
    The People of the State of New York, Respondent, v. John McGraw, Jr., Appellant.
    
      District attorney — his statements to the jury, that the accused lived inaloeality inhabited by criminals,.that his'associate was an old offender and that the sister of one of his witnesses was disreputable constitute error — the jury must take previous good character into account — burden on an appeal as to est.dblishing error and its harmlessness.
    
    Upon the trial of an indictment charging the defendant and one Underwood with the crime of burglary and grand larceny, it is error to permit the district attorney to impress upon the jury that the defendant lived in a locality inhabited by criminals; that upon the night when the offense was committed he was in the company of Underwood, and that, although the defendant himself had never been convicted of crime, Underwood was an old offender and that the sister of one of the defendant’s witnesses was leading á disreputable life.
    The defendant is entitled to have, the court charge that,, if they reached the conclusion that his previous character had' been good, it was their duty to take . that into account in forming a détermination as to his guilt, and a charge? that they might take such previous good character into account is not sufficiently favorable to him.
    Upon an appeal from a judgment of conviction the burden rests upon the appellant to show that errors have been committed, and after he has shown the commission of errors the burden is upon the respondent to show that such errors were harmless and could by no possibility have pre j udiced the appellant.
    Appeal by the defendant, John McGraw, Jr., from a judgment of the 'County Court of Herldmer county in favor of the plaintiff, entered on the 23d day of May, 1898, convicting the defendant of the crime of burglary in the third degree and petit larceny, and also from an order entered in said clerk’s office on the 23d day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Josiah Perry, for the appellant.
    
      Adam J. Smith, for the respondent.
   Hiscook, J.:

Defendant was convicted under an indictment found against him and one Underwood, charging them with burglary in the third degree and grand larceny in the second degree, for having broken into the barn of one Budlong in December; 1897, and taken and carried away various personal property, including some horse blankets, a harness and some poultry. Upon conviction, as above stated, the defendant was sentenced to imprisonment for the term of one year and four months. A certificate of reasonable doubt was granted by Mr. Justice Williams, June 1, 1898, since which time the defendant has been out on bail, and during which period, for some unexplained reason, nothing has been done upon the part of the district attorney to bring this appeal on for hearing.

The defendant was tried separately from Underwood, and upon his trial various lines of evidence were offered to convict him of the charge laid in the .indictment. Perhaps the most important evidence was mat tending to show that he had in his possession soiné of the stolen property and the sale and disposition thereof by him.

The accused was sworn as a witness in his own behalf, denying the commission by him of the- crime alleged, and seeking to explain his connection with the property in question and answering the other evidence produced against him. In addition to this, quite a number of witnesses, many of them, it is true, in some manner related to or connected with the defendant, were sworn to establish his innocence by, amongst other things, proving an alibi for him Upon the night when the crime was committed.

Upon all of this evidence a question of fact was fairly presented for the determination of the jury, and we would have no disposition to reverse their .verdict upon the merits. In our judgment, however, errors were committed Upon the trial of the case which were prejudicial to the rights of the defendant, and which were so material that they cannot be overlooked, and for them and on account of them the conviction must be reversed.

Evidence was introduced by the district attorney showing defendant in company with Underwood, with whom he was jointly indicted, Upon the night when the burglary was committed, Evidence was then-introduced, over the objection and-.exception of the defendant, to show that Underwood had been confined in prison or the penitentiary before the commission of the offense in' question here. There was no evidence that defendant had ever before been convicted of any wrongdoing. Evidence was also permitted, over like objection and exception, that Underwood kept away from home at the time when the grand jury found the indictment in question.

In summing up the case the district attorney clearly traveled outside of the record, and improperly stated “ that if the jury knew the locality in which the defendant lived as well as the people of the City of Utica knew it, they would know it was a congregation of people who had little regard for the commission of crime.” It does not appear just when this remark was made by him. But apparently at the close of his summing up, defendant’s counsel took exception to the remark, whereupon the district attorney in substance stated .that he had not made the remark as quoted by defendant’s' counsel, and in answer to the question of the court stated that he would repeat just what he had said, and then repeated as above quoted. Upon this, defendant’s counsel again took an exception to the remark as conceded to have been made, and the court replied: “ You may have an exception to that.” It thus appears that when the impropriety of this remark was called to the attention of the district attorney and of the court, the former in no way whatever modified or retracted it, but practically reasserted it, and the latter in no manner whatever ruled upon its impropriety or instructed the jury to disregard it, but by expressly allowing defendant an exception in effect sanctioned and held proper the conduct and remark of the district attorney.

Upon the cross-examination of one Jennie Stafford, an important witness for the defendant, the district attorney was allowed, despite the objection of defendant’s counsel, to cross-examine her with reference to a brother and sister, with the result of drawing from her evidence from which a jury might fairly infer that the sister was leading a disreputable life.

In this manner the district attorney was allowed, with the sanction and approval of the court, to impress upon the jury that this defendant lived in a locality inhabited by. criminals ; that upon the night when the offense in question was committed he was in the company of Underwood, and that, although defendant himself had never been convicted of any prior crimes, Underwood was an old criminal, and, therefore, by prior history quite prepared to engage with defendant in the crime in question; that the families even of defendant’s witnesses were in part bad or disreputable. In other words, thé district attorney was allowed to emphasize, in all of these improper ways, that the surroundings and relations of defendant were bad and criminal, and such as to render it probable that he had been engaged in the commission of the crime with which he was charged. Some attempt was made upon the trial and the argument to justify some of the questions which drew out the evidence under review, as put for the sake of testing the recollection of a witness, but this reply to defendant’s criticisms is so transparently insufficient as not to require discussion.

At the close of the judge’s charge defendant’s counsel offered this request: “ I ask Your Honor to charge the jury that if they believe the defendant’s character up to the time of this charge has been good, that they have. the right. to and should .take that into consideration in his behalf in arriving at their verdict.” This the court refused to do, saying: “I wont say that they should. I will leave it to the jury to say * * * The fact of his character may be considered by the jury, and the jury should take into consideration the character of the defendant and all of the witnesses in arriving at the truth in this case. Mr. Berry,: I think, the rule is as I have asked you to charge. The Court: I grant your request so far as to say, that they have the right to do that; I wont advise them that they should; they have the right to consider the character o.f the defendant and of all parties.” .

To this refusal an exception was duly taken. In saying what he did, we think that the county judge failed to charge the jury fairly and plainly, as defendant was entitled to have him, that if they reached the conclusion that defendant’s character prior to the charge in question was good, it was their duty to take that into account in forming a determination as to his guilt. It is true that once in the course of his remarks the judge did say that the jury “ should ” take such evidence into account. But this seems to have been an unintentional statement by him, for both before and after it he clearly charges the jury, not that they must take into .account the previous good character of the defendant if found, but simply that they had the right to, making the latter rule- the predominating one which must have controlled the minds of the jury. The rule thus laid down was clearly erroneous. One or more witnesses were sworn as to the prior good character of the defendant. In addition to that there, was an absence of prior conviction for wrongdoing. So that this question was fairly presented to the jury upon the evidence, and if the latter reached a conclusion as a question of fact in favor of defendant he was entitled to have the jury instructed as requested.

Pointing out these clear errors in the conduct of the trial, the only question left for consideration is whether they can be treated as so immaterial as to justify the court in overlooking them and affirming the conviction. And to this question we feel compelled to give a negative answer.

By the improper questions and remarks of the district attorney influences were brought to bear upon the minds of the jury which could not be otherwise than potent. We do not well see how the jury could be more strongly led by any class of evidence to believe that the defendant’s defense was untrue and that he was guilty of this crime than by being assured, with the approval of the court, that he lived in a nest of criminally inclined people, and was upon the night when his conduct was under review in association with a criminal. And, further, we do not see how defendant could escape being prejudiced with the jury when the court refused to instruct the latter that even if they should find that his prior character had been good they might if they saw fit disregard that fact.

The burden rests upon appellant to show that errors have been committed, but it does not rest upon him to show that such errors were harmful. The burden is with the respondent to show that they were harmless and could by no possibility have prejudiced the defendant. (People v. Koerner, 154 N. Y. 355, 376.)

It is only in a most extraordinary case that an appellate court may say that a material error could by no possibility harm the defendant or that such error was only technical. (People v. Wood, 126 N. Y. 249, 255.)

' Section 542 of the Code of Criminal Procedure, which allows the court to disregard technical errors or defects or exceptions which do not affect the substantial rights of the parties, is but little more than a codification or statutory enactment of the previously established rule, that even in criminal cases a new trial will not be granted for an erroneous ruling where the appellate tribunal can see that by no possibility could the error have worked any harm to the defendant. But this statute in no Way impairs or affects the previously well-established principle that the rejection of competent and material evidence, or the reception of incompetent and improper evidence, which is harmful to a defendant and excepted to, presents an error requiring reversal. Such a ruling affects a substantial right of a defendant even though the appellate court would, with the rejected evidence before it or with the improper evidence excluded, still come to the same conclusion reached by the jury. (People v. Corey, 148 N. Y. 476, 494.)

In People v. Maine (166 27. Y. 50, 52) which was an appeal from an order of the Appellate Division in the third department affirming a judgment convicting defendant of the crime of manslaughter, the Court of Appeals reversed the decision of the Appellate Division on account of errors in the admission of evidence, upon the trial. In doing this, through Judge Landon, the court writes as follows: “ The learned Appellate Division held it to be error to admit this evidence, but that it was' not ground for reversal, because; with this evidence out, no other conclusion on the .part, óf the jury was possible ’ than the guilt of the defendant. But whether it was possible or not, with this evidence out, was for the jury to decide, and this they have not yet done, and it is the defendant’s right that they should do it. * * * The evidence was material and of a tendency prejudicial to the substantial rights of the defendant.”

In People v. Smith (162 N. Y. 520) an improper statement wamade by the district attorney in opening the case. Defendant’s objection .thereto was overruled. The conviction,secured of defendant for arson' was reversed, the court saying : The statement made by the district attorney was thus approved by the court and may have had a prejudicial influence with the jury.”

These authorities, and many others which might be cited, amply sustain the conclusion .that the errors complained of in this case cannot be regarded as immaterial or harmless to defendant, and this being so, we are led to the further conclusion that the judgment of' Conviction against him must be reversed and a. new trial ordered and case remitted to County Court, pursuant to section 547, .Code of Criminal'Procedure,

All concurred.

Judgment, conviction and order reversed, and new trial ordered and proceedings remitted to the County -Court, pursuant to section 547 of the Code of Criminal Procedure.  