the deceased towards the defendant’s wife ; and that a man could not justify the killing of another because he disapproved of his previous conduct. When the wife was under examination, a discussion arose whether she should be permitted to state what the deceased did when the defendant was not present, and the court, in excluding it, said that she might state what she told the defendant that the deceased had done; but could not state whether the deceased had, in fact, done the things referred to; that it was entirely inmaterial whether he had or not; that if he had so misbehaved himself it was no justification for murder, and the defendant could not escape the consequences of his own act, because of any act of the deceased done prior to the killing: that the law of this state did not authorize or justify any man in taking the law into his own- hands and slaying another because he has, or imagines he has, received an insult; that the witness might state any communication she made to the defendant at or about the time or shortly prior to the occurrence as to anything that the deceased did; that the only-material thing was the communication, and it was entirely inmaterial whether the things disclosed actually happened. Substantially the same remarks were repeated when the defendant was examined and permitted to state what his wife had told him about the deceased; and the court then also stated that the jury must not consider the question whether the communications made by the wife were true; that they were admitted only to show the condition of the defendant’s mind when he fired the shot. It is not now claimed that any error was committed in the reception or rejection of evidence upon this point; but it is insisted that these remarks were in the nature of a judicial criticism upon the defendant’s case; that they were unfair and prejudicial to the defense, and must have conveyed to the jury the impression that the trial court believed that the defendant was guilty of the crime of murder, and in this way affected a substantial right of the accused.

We do not think the language of the learned trial judge is fairly susceptible of such an interpretation. It was no more than a clear exit statement of a most pertinent legal principle. The charge was murder, the defense a justification, and the court merely said, in terms not liable to misconstruction, that no wrong done by the deceased to the wife was available as a justification, but if the defendant believed that the wrong had been committed, the state of mind induced by the belief might be considered in determining the motive and intent of his actions.

Where evidence is admitted, not bearing directly upon the main issue, but having only an incidental relation to a material fact, which is the subject of inquiry, it is both the province and the duty of the trial court to clearly state the limitations of its scope and application to be observed by counsel and jury. This duty is especially enjoined in cases like the present, where jurors, however conscientious and intelligent, might be misled by the character of" the testimony, and, yielding to an impulse of indignation, permit it to exercise an undue influence in controlling their verdict.

Evidence offered by the prosecution to show the general reputation of the deceased for peace and inoffensiveness was excluded, the court remarking that his general character was not in issue; that he was as much entitled to the protection of the law as the best and most exalted man in the community, and that it was no justification to the defendant for talcing his life whether he was of good or bad character ; that his character could not, under any circumstances, be an issue in the case; that, so far as the guilt or innocence of the defendant was concerned, the jury must assume that Goodwin was a man of irreproachable character. The defendant’s counsel excepted to these remarks, and reminded the court that they attacked his dying declaration, and that in. that respect his character was in issue. In construing these comments, it must be kept in mind that we are dealing with a case where the killing was admitted, and the general character of the deceased had not been questioned by the defense. While the truthfulness of the dying declaration was disputed, it did not involve the general character of the deceased, and the defendant had offered no proof to impeach his character from the speech of people. What the court said had reference exclusively to the defense of justification, and did not involve the credibility of the deceased’s dying statements. On the contrary, the learned judge was careful to say that whether or not he should be believed, that was another thing, and by these remarks, as well as by the charge, subsequently given, the jury were left free to determine whether his account of the homicide or that of the defendant was the true one.

In disposing of this branch of the case, we recognize the full import of the expression of this court in Sindram v. People (88 N. Y. 196), that “it is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of -fact, and perhaps comments upon the evidence might be carried so far as to afford ground for assigning error; ” but there is a wide difference between the possible case there suggested and one, like the case at bar, where no intimation was given by the trial judge of his own views as to the credibility of witnesses, and his remarks were confined to a demonstration of the true quality and Aralue of evidence of an exceptional kind, and to a timely and needful caution to the jury to limit its force and application within appropriate bounds.

' A photograph of the deceased was admitted in evidence, under a general objection that it was incompetent, immaterial and irrelevant, and after it had been exhibited to the defendant, upon cross-examination, and he had stated, in response to the question whether it was a “ just picture ” of the deceased, that it somewhat resembled him. Subsequently, a juror inquired of the court the object of showing the picture to the jury, and was told that it was admitted for the consideration of the jury in determining the question whether they believed the defendant was in danger at the time he fired the shot; to give them some idea of the kind of a man the defendant claimed his assailant was.

Exceptions were taken to the reception of the photograph for this purpose, which, we think, are not tenable. (Cowley v. People, 83 N, Y. 465 ; Walsh v. People, 88 id. 458; Archer v. R. R. Co., 106 id. 589; Alberti v. R. R. Co., 118 id. 77.) There was no objection on the ground that it had not been shown to be a correct likeness. The exception went only to the competency of the evidence. Where self-defense is the plea, the physical characteristics of the slain are, obviously, a proper matter of proof. Whether he was a man-of a large and powerful physique or an athlete, or puny and feeble nr inferior in size and strength, it was a material fact to strengthen or rebut, according to the nature of the evidence, the claim of the defendant that he believed he was in great danger of bodily harm when he was assailed. Witnesses who had known the deceased might have been permitted to describe him as accurately as the imperfections of human speech would allow, and the evidence is no more objectionable when his form and features are delineated by means of the photographer’s art.

We do not think any error was committed in permitting the district attorney, upon cross-examination of the defendant, to show the circumstances under which he met ■ the Avoman ■with whom he was living and the kind of life she was then leading. The questions were all within the range of a proper cross-examination. Their manifest purpose was to prove that his relations to this woman were unhallowed and adulteroits in their origin; that their subsequent life together was that of libertine and mistress, and not of husband and wife, and that his word was, therefore, not entitled to the same weight as if his conduct had always been upright and blameless.

It is now an elementary rule that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his privilege. A party who offers himself as a witness in a criminal cause is not exempt from the operation of the rule. He is not compelled to testify, and if not examined the law provides that it shall not give rise to any presumption against him. When he elects to become a witness, it is for all the purposes for which a witness may be lawfully examined in the case, and he is not, in the constitutional sense, “compelled to be a witness against himself,” although, when subjected to the test of a legitimate cross-examination, he may be required to make disclosures which tend to discredit or to incriminate him. (People v. Tice, 131 N. Y. 657.) The extent to which disparaging questions, not relevant to the issue, may be put upon cross-examination, is discretionary with the trial court, and its rulings not subject • to review here unless it appears that the discretion was abused. (Great Western Turnpike Co. v. Loomis, 32 N. Y. 127; Greton v. Smith, 33 id. 245.)

It is urged that this evidence should have been excluded, because it tended to implicate the defendant’s wife, who was a witness for him, and thus to impeach her in an unauthorized way before the jury. But any apprehended misuse of this species of evidence may always be avoided by asking and obtaining an instruction to the jury, that it is only to be considered in determining the credibility of the witness who makes the confession.

The exceptions which remain to be considered relate to the evidence of the witness Fannie Bomaine. She was, ostensibly, in the employ of the proprietor of the flat, as a chambermaid, and in that capacity had no other duties to perform, with reference to the occupants of the defendant’s rooms, than pertained to the other rooms of the house. The prosecution sought to show that she had, in fact, become devotedly attached to the defendant and his wife, and was, at the time of the homicide, practically one of his household, and that their relations Avere intimate and confidential. We think the People Avere entitled to a submission of this proof, not as of a collateral, but as of an indejiendent fact, and that the trial court- properly alloAved it to be so given. That such is the rule Avhere the Avitness is hostile to the party against Avliom he is called cannot be questioned. As was said by Oh. J. Earl, in People Ar. Brooks (131 N. Y. 325), “ The hostility of a Avitness toAvards a party, against Avliom lie is called, may be proven by ■any competent eAudence. It may be shown by cross-examination of the witness, or Avitnesses may be called who can swear to facts showing it.” (Garnsey. Rhodes, 138 N. Y. 461.) The same rule must prevail Avhere the relations of the Avitness to the party aaIio produces him are more intimate and friendly than those which ordinarily exist in social or business intercourse. This kind of evidence is especially valuable in criminal prosecutions; for there are no cases,” says Wharton, “ in Avhich party sympathy, personal friendship, family affection operate, as a rule, so effectively as Avhere life and liberty -are at stake. In such cases, Avliile (unless in the relationship of marriage, to be hereafter discussed) there is no exclusion on account of bias, hoAvever strong, bias is always of importance in determining credibility. Nor is this exclusively on the .ground that bias prompts perjury. So it may sometimes do, but cases of this class are rare, while eases in which bias leads to unconscious perversion of facts are frequent. * """

For these reasons interest and party or social sympathy may be always shown in order to discredit a Avitness, and the same observation may be made as to near relationship.” (Wharton (him. Ev. § 316.)

In the pursuit of this line of proof, the People were permitted to show by the housekeeper of the flat, that this witness spent a great deal of the time in the company of defendant’s wife; that she was her companion, and wrent out to dinner with her in that capacity, and that she stayed with her evenings, and as late as three o’clock in the morning. The housekeeper was then allowed, under objection, to state that on one occasion the witness Eomaine had told her that she used to go with the defendant’s wife to hunt up the defendant, and remain outside of a well-known place of amusement two hours at a time, while defendant’s wife was looking for him. The witness Eomaine had denied upon her cross-examination that she had ever done so, or that she had ever so stated to the housekeeper. The evidence was properly allowed. It tended to contradict the Eomaine woman as to a fact which was material in the case, and related directly to the intimacy of her associations with the defendant’s family and the extent to which she was willing to serve them.

The housekeeper ivas also allowed to state, under objection, that Miss Eomaine, while employed in the Percival flats, was an habitual opium eater, and that she was many times under the influence of the drug, and that Miss Eomaine had told her that she could not leave it off or she would go mad. The witness Eomaine had admitted, upon her cross-examination, that she was in the habit of taking opium, and in reply to the question, “ Were you under the influence of it on this particular night Avlien this occurred ? ” she replied: Mot any more than any other time.” She Avasasked if she had not told the housekeeper that if she gave up the use of opium, it A\Tould kill her. She denied having so stated, or that she had any conversation with her upon the subject. Upon redirect examination, apparently for the purpose of excusing some discrepancies between her testimony on this trial and that given upon the examination before the police magistrate, the defendant’s counsel asked her if she was not, at the time of the former examination, taking opium frequently, and she replied in the affirmative, and also stated that she Avas..cured of the habit Avhile in the hospital subsequently. Under these circumstances, we think the People were entitled to give independent proof of the extent to which this habit had control of her, and to contradict her testimony when she denied that she had stated that she was so addicted to the use of the drug at the time the homicide occurred that she could not live without it. She was one of the principal witnesses for the defense. She claimed to have been present when the defendant killed the deceased, and to have witnessed the entire occurrence, and to he able to give a minute description of the fatal encounter, and the value of her testimony depended largely upon the accuracy of her perceptions. If she was then under the influence of a powerful narcotic, whose well-known properties are to distort the vision and induce mental confusion, it was material to show it; and her denial of the admission she made to the housekeeper was the denial of a material fact with respect to which she might be contradicted if the denial was untrue. It, was not within the rule which concludes the cross-examining party by the answers of the witness.

We are satisfied that no errors were committed on the trial to the prejudice of the defendant, and the judgment of conviction must he affirmed.

All concur.

Judgment affirmed.  