
    The People, Resp’ts, v. Theus Taylor, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    1. Criminal trial—Evidence—Foundation necessary for admission OF STATEMENTS OF WITNESS CONTRADICTORY TO THOSE MADE BY HIM UPON THE TRIAL.
    The attention of the witness must be called to the time, place and particular language of an oral declaration, before it can be proved to impeach, statements made by him contradictory thereto upon the trial, but as regards the introduction of written statements for that purpose, it is sufficient that the witness is shown the paper itself, and admitted that he signed it, and that he knew its contents.
    3. Same—Improper rejection of.
    In a criminal prosecution, which resulted in the conviction of the defendant of manslaughter in the second degree, a witness called by the people was asked if he did not, before the coroner’s jury, give an answer to a question contradictory to that given on the trial, and on replying that he did not, he was shown his examination before the coroner, and admitted that the signature thereto was his own. Held, that the examination, was improperly rejected as evidence.
    3. Same—New trial.
    On an appeal from the conviction, Held, that the deposition before the coroner, not being returned to the court, it could not be said that its rejection did not prejudice the respondent, and there should be a new trial.
    
      J. Fleming, for the people; A. M. Weller, for app’lt.
   Barnard, P. J.

The appellant was convicted of manslaughter in the second degree. It was proven upon the-part of the People that the deceased, one Gilmore, solicited the appellant to shoot at a tin tomato can placed upon his, Gilmore’s, head. Taylor did so and succeeded in perforating the can twice. He was urged by Gilmore to try the-' experiment once more and Gilmore was shot through the-head and killed.

It appeared further in evidence that there had been several instances of the use of the pistol on the same day involving-risk to Gilmore, if there had been any uncertain aim or unsteadiness of nerve, when there had been no evil result. Taylor was a celebrated shot and was so known to be by Gilmore. They were warm friends and on the day in question Gilmore seems to have been exhibiting Taylor’s accomplishments as an expert with the pistol. The people called one Abrams as a witness to the firing and consequent-death of Gilmore. On the last occasion he testified to the facts tending to show the death of Gilmore as the result of the shot made by Taylor. He was asked if Gilmore at the shot did not raise his head, and replied that he did not know. He was then asked if he did not so testify before the coroner’s jury and replied that he did not.

He was shown his examination before the coroner and he testified that the signature to it was his. The testimony of the witness before the coroner was then offered and refused on the ground that the attention of the witness must be first called to anything in it.

This was erroneous, “As to oral declarations the attention of the witness must be called to the time and place- and particular language used in order that he may recall the circumstances and make an intelligent answer, but as to written statements this is unnecessary when the witness is shown the paper itself and admits that he made or signed it and knew its contents.” Romertze v. East River National Bank, 49 N. Y., 577.

The deposition was not returned and the court held that it could not say that the appellant in that case might not have been prejudiced by its rejection.

It is not returned in this case and the rule ought to be held more strongly in a criminal case in favor of a possible prejudice to the respondent by the rejection of the paper. The deposition was again offered at the close of the case as an impeachment of the witness Abrams and rejected.

The error was not cured by the question put to the witness after the first rejection of the paper. Only a part of the question was answered and that was immaterial to the subject of the inquiry in respect to a variance between the statements of the witness. A part of the question supposed, to be taken from the examination did not tend to impeach the witness. There was an added inquiry as to the attention of the appellant to the deceased, and the sole reply was that when the deceased was shot the accused was the first, man to him.

The theory of the defense was that the act was not culpably negligent in firing the shot.

If the deceased at the instant of the shot, changed his position, the fact was a material one for the jury. The skill of the appellant may have been so infallible that it was not such act as would support a verdict of manslaughter, when the death was occasioned by the unexpected change of position of the deceased.

Until the discrepancy can be seen the error is an apparent' one, when the appearance and legal inference may not be justified on a new trial.

Under the rule, however, there should be a new trial.

Pratt and Dykman, JJ., concur.  