
    The People, Resp’t, v. John T. Stephenson, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 30, 1895.)
    
    1. Evidence—Bribery.
    The evidence, in this case, was held insufficient to connect defendant with a third person so as to render a conversation, with the latter admissible.
    
      2, Appeal—Exception—Motion to strike out.
    An objection to evidence may be reviewed where an exception was taken to its admission, though no motion to strike out was made.
    8. Same.
    Where any competent evidence is admitted because of the assertion of counsel of his ability and intention to connect it, if the assertion is not kept good, the counsel making the promise should be compelled to withdraw the testimony from the consideration of the jury.
    4. Witness—Cross examination—Extent.
    A defendant in a criminal case, on cro.ss examination, may be inquired of in relation to the facts brought out on his direct examination, as well as to all other facts pertinent to the issue, whether the subject of direct examination or not, and facts tending to discredit him as a witness or impeach his moral character may be elicited ; but the trial court may, in the exercise of its discretion, still further restrict the cross examination, but cannot extend it beyond the limits of such rule.
    Appeal from a judgment convicting defendant of the crime of bribery.
    Benjamin F. Tracy, for app’lt;
    John R. Fellows, Dist. Atty., and John D. Lindsay, for People.
   PARKER, J.

The indictment under which the defendant was convicted charged him with having, on the 16th day of December, 1891, at the city and county of Mew York, while a captain of police, and in charge of the Bifth police precinct of said city, asked, received, and agreed to receive from one Martin M. Edwards, a produce merchant carrying on business in said precinct, four baskets of peaches as a bribe, upon an agreement and understanding that, in consideration of such bribe, he would violate his duty as such captain of police by knowingly suffering and permitting Edwards to offend against an ordinance passed by the common council of said city relative to sidewalk incumbrances. Upon the trial the people, after proving the ordinance bearing upon the issue, defendant’s official position, the talcing of the oath of office required by law, his transfer to the Bifth precinct on the 8th day of December, 1890, and that he continued in charge of such precinct during all the period of the time referred to in the evidence of Martin U. Edwards, called Edwards, who testified that one Melvin Whispell and himself were associated together in the fruit business in the Fifth precinct; that, early in March, 1891, Augustus J. Thorne, a patrolman, approached him and said that there was a new captain in the district, Capt. John Stephenson; that lie was the captain’s private man; that the captain Used considerable fruit, and if there was no objection the captain would take fruit in place of money for protecting Edwards on the sidewalk,—to which Edwards replied that it was immaterial to him.-whether he took fruit or money, and asked Thome if he had an order for the fruit then. Thome said he had not, but would come with it the next day. The following day Thorne called and brought with him a card upon which was written “Captain John T. Stephenson, No. 274 Washington Ave., Tremont.” He handed the card to Edwards and said, “This is the captain’s address, and he wants to have a barrel of apples shipped to this address,—to ship it by the American Express.” Edwards took the card, marked a barrel of apples as requested, and delivered it to the Amei’ican Express. No attempt was made to show that the barrel of apples was delivered to Stephenson at his house, and it does not appear that Thome was the captain’s private man, nor was the captain in any way connected with him by subsequent testimony. It does Uot appear from the record that Thome’s name was ever mentioned to him in connection with the conversation to which Edwards testified, or that he ever heard of such conversation until Edwards testified to it. Edwards further testified that, in the latter part of April, or early in May, 1891, James Kelly, another patrolman of the defendant’s command, who had been in that precinct continuously from October, 1873, and who, early in February, 1891, had been especially detailed Toy the police board on corporation ordinance duty in the Fifth precinct, called on Edwards while the latter was standing on the sidewalk in front of his place of business, and told him that the captain wanted a box of Florida oranges sent up to his address. Edwards replied that he did not have any oranges, and testified that he did not send them. A month or so later Kelly reported certain violations of the corporation ordinance by Edwards and his partner to Capt. Stephenson, who promptly forwarded the complaints to the chief clerk of the police board. August 10th an action was commenced by the corporation attorney to recover penalties on four of these complaints, and judgment was rendered against Edwards thereon on the 28th of August. This judgment Edwards paid. September 15, 1891, Kelly called again, and said the captain wanted four baskets of peaches, good for canning purposes, sent to his address. Without further conversation Edwards says he personally addressed four baskets of peaches to the captain at the address which Kelly had given him in April or Mav, and delivered them to the American Express Company. Evidence was offered tending to show that the agent of the express company made delivery of the peaches at the number marked on the baskets, and the receipt book bore the signature, Mrs. John T, Stephenson. Mrs. Stephenson denied that it was her signature, or that she re» ceived the peaches, and the defendant also denied all knowledge of them. On the 28th day of September, 1891, the corporation attorney began another action against Edwards & Whispell for violation of the sidewalk ordinance^ and Edwards testified that he went at once with the notice to Gapt. Stephenson, whom he found at the station house. As to what-took place he describes as follows:

“When I first went into the station house the captain was not in his room. I inquired for the captain. They said he would be there in a few moments. In a few moments I saw him come out of a back room, and he said, ‘I am Gapt. Stephenson,’ and took me to his private office, unlocked the door, or opened the door, .and invited me in. I said to him: ‘Gapt. Stephenson, here is a notice that I have got of a fine for' obstructing the sidewalk. This is the second notice I have received. The first one I paid. I thought it was a mistake, probably, and paid it. Here is the second one I received. What is there about this? I thought I had an understanding with you that you would take care of my sidewalk.’ He said, ‘That is evidently a mistake. You leave it with me, and I will attend to it for you.’ I left the notice with him.”

Notwithstanding this interview, judgment was rendered .against him on October 19th, for $5 and costs. As soon as Edwards received notice of this second judgment, he went again to Gapt. Stephenson, and in response to the question, “State what happened,” Edwards testified as follows:

“I said to him: ‘Gapt. Stephenson, here is a notice of judgment against me. I brought the notice around to you some time ago, and you agreed to take care of that. You asked me to leave the notice with you, and you would take care of it. It is evident you haven’t done it. Here is a notice of judgment.’ He says: ‘Damn it, I told so and so to go and attend to that, but he evidently hasn’t done it. You leave this notice of judgment with me, and I will take care of it for you.’ I left it with him. By the Gourt: Q. Anything else said? A. Yes, sir. Q. Go on. A. I said to him: ‘You sent a man to me to say that yon would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit, as you have ordered it from time to time, and how is it you haven’t attended to this notice for us?’ Q. That you have taken fruit? A. We have sent him fruit. •Q. For doing what? A. For taking care of us on the walk. Q. What did he say? A. ‘Inasmuch as you have sent me the fruit, I will take care of this notice for you.’ Q. He said that? A. Yes, sir. Q. Anything else?" A. He said: ‘It is not customary for me to do this kind of business. I never lay myself liable to these people down town.’ Q. What else? A. ‘Any arrangement that Mr. Kelly sees fit to make with you, or any favors that he wants to extend to me, will be all right, and I will abide by it.’ ”

Edwards testified, also, that about the 10th of November Kelly again came to him and said, “The captain wants $50.” Edwards, replied “that he had fulfilled his agreement by furnishing him with fruit.” Kelly answered “that the captain was not satisfied with that, but wanted money,—$50.” Edwards protested that he could not afford to pay the captain the $50, and asked Kelly to see if he would not be satisfied with $25. This Kelly promised to do, but returned after two or three hours, saying that the captain would not accept it. Edwards then put $25 in bills in an envelope, addressed the envelope to the captain, sealed it up, and handed it to Kelly. Within an hour Kelly returned and threw the envelope on the desk, saying, “The captain won’t have it. It must be $50 or nothing, and you needn’t pay it if you do-not want to.” Opening the envelope, Edwards found the $25. He then made out a bill against the defendant for $12, the value of the apples and peaches, receipted the bill, placed it in another envelope with $38 in money, sealing and addressing it as before, and handed it to Kelly, who carried it away with him. The next day, according to Edwards, Kelly called on him again, and told him to go before the court and say that they had probably obstructed the walk a little, but would be careful not to do so in the future, and the judge “would rub out the judgment,” or words to that effect. This Edwards says he did, and the case was dismissed.

The first question pressed upon our attention is the ruling of the court admitting the evidence of the conversation between Edwards and the Policeman Thome against the objection of the defendant. There is no evidence whatever in this case connecting Thome with this defendant. There is no evidence tending to show that he was ever defendant’s “private man.” On the contrary, there is evidence that he never was. In-the respondent’s brief it is said that Edwards’ testimony is to the effect that defendant admitted that he had sent Thorne to him for the purpose of maldng an arrangement to have fruit sent to him from time to time. There is no direct evidence to that effect, nor is there any evidence from which such an inference can properly be drawn. The only evidence which it is even pretended tends in that direction has been quoted in full by us. The captain is alleged to have said, “Any arrangement that Mr. Kelly sees fit to make with you, or any favors he wants to extend to you, will be all right, and I will abide by it.” Nothing is said about Thome. His name is not mentioned. He is not in any way referred to. Indeed, the language used expressly excludes the claim that the captain 'referred to anything that Thorne had done. He ex- - pressly refers to Kelly, and to Kelly only. He is the acknowledged representative, and no one else. The interview occurred almost immediately after the sending of the peaches to the captain at Kelly’s request, and the expression regarding the sending of the fruit, assuming, as we must, that it was made, necessarily refers to Kelly, who was directly and solely named by the defendant in that connection. What Thorne had done occurred six months before. In civil actions ratification would never be predicated upon such evidence. How much less can it be relied upon to establish a criminal act. And yet Edwards was permitted to testify that Thorne came to him and said:

66 T am the captain’s private man. The captain uses considerable fruit, and if you have no objections, he will take fruit from you in place of money for protecting you on the sidewalk. ■ I said it was immaterial to us. We would as leave he would take fruit as money. We would give him fruit. I asked him if he had the order for fruit now. He said Ho” he would come the next day with it.”

Edwards said that he did come the next day with an order for a barrel of apples for the captain, but it does not appear that it was ever delivered to him.

When it is considered that the charge against this defendant was that he agreed, in violation of his duty as a public officer, to accept a bribe as a consideration for protecting Edwards in disobeying the law, the conclusion is inevitable that this evidence must have had great weight with the jury. Indeed, the record is not without direct evidence that the jury attached importance to it, for we learn from it that, after the jury had been charged by the court, and had retired, they returned with a request that the evidence of one of the witnesses be read, after which a juror .asked this question:

“Would I be at lberty to ask where this Thorne is? Is he out of the reach of the court?”

The assertion that this evidence was prejudicial to the defendant, and ought not to have been considered by the jury, is so clearly well founded as to be beyond the reach of reasonable controversy. The question is whether this defendant, by proper objection and exception, is in a position to make the point on this appeal His objection to its admission was seasonably and properly made, and the court, at once appreciating its forcefulness, inquired of the district attorney whether he intended “to connect the defendant with the interview between the witness and the officer Thome.” This inquiry being answered in the affirmative, the court overruled the objection, and in giving the reasons for it said:

“As I understand the district attorney, he says that he will connect this interview with the direct crime for which the defendant is now on trial, and because this interview relates to the receipt of the peaches, I overrule the objection, cautioning tho jury again that it is not to try him for the apples, nor is he to be found guilty of this indictment because he sent the apples, but it is to be connected by the district attorney with the crime with which he is charged. If not, I will strike it out.”

The district attorney did not connect it, and the evidence was not stricken out.

It is said that, while the defendant’s objection was in time, it is nevertheless not availáble to him, because he did not move to strike out the testimony before the close of the case. There are civil cases in which the courts have indulged in expressions to that effect. Bayliss v. Cockcroft, 81 N. Y. 363. 'We cannot discover any good reasons for such a rule even in civil actions, and certainly it ought not to obtain in criminal cases, in view of the policy of the law, carefully to guard a defendant from the possibility of .harm from evidence calculated to prejudice a jury rather than to prove the offense charged; nor have we found a criminal case in which the existence of such a rule has been asserted. Such a rule would place a premium upon the recklessness of prosecuting counsel. By a promise to connect, he could deprive a defendant of an exception which, but for.it, would be well taken. To assert that a defendant may be deprived of the protection of the law simply upon the assertion of counsel, is a novel proposition, to say the least. But the contention of the people amounts to this and nothing more. The testimony offered was inadmissable as the evidence then stood. The court so held. Thereupon the counsel for the people promised to connect it, but he failed to keep his promise; and in such case it should be held that the promise, whether made in bad faith or in good faith, because based upon inaccurate information, should operate to the prejudice of the party accused. Such a result must necessarily ensue if a defendant be compelled to move to strike out the prejudicial and incompetent evidence. We think, where such evidence is admitted because of the assertion of counsel of his ability and intention to connect it, that if the assertion he not kept good, the counsel making the promise should be compelled to withdraw the testimony from the consideration of the jury. He is the party responsible for the wrong, and should be compelled to right it in so for as he is able.

The prosecution were permitted, against the objection and exception of the defendant, to prove in detail all of the property, real and personal, owned by the defendant, as well as that possessed by his wife. The learned counsel for the prosecution con-' ducted the examination on this subject in a manner calculated to produce a decided effect upon the minds of the jury. He first showed by the defendant that, when'he became a member of the police force, all of his property did not exceed in value $500 or $600. This was followed by proof of the date of his appointment as patrolman; the amount of his salary during the several periods when he was patrolman, sergeant, and captain; the date of his marriage; number of his children; the location of his residence; the fact that he had not inherited any property, except about $1,500; and specifically and in detail he was inquired of as to the sums paid by him for property from time to time,—= the result being that it was made to appear that he was ■worth between $9,000 and $10,000 at the time of the trial. Without any warning or chance of preparation, the defendant was called upon to make such an accounting of his business affairs, covering seventeen years of active life, as should satisfy the jury that the property which he or his wife owned was not the fruit of various acts of bribery. The object which the counsel for the prosecution had in mind in offering this evidence is apparent. The defendant was indicted for receiving, hs a bribe, four baskets of peaches. In making out the case for the people, the request by Thome for a barrel of apples, under circumstances already adverted to, was shown. It was made to appear that Kelly told Edwards to send the captain a box of oranges, which was not done, that Edwards expressed four baskets of peaches to the captain, and that Kelly tried to collect of Edwards $50, which he said was for the captain. But as each of the charges was positively denied by the defendant, and his wife had denied that the peaches ever came to the house, the prosecution sought to strengthen its position before the jury by the introduction of evidence from which they should draw the inference that the defendant’s property was not obtained honestly, but was the outcome of a system of bribery, of which the offense charged in the indictment was but a single instance. The assertion that this evidence did not tend in any degree to prove the offense charged against the defendant, that it had no bearing whatever upon any legitimate issue, and that its only effect was to inflame the prejudices and arouse the indignation of the jury, requires no argument for its support. It is obvious that it is true.

It is not pretended, in support of the judgment, that if the people had offered independent evidence of the defendant’s poverty before becoming a policeman, and that the value of his property at the time of the trial was $10,000, such evidence would have been admissible. It is urged, however, that, the defendant having elected to become a witness, the limitations of his cross-examination were within the discretion of the court. This is not a correct statement of the rule. The principle that an accused person who becomes a witness in his own behalf thereby places himself in the attitude of any other witness, in respect to the right of cross-examination, has been announced in many cases. Brandon v. People, 42 N. Y. 265; Connors v. People, 50 id. 240; Stover v. People, 56 id. 315; People v. Casey, 72 id. 394. But the general scope of such a cross-examination is well defined and the courts will not allow any transgression of the well-understood limitations. In People v. Tice, 131 N. Y. 651; 43 St. Rep. 573, the leading case cited by the people, the boundaries of a cross-examination of a defendant in a criminal action are held to be that he may be required to answer questions affecting his credibility, or as to matters relative to the issue, although having no relation to his testimony on the direct examination. The opinion also refers to the discretion to be exercised by the trial court on such a cross-examination, and concedes that it may properly restrict it, but denies that it may extend it beyond relevant matters or matters affecting credibility. The rule, and the reason for it, found expression in People v. Brown, 72 N. Y. 571, the court, through Chief Justice Church, saying:

“I am of the opinion that the cross-examination of persons who are witnesses in their own behalf, when on trial for criminal offenses, should, in general, be limited to matters pertinent to the issue, or such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided, practically, by the observance of this rule.”

In People v. Crapo, 76 N. Y. 2,88, the defendant, who was on trial for burglary, was asked, on cross-examination, if he had been arrested on a charge of bigamy. The court, in holding the question inadmissable, stated the true rule to be that the disparaging questions must either be relevant to the issue, or such as clearly go to impeach the moral character and credibility of the witness. In People v. Court of Oyer and Terminer, 83 N. Y. 460, the court held that the range and extent of a cross-examination of a defendant in a criminal case is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. Other cases, in great number, might be cited to the same effect, but as we have found none to conflict "with them, it is unnecessary.

From these cases we understand the rule of cross-examination of a defendant in a criminal case to be, that he may be inquired of in relation to the facts brought out in his direct examination, as well as of all other facts pertinent to the issue, whether the subject of direct examination or not, and that facts tending to discredit him as a witness, or impeach his moral character, may also be elicited; that while the trial court may, in the exercisp of its discretion, still further restrict the cross-examination, it cannot extend it beyond the limits of such rule. The defendant’s counsel, on his direct examination of the defendant did not open the door for the cross-examination we are considering. It is not pretended that it was pertinent to the issue before the epurt, and it need not be argued, we take it, that proof that a witness accumulated between $9,000 and $10,000 in seventeen years does not tend to discredit him, or impeach his moral character.

It follows that, if the views expressed be sound, the'judgment of conviction must be reversed, and a new trial granted.

YA27 BRTT27T, P. J., concurs.

FOLLETT, J.

I cannot concur in the conclusion reached in the prevailing opinion, that the testimony of Edwards and Whispell, detailing the conversation had between themselves and Policeman Augustus J. Thorne, in March, 1891, was irrelevant ■or incompetent.

Edwards testified:

“He (Thorne) said: eI am the captain’s private man. The captain uses considerable fruit, and, if you have no objections, will take fruit from you in place of money for protecting you on the sidewalk.’ ”

Whispell testified:

“Thorne said we had a new captain, and he was the captain’s man, and that he was looking for the sidewalk business,—something to that effect,—and suggested fruit in payment for the use or protection of the sidewalk.”

Both Edwards and Whispell testified that on the next day Thorne called, and left the defendant’s card, on which was his address, and that a barrel of apples was sent to him on the same day by the American Express. They testified that in April or May Policeman James Kelly called, and informed them the captain would like to have a box of Florida oranges sent to his house, and they replied they had none. They further testified that, September 15, 1891, pursuant to Kelly’s request, they sent four boxes of peaches to defendant’s house. In September the firm was fined for incumbering the sidewalk, and Edwards testified that he called on the defendant and inquired why he had not been protected, and said to him: ■

“You sent a man to me to say that you would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit, as you have ordered it, from time to time, and how is it you haven’t attended to this notice for us?”

The defendant replied:

“Inasmuch as you have sent me the fruit, I will take care of this notice for you.”

This conversation between Edwards and the defendant clearly referred to the arrangement made with Thome, for no arrangement had been made with Kelly to pay the captain in fruit for his protection. The captain, by. his answer, assented to the statement that he had sent a man to arrange to take fruit for protection, This conversation, assuming that it was had, which was a question for the jury, could have referred to no other arrangement but the one made with Thorne, and both the defendant and Edwards must have so understood it. The defendant did not inquire: “What arrangement? With whom was it made?”

From May 5,1877, to December 23,1884, the defendant served as a patrolman and roundsman, at an annual salary of $1,200. During this period his-pay amounted to $8,050. From January 23, 1884, to December 23, 1887, he served as sargeant, at an annual salary of $1,600. During this peiiod his pay amounted to $6,066. From December 23, 1887, to September 6, 1894, he served as captain at an annual salary of $2,750. During this period his pay amounted to over $18,600. During his service of seventeen years and four months he received in salary more than $32,700; worth when appointed, $500; received from his wife’s estate, $1,500,—$34,700. By his cross-examination it was shown that he had the following property: A mortgage for $3,000; a farm, for which he paid $4,100; a city lot, in the name of his wife, for which he paid $2,000; an interest in a house, above the mortgages, $2,100,—$11,200. His interest in the house was subject to mortgages amounting to $18,900. On his redirect examination he testified that he was not worth to exceed $10,000. His testimony did not tend to show ill-gotten gains. On the contrary, the inference to be drawn therefrom was that he had not acquired property by blackmail or by bribery. The subjects on which a witness may be cross-examined for the purpose of determining his credibility, as well as the extent of such cross-examination, are largely in the discretion of the trial court, and depended upon the facts, of each case, and when it appears that the credibility of a witness was strengthened rather than impaired by a cross-examination, even on immaterial subjects, it is not a legal error for which a new trial will be granted. The court, in its instruction to the jury, made no allusion to these facts, and it is not asserted that the prosecuting officer did, and these facts might and may have been urged with great force by the defendant’s counsel to show that the defendant had not been the recipient of bribes or of blackmail. I am unable to see how the defendant could have been injured by this cross-examination.

It is charged in the indictment that, September 15, 1891, the defendant received from Edwards four baskets of peaches as a bribe for not performing his duty in respect to the sidewalk in front of Edward’s store. Whether he received the peaches was the crucial issue of fact. Edwards and Whispell swore that he did, and that they were delivered through the American Express Company. The defendant denied it. His wife denied it. A way bill, of which the following is a copy, was introduced in evidence; , '

William F. Herger testified that, September 15,1891, he was a driver for the American Express, and on that day received the waybill, and delivered four baskets of peaches at the defendant’s residence, Ho. 2074 Washington avenue. In corroboration of his testimony, the delivery sheet on the preceding page was read in evidence.

The fact that defendant’s name in the waybill was misspelled “Stevenson,” and that No. 2082, instead of 2074, Washington avenue was erroneously inserted by Herger in the delivery sheet, are matters of slight importance, and not sufficient to discredit the documentary evidence and the testimony of three witnesses. Under the circumstances of this case, it is impossible to believe that Edwards, Whispell, and the employes of the express company, in September, 1891, more than three years before this indictment was found, entered into a conspiracy to manufacture these documents. They had no motive. The defendant and his wife testified that the peaches were not received. The wife swore that the signature in the delivery sheet was not hers. The defendant swore that the signature did not resemble the handwriting of his wife, and also that it might look a little like it. Upon this conflicting evidence, the conflicting testimony of the defendant and Edwards in respect to their interview at. the station house, and evidence in regard to the prosecution of Edwards for violating the ordinance relating to sidewalks, and the discontinuance of some of those prosecutions after the last interview at the station house, and other evidence which need not be referred to, this case was submitted to the jury, under instructions which were eminently fair, and not unfavorable to the defendant, and he was convicted. I am unable to find any error calling for a reversal of the judgment.

Code Or. Proc. § 542. “After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.”

The judgment should be affirmed.  