
    The People of the State of New York, Respondent, v. Orlando J. Hackett, Appellant.
    
      Mrrm’ in. admission of evidence—when cured by directing the jury to disregard it — how far the court is justified in interrogating a witness.
    
    Where testimony, improperly admitted on the trial of an indictment,-is immaterial to the issue which is finally submitted to the jury, the error involved in its admission is cured by striking it out and directing the jury to disregard it.
    While it is often proper and advisable for a trial judge to interrogate a witness " for the purpose of making the evidence clear- upon a point, as to which it has been left obscure, or confused, or to bring out material facts apparently within the knowledge of the witness and overlooked by counsel, this may ordinarily be done by very few questions, and, in the main, the counsel should be left to conduct the examination.
    McLaughlin, J., dissented.
    
      Appeal by the defendant, Orlando J. Hackett, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 29th day of May, 1901, convicting the defendant of grand larceny in the first degree, and also from the orders denying the defendant’s motions for a new trial and in arrest of judgment.
    The indictment charges, in the first count, a common-law larceny in obtaining possession of three $1,000 bonds of the Chesapeake and Ohio ¡Railroad Company, owned by Mrs. Emma Butler; and the second count charges the defendant with having misappropriated the proceeds of these bonds as agent or bailee. There is no dispute in the evidence as to the fact of the defendant receiving and selling these bonds, the sole question being whether his disposition of the proceeds was in accordance with the directions of Mrs. Butler or not. The bonds were sold on three different dates by the defendant for Mrs. Butler, the aggregate amount received for them apparently being about $2,560, from which different sums amounting to $200 were received by Mrs. Butler, leaving a balance of $2,360 in the hands of the defendant.
    Mrs. Butler testified that she and her husband first became acquainted with the defendant in the summer of 1898 at Atlantic Highlands; that her husband often met him on the boat going to and from the city; that this acquaintance grew into friendly social relations, and in the fall the defendant frequently called on them in the city, and in the latter part of Hovember or first of ¡December took Mr. Butler as a partner in a firm with himself, formed for the purpose of engaging in the real estate business. About the middle •of December the Butlers moved, and a few days later the defendant took apartments in the'same house with them and visited their rooms almost every evening. Mrs. Butler- says the defendant told her he had $22,000 invested in real estate, talked to her about the business very often and told her it was a good thing to put money in; that about the middle of December she, desiring to sell one of ¡her bonds, asked the defendant to sell it for her, which he did, and to invest the proceeds; that shortly after this defendant handed her $50, which he said was a bonus which he had obtained by loaning the money to a man who wanted to borrow it very badly; that ■during the latter part of December the defendant told her that he had inside information from Mr. Cuyler, a Wall street broker, that the Chesapeake and Ohio railway was going to “ smash,” and that if she desired to get her money back she had better sell her bonds at once, and that she thereupon gave him another bond to sell and invest the proceeds in the same way; that éarly in January the defendant made more emphatic representations to her concerning the breaking up of the Chesapeake and Ohio Company, and she gave him the third bond to sell on January’ 3, 1899. Her testimony clearly indicated that she intrusted the money to the defendant to invest in real estate, and not in business. Mrs. Butler further testified that she went to the defendant and told him that she wanted to use $50 more, and that he advised her not to take the money, as it was doing well and that her husband would support her, evidently meaning that it was unnecessary ; that she asked him several times, with the same result, and finally on the afternoon of March twenty-sixth she said to him that while she trusted him thoroughly, she wanted to have some ready money and wanted to have her money in the bank, and asked him .how he had invested it; that he told her he had invested it with some of his own in an $8,000 mortgage, and that he would make it satisfactory to her if she would call at his office, but instead of doing this she went do her attorney; that on March twenty-eighth the defendant came to her and stated that he had had a communication from the lawyer she had been to, and told her that if she did not stop going to' a lawyer she would never get a cent of her money back, and if she would come to him he would make things satisfactory; that she promised to come to him on the following morning, but went to her lawyer, Thomas W. Bowie fcte, again instead, and that the defendant came to the lawyer’s office in response to a telephone call. Her attorney testifies concerning the interview which then took place, that he asked the defendant what he had done with her money;. that the defendant declined to tell him ; that he then turned to the complainant and asked her if she authorized him to make this inquiry and, after she said that she did, the defendant said that he had invested it with some of his own in real estate but declined to tell where, and that, upon being threatened with arrest, he jumped up and left the office, saying that he would .get the securities. This is substantially corroborated by Mrs. Butler. The attorney further testifies that five or six minutes after - this the defendant called him np on the telephone and said, “For God’s sake, don’t have me arrested. It will ruin me. I spent that money. I got in a close place and I spent her money; but I have influential friends, and I can get the money, and by eleven o’clock to-morrow morning you shall have the money at your office for Mrs. Butler.” The complainant further states that on the evening of the day following this last interview she received by mail a certificate for twenty-four shares of stock of the Metropolitan Trading Company — a corporation recently formed, with her husband as treasurer and the defendant as president; that nothing had been said to her about this company by the defendant. Cornelius C. Cuvier, called as a witness by the People, testified that he never mentioned anything about the Chesapeake and Ohio to the defendant.
    The defendant testified in his own behalf that Mrs. Butler gave Mm the money to use as he saw fit to further the interests of the firm business, and he is corroborated by his mother, who testifies that the complainant told her that she intended giving her money to the defendant to help the business along; but this is controverted by the testimony of Mrs. Butler. The defendant further testifies that the complainant sold the second bond against his advice, and insisted upon putting the money in the business the same way; that she placed this confidence in him because he had helped her husband to the means of earning a living which, he says, she stated was more than their relatives had done. It appears from defendant’s testimony that the principal efforts of this firm had been expended in endeavoring to get before the public, and that they were not then trying to do much business, and the only actual transaction of the firm that he is able to recall is that of obtaining a $1,900 mortgage for a woman whose name and address he is not sure of and does not give. This firm had no bank account and only earned a few hundred dollars in the three or four months that it existed. The defendant used all the firm’s money in payment for advertising, clerk hire and the general expenses of running the firm’s business, including payment of $400 or $500 to Mr. Butler, and had purchased no land, mortgages or other securities with it. He claims that the complainant had great faith in the Metropolitan Trading Company’s stock and wanted her money transferred to that; and, as the money was tied up in the real estate business and cash must be paid for the only stock of the company left, he agreed, because she had. been very kind to him and to the business, to give her sufficient of the stock held by him to equal the amount that she had put in the business and adjust it later with the business when it was in funds. Defendant denies having had a telephone conversation to the effect, as testified to by Bowlette ; or that he told complainant that the Chesapeake and Ohio was going to smash, or that Cuyler told him so, or that he had invested her money in an $8,000 mortgage. He states that he did talk with Bowlette over the telephone and told him that complainant could get her securities or he would deliver them ; and he says that Bowlette did not ask him about securities but only about money. He further states that it was about the first of March when complainant told him to make this transfer to the stock of the Metropolitan Trading Company; but when asked why he did not mention this definite arrangement in his letter sent with the certificate -of stock on March thirtieth, in which he states that he has put her money in this stock, he says that he was flustered and could not bring his mind down to what he wanted to say in a letter and that she had promised to give him some of the money. It appears from the defendant’s testimony that this Metropolitan Trading Company was organized with a -capital stock of $25,000, of which only $1,000, at most, had been paid in in money; that he had no financial basis. He does not give any clear explanation of the purpose of its organization, and his testimony is • inconsistent on this subject and not reconcilable with that of the attorney who acted in incorporating the company and with the proceedings of the corporation as shown by the minutes of the directors’ meetings.
    
      Lewis Stuyvesant Ohanler, for the appellant.
    
      Robert G. Taylor, for the respondent.
   Xaug-hlin, J.:

The first contention of the appellant is that the verdict was not warranted by the evidence. We think there was not only sufficient evidence to require the submission of the question of defendant’s guilt to the jury, but that the verdict is amply sustained by the evidence. A careful examination and consideration of this record satisfies us that the guilt of the defendant was clearly established: He obtained the complainant’s money by holding out an inducement of profitable investment in real estate. He did not invest it as authorized, but wrongfully misappropriated it.

The next assignment of error by counsel for the defendant relates to a statement of the assistant district attorney in opening the case to the jury, that the defendant had committed a similar crime at about the same time, and to evidence offered and received on that subject which was subsequently stricken out. The assistant district attorney, in opening the case, after stating the charge against the defendant for which he was on trial, said that a second indictment had been found against him for grand larceny in the second degree, consisting of a similar larceny for the same purpose; that the People would show that after the defendant obtained the money from Mrs. Emma Butler, he obtained $300 from Mrs. Hannah Butler, her mother-in-law, on like representations; that the People would show this for the purpose of showing motive; that it was one and the same scheme to defraud both parties; and that he brought the matter to the attention of the court in his opening in order that, in opening the case, I may not transgress the bounds of propriety in mentioning the circumstance.” Counsel for the defendant thereupon remarked, upon its face it appears that these two crimes occurred eight days apart,” and he could not understand the attitude of the district attorney in suggesting that “ upon the trial of an indictment charging the commission of an offense upon the third of January he can offer evidence of a crime which the indictment itself charges was committed upon the 11th of January.” The court directed the district attorney to proceed, which he did, and upon his commencing to state defendant’s transactions with Mrs. Hannah Butler, counsel for the defendant objected, and upon the court’s directing the district attorney to proceed, took an exception. The district attorney then stated, in substance, that he expected to show that shortly after the defendant obtained the money from the complainant he called upon Mrs. Hannah Butler, who had saved up $300 which she had in the savings bank, asked if she had any money, and upon being told that she had and where it was, said that it was a mistake to have it in a savings bank; that if she would let him take it and invest it in real estate she. would do “a great deal better,” and that upon the next interest day she drew it from the bank and delivered it to the defendant, but he did not inform the jury what the defendant did with this money. After the complaining witness was sworn counsel for the defendant requested the court to strike from the record all that portion of the District Attorney’s opening statement which referred to transactions with Mrs. Hannah Butler in regard to a three hundred dollar transaction,” and asked the court to instruct the jury to disregard that matter, to which the court replied, “ For the present I will deny the motion, Mr. Chanler,” and counsel for the defendant excepted. Mrs. Hannah Butler was called as a witness for the People and, under defendant’s objection and exception, was permitted to testify that in the early part of January ' the defendant came to her room and asked if she had any money, and on being told that she had a little, asked about how much, and was informed she had a couple of hundred dollars in the savings bank, whereupon he stated that the bank did not pay much interest and that if she would let him have it to invest in real estate with some of his own, he would give her a great deal more, and any time she wanted it he would bring it to the house, the same as if it was in the bank; that' the told him she could not let him have it then, that she wanted to have the interest marked on it, and that this was the entire conversation. The court thereupon, of its own motion, directed that the testimony be stricken out and that'the jury disregard it, but upon counsel for the defendant starting to object offered to let it remain in if he desired. A discussion then ensued between counsel and the courts in which the assistant district attorney contended that the evidence was competent, and the court suggested that it might be, if the first count charged a larceny by false representations, which it did not, and stated that at the proper time the People would have to elect whether they desired to stand upon the first or second count of the indictment. The assistant district attorney then said the People would elect to stand upon the second count, but the court replied that it was not necessary for them to make an election at that time. The court then remarked that this evidence was not admissible upon either count, but that if counsel for the defendant so desired, it' would be permitted to remain in the case. Counsel for the defend- ■ ant then said, “ the defendant is making no motion or suggestion further than he has already made; ” to which the court replied: “ Then I will simply reiterate my ruling that the testimony be stricken from the record and the jury will disregard it as far as this witness is concerned.” Counsel for the defendant did not renew his motion to have the opening remarks of the district attorrfey stricken from the record, and the record discloses nothing further concerning said remark or this evidence.

At the close of the evidence the People withdrew the first count of the indictment and elected to go tó the jury on the counts charging misappropriation as a bailee or agent. The learned recorder, in submitting the case to the jury, clearly instructed them that the defendant came into possession of these bonds and their proceeds lawfully, and. that the sole question for their determination was whether the People had satisfied them, by a preponderance of evidence beyond a reasonable doubt, that these bonds were delivered to the defendant under authority to sell and invest the proceeds in real estate, in disregard of which he appropriated them to his own use with intent to deprive Mrs. Butler of her property, and, if not, that it was their duty to acquit the defendant. It was, therefore, immaterial how or by what representations the defendant obtained possession of the bonds or their proceeds, and we think that this was made clear to the jury. The evidence being immaterial to the issue as finally clearly submitted to the jury, we think the error in. admitting it was cured by striking it out and directing the jury to dis. regard it. (People v. Wilson, 141 N. Y. 185, 191.) It is evident that the court, on reaching the conclusion that the evidence concerning the transactions with Mrs. Hannah Butler was inadmissible, would have directed the jury to disregard the remarks of the district attorney on that- subject had the motion been renewed, and if counsel for the defendant deemed those remarks prejudicial, in view of the subsequent ruling of the court in striking out the evidence and in charging the jury, we think he should have again drawn the matter to the attention of the court.

The defendant, on being called as a witness in his own behalf, was examined at considerable length both in his direct, cross, redirect and recross examination, but the evidence upon some of the points upon which he was examined was left quite indefinite and conflicting. The court then, evidently for the purpose of having the facts shown more definitely and clearly, proceeded to question him at considerable length. The examination conducted by the attorneys covers about forty pages of the printed record, and that conducted by the court about nine. It is not claimed that the court opened up any new subject in this examination, or that the questions were put in a prejudicial form. It is contended, however, that this was an abuse of discretion on the part of the court in interrogating the witness at such length, and that it may have led the jury to infer that the court deemed the defendant guilty. The learned recorder repeatedly instructed the jury that they were the sole judges of the facts, and that the function of the court was merely to instruct them as to the law.. While in this case we do not think the conduct of the judge in conducting the examination requires a new trial, it is not to be commended. It is often necessary, proper or advisable for a judge to interrogate a witness for the purpose of making the evidence clear upon a point upon which it has been left obscure or confused, or to bring out material facts apparently within the knowledge of the witness, and overlooked by counsel, but this may ordinarily be done by very few questions, and in the main the counsel should be left to conduct the examination. (Bolte v. Third Ave. R. R. Co., 38 App. Div. 234.) The other points presented by the appellant, have been'examined, but require no special consideration.

It follows that the judgment should be affirmed.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; McLaughlin, J., dissented.

Judgment affirmed.  