
    The People, Resp’t, v. John Brow, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 3, 1895.)
    
    1. Trial—Charge.
    A trial court, instead of charging that the defendant or a witness, whose testimony is in conflict, has upon the trial perjured himself, should leave it to the jury to determine whether one of such witnesses was mistaken or had intentionally sworn falsely.
    2. Same—Opinion op court.
    It is error for the trial court, in its charge to the jury, to refer to the testimony of a witness in such a way as to inform the jury that in the opinion of the court the testimony of such witness is false.
    3. Same—Comments on testimony.
    It is error for the court, in a criminal case, by comments on the evidence in charging, to show that he believes that the testimony as to a criminating admission by defendant was not in a joke, when the witness, who testified to such admission, said that at the time they believed he was joking, and defendant testified that he was then joking.
    4. Evidence—Testamentary.
    Upon the issue as to the age of the complainant in a prosecution for abduction, a record by a former teacher in her own handwriting, of the attendance of complainant and other pupils, where she testifies that she inquired of the pupils their ages when she opened school and set it down in the record, and without looking at the record she was unable to remember what the complainant told her as to her age, iridependently of the memorandum, is inadmissible.
    5. Witness—Assumption.
    The admission of a question to a witness, which assumes as proven by the evidence a material fact not proven, is error.
    Appeal from a judgment convicting the defendant of the crime of abduction.
    
      John 0. Keeler, for app’lt; Ledyard P.^Hale, for the People.
   PuTHAit, J.

The defendant was indicted in the court of oyer and terminer of St. Lawrance county, on the 3d day of October, 1894, for the crime of abduction. The indictment charged that defendant, with others, on the 4th day of August, 1894, took, received, employed, harbored and used, and caused and procured to be taken, received, employed, harbored and used, a female under the age of sixteen years, to wit, one Ida Jones, for the purpose of nrostitution, and for the purpose of sexual intercourse; neither of said defendants being her husband. Defendant pleaded not guilty, was tried separately in the court of sessions of St. Lawrence county, and found guilty. From the judgment of conviction he has appealed to this court.

Defendant, on the trial, controverted the allegations in the indictment, that he had had unlawful relations with complainant, and also that she was under sixteen years of age. After a careful consideration of the evidence produced by the parties on the trial, and the exceptions taken by defendant to the rulings and the charge of the learned trial court, we have reached the conclusion that the judgment of conviction must be reversed on account of some mistakes in the instructions given by the trial court to the jury, and rulings made by him on the trial. One of the witnesses called by the people was Asa Hawley. He testified to a conversation with defendant on the day of the alleged abduction, which tended to corroborate the testimony of complainant. His testimony was contradicted by defendant. The trial judge, in his charge to the jury, made the following remarks:

“ What interest had Mr. Hawley in this case to go upon the stand and tell a falsehood ? Because, gentlemen, one of these two men have done it. We look at the English language, or use it, just as it means, and there is not any use of saying to you that one of these men is mistaken. That is not true. There is no mistake about it. Where an occurrence occurred last August, and one man goes upon the stand and swears positively that a certain thing did occur, and, on the other hand, another person comes upon the stand, and swears that it did not, one of them is telling an untruth. It is for you to say which one it is. What interest had Mr. Hawley to go upon the witness stand and tell an untruth in this case? Has he got any? Is he a disinterested witness? That is for you to say. What interest had Mr. Brow in this case? = You are to take his testimony just the same as any other witness; but it is my duty to say to you, gentlemen, that when he is a. witness upon the stand he is a witness who stands here charged with a felony, and you have a right to.take into consideration, in determining what weight you will give to his testimony, the fact that he is a witness who is here charged with a crime.”

We think the court erred in thus instructing the jury that either Mr. Hawley or defendant, in detailing the conversation referred to, had uttered falsehood. He should have allowed the jury to pass upon the matter. The jury might well have determined that one 'of the witnesses was mistaken, and not guilty of deliberate perjury. An examination of the testimony given by Mr. Hawley shows that his recollection of the conversation he had with the-defendant on the day of the abduction was not clear, and it is a well-known fact that honest witnesses, in detailing a conversation that occurred months before, often materially differ in their recollections. Hence the trial court, instead of charging that either defendant or Hawley had upon the trial perjured themselves, should have left it to the jury to determine whether one of the witnesses was mistaken or had intentionally sworn falsely.

Again, in the portion of the charge above quoted the trial court inadvertently allowed his opinion as to the respective credibility of the testimony of defendant and Hawley to appear. He did not directly instruct the jury to believe the statement of Hawley and disbelieve that of defendant, but the jury were not left in doubt as to his opinion. It has been properly held error for a trial court, in its charge to the jury, to refer to the testimony of a witness in such a way as to inform the jury that in the opinion of the court the testimony of such witness was false. A party to an action is entitled to a determination of the jury on the question of the credibility of witnesses uninfluenced by the opinion of the court. People v. Gorman, 83 Hun, 605; 65 St. Rep. 41; McKenna v. People, 81 N. Y. 360, 363.

The court also used the following language in regard to the same conversation between Hawley and defendant:

“If he was down there simply buying blackberries, why did he say to Hawley (if you find he did say so) that he had everything arranged, and that Welch wanted him (Hawley) to go down? What was it that was arranged? That’is for you to say. You remember the response that Mr. Hawley gave. It may have been a slang phrase, perhaps, but it means a good deal, that he was not ‘in it'; that is the reply that Mr. Hawley"says he made to Mr. Brow. You are to say, if Mr. Brow made that statement, why did he make it.”

In so instructing the j ary the court did not state the facts correctly. The witness Hawley, in first detailing the conversation with defendant, testified that defendant said:

- “That Willie Welch wanted him and I to go down there. I told him I wasn’t in it. He said he had got things all fixed, and Will Welch wanted him and I to go down there. That’s all there-is to it.”

Afterwards, on being further interrogated in regards to that conversation, he corrected his testimony as follows:

“ Q. Did you tell him you wasn’t in that kind of business? A. I don’t remember whether I did or not. Q. Did I understand you tp swear a moment ago that you said to him when he was-talking there .that you wasn’t in it? A. Yes, sir. Q. Did you say that to him ? A. I don’t remember whether I said those very words or not.”

It was, therefore, a mistake on the part of the court to say to-the jury that in the conversation referred to Hawley responded to defendant that “he wasn’t in it,” and that such response “ means a good deal.” The effect of Hawley’s testimony was to leave it uncertain whether he made the remark which the judge thought meant a good deal.

John and Henry Randall had" been called by the people to prove an admission by defendant to the effect that he (defendant) had intercourse with complainant at the time of the alleged abduction. John Randall testified that defendant, at the time he made the admission, he was joking and laughing, and he could not tell whether he meant it or not. Henry Randall said, “I took it they were joking together.” Defendant testified that what he said to John and Henry Randall was said as a joke. Hence the witnesses who testified in regard to the admission made by defendant of having had intercourse with complainant at the time in question gave evidence from which the jury could have well found that the admission was a mere remark, intended as a joke, and not to be taken seriously. And the statement of these witnesses in that regard was not improbable. Would defendant be likely to seriously admit the commissson of a felony for which he could be sent to state prison? The trial judge charged in.regard to the admission as follows:

“It has been called out upon this trial that some few days after this occurred, — whatever it was, — that Mr. Brow, in his barber shop, in the presence of three men, admitted that he had intercourse with this girl down there in the bushes. * * * He says to-day it was a joke. It is for you to say whether it was a joke or not. That is" the way he puts it. He says it was done in a joking way. You have a right to say whether it is a subject which a married man, living in the town of Colton, would be likely to joke about.”

The trial judge evidently thought that the admission was not made in the way of a joke, and allowed the jury to see what his opinion was. We think his remarks were objectionable for the reasons above stated. In an indirect way he informed the jury that he did not believe defendant’s testimony to the effect that what he said to the Randalls about his intercourse with complainant was not intended seriously.. The mistakes above referred to tended to the prejudice of the defendant on the trial, and prevented him from obtaining the uninfluenced verdict of the jury on the questions of fact in the case.

One question sharply contested on the trial was as to the age of the complainant. Defendant called Mary Hayes, a school teacher, with whom complainant attended school in 1891. The witness testified that she knew complainant, and a record in her own handwriting of complainant’s attendance and the attendance of the other pupils; that she inquired of the pupils their ages when she opened school, and set it down in a record. She testified, in'substance, that pupils gave their ages when they came to school, and she took their ages, and set them down, and that the record produced was a record made by her at the time. The witnesses afterwards looked at the record and was unable to remember what the .complainant told her as to her age, independently of the memorandum. Defendant then offered to read the memorandum in evidence, but the court excluded it. This, we think, was error. The record was an original memorandum kept by the witness, required to be kept by her; and if, on looking at it, she was unable to remember the fact of the age of complainant, the memorandum itself was competent evidence. Nat. Ulster County Bank v. Madden, 114 N. Y. 280; 23 St. Rep. 220. The evidence so offered was important, and its exclusion may have affected the result of the case.

We also think the objections to-the following questions asked of the witness Hawley should have been sustained: “Q. What answer did you make to the defendant when he asked you to go down there, that they had go it all fixed up?” And, “At the time he asked you to go down there, was the girl down there with Welch,—down the road? ” The witness Hawley had not testified that defendant asked him to go down • there, but that defendant had told him that Willie Welch wanted him and defendant to go down there. The allowance of the questions by the court which assumed that the previous evidence of the witness showed a request on the part of defendant to Hawley to go down where the complainant was at the time of the alleged abduction to prejudice defendant before the jury.

There are very many other exceptions taken by the defendant to the ruling on the trial and to the charge, which we do not-deem it necessary to discuss.

For the reasons above stated, the judgment should be reversed and a new trial granted.

All concur.  