
    The People, Resp’t, v. Orrin Friday et al., Def’ts.
    
      (Supreme Oourt, General Term, Second Department,
    
    
      Tiled December 10, 1894.)
    
    Appeal—Cbiminal cases.
    A conviction, secured on the testimony of a witness, who claimed at the time of the trial that he was innocent, but afterwards plead guilty under indictment for the same offense, will be reversed.
    Appeal from a judgment of conviction for burglary in the third degree.
    
      A. M. & G. Card, for app’lt; Horace D. Hufcut, Dist. Atty., for the People.
   Dykman, J.

These three men were indicted by the grand jury of Dutchess county for burglary in the third degree. The specific-allegation in the indictment was that on the 2d day of January, 1894, they feloniously broke open the henhouse of John W. Free,, with intent to steel his goods and chattels, and did steal and carry away 80 barnyard fowls, of the value of $50. Orrin Friday was tried separately on the 6th day of August, 1894, and was convicted and sentenced to the state prison for two years. Upon his trial, John Bruce was called as a witness by the people, and testified that Friday came to his house in the morning of January 3d, about 4:30 o’clock, with a load of bags containing chickens, and that he (Bruce) had nothing to do with it (meaning the stealing of the chickens). The next morning Bruce withdrew the plea of not guilty which he had previously interposed to the indictment, and pleaded guilty thereto. Bruce requested the court to suspend sentence upon him, because he had testified against Friday upon his trial, and aided in convicting him. To that request the court-replied “ that he should consider it; that he could not see how a man could swear one day that Friday was the guilty party, and after Friday was convicted, that he should then plead guilty, and ask for sympathy from the court.” The court did, however, reverse the sentence upon Bruce. Thereupon Friday and his lawyer made affidavits reciting the foregoing facts, and his counsel made a motion to the court for a new trial thereon. The motion was-denied, and the defendant has appealed from the judgment of conviction, and from the order denying the motion for a new trial.

It will be convenient to consider first the appeal from the order. 'It is by no means certain that the defendant would have been convicted without the testimony of Bruce. If the case had been sent to the jury destitute of that evidence, it would have been quite weak and doubtful. Starting with the conceded guilt of Bruce, the circumstances might have received an explanation consistent with the innocence of Friday. The chickens were found in the, house where Bruce resided, although it belonged to Friday, and he had the use of a room or two in the house. That fact, therefore, weighs as heavily against Bruce as it does against Friday. The fact that there were feathers in the top of the boot of the defendant ou the day of his arrest is entitled to only slight consideration, especially as it does not appear what kind of feathers they were, further than that there was one large feather. There were feathers in the room where the chickens were found, and the defendant was there. These feathers may have adhered to the boots there. Moreover, there were feathers in the court room, where the feathers adhered to his boot. There was a square box wagon at Bruce’s place, with blood on the axle and running gear, and the defendant had such a wagon. It is fair to assume that the chickens were brought to the house in that wagon, but that assumption does not aid us, as our inquiry relates to the person who did the business. So the least that can be said in favor of the defendant is that, without the testimony of Bruce, the case made against, the defendant would have been doubtful, and he had a property right in the doubt of which he has been deprived. The case went to the jury with the testimony of Bruce that he was innocent, but with his guilt established the case presents a very different aspect. The testimony and the surrounding circumstances point much more directly to Bruce than they do to Friday. As the defendant must be allowed the benefit of doubts in all stages of his case, and as we conclude that there will be a doubt about his guilt with the conceded guilt of Bruce, we think he should be allowed an opportunity to present his case to the jury upon the facts as they exisl, unclouded by the false testimony of Bruce.

In view of our conclusion to grant a new trial'upon the motion of the defendant, it is not necessary to make an extended examination of the appeal from the judgment. The evidence, as it stood with the testimony of Bruce, was sufficient to support the verdict, but the record discloses this occurrence upon the trial: Jacob Osterhout was a witness for the prosecution, and in his direct examination, in speaking of an interview he had on the 3d day of January — the day after the larceny—with Judson Friday, the son of the defendant, who was indicted with his father, the witness said: “ He looked like a boy who had just come out of a hen roost. Q. What do you mean by that ? A. He looked sneaking, if you know how that is. (Defendant moves to strike out his answer about looking sneaking. Motion denied. Exception.) ” The first exclamation seems to have been voluntary, and the responsibility for it rested only upon the witness, and, if promptly stricken from the record, it might have been harmless; but when the public prosecutor eluded an explanation or further opinion, it was little less than an outrage upon the rights of a man undergoing a criminal prosecution. It is impossible to suppose the remark harmless, for it was palpably harmful. The jury may well have assumed it to be legitimate proof, and the description would present a hideous picture to the mind of any juror. We think the exception presents an error which is fatal to the conviction.

The judgment of conviction and the order denying the motion for a new trial should be reversed, and a new trial granted.

All concur.  