
    The People of the State of New York, Respondent, v. James Irving, Appellant.
    Upon tlie trial of an indictment for an assault, where the defendant as a witness in his own behalf had given material testimony, in conflict with that given on the part of the prosecution, held, that it was proper, within the discretion of the trial court, as bearing upon his credibility, to ask him upon cross-examination if he had not committed an assault upon another person.
    (Argued March 20, 1884;
    decided April 15, 1884.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 25, 1884, which affirmed a judgment, entered upon a verdict convicting the defendant of the crime of assault in the second degree.
    The facts appear sufficiently in the opinion.
    
      W. Bourhe Gochran for appellant.
    It was error to compel the defendant to testify as to offenses committed by him not embodied in the indictment or'in any way connected with the crime charged therein. (People v. Crapo, 76 N. Y. 291; People v. Gay, 7 id. 378; People v. Genung, 11 Wend. 19; Brown v. People, 72 N. Y. 571; Therasson v. People, 20 Hun, 68; Pontius v. People, 82 N. Y. 350; Ryan v. People, 79 id. 593; People, ex rel. v. Oyer & Terminer, 83 id. 460; Nolan v. City of B'klyn, 87 id. 63; Coleman v. People, 58 id. 562.)
    
      John Vincent for respondent.
    Under section 714 of the Penal Code the prosecution had a right to show that the accused had been convicted of other offenses. (Ryan v. People, 79 N. Y. 593.) Ho specific ground of objection having been alleged the objections taken by defendant’s counsel were valueless. (Turner v. People, 33 Mich. 362, 382; Adams v. State, 25 Ohio, 584, 587.) Defendant could not have suffered by the question objected to, as his answers were harmless. (Nolan v. City of B'klyn, 87 N. Y. 63; Code of Crim. Pro., § 542.)
   Finch, J.

Upon the trial of an indictment for assault and battery, the defendant testified in his own behalf as a witness. According to the evidence of the complainant, and one witness who corroborated him, the assault was without provocation, and so brutal and causeless as to indicate in the perpetrator either temporary intoxication, or unusual ugliness of temper. But according to the evidence of the accused and of three witnesses whom he called in his behalf, the complainant rushed at him with abusive language and a bottle in his hand, and the defendant merely laughed and walked out. And these witnesses further said that after this occurrence, the complainant and one McDermott had a fight, from which, inferentially, the complainant’s injuries might have arisen. A question of fact of a very serious character was thus presented to the jury. There was falsehood upon one side or the other, and to reach the truth much regard was to be had to the respective credibility of the witnesses, and to their moral characters. The cross examination of the complainant recognized the situation, and a series of disparaging questions were put to him and answered; as to whether he had kept a gambling house; had been arrested for beating a woman; had bitten a man’s thumb off; had shot a man named Miller; none of which were objected to. If the complainant had done these things; if he was the sort of man such a history described ; it was due to the accused, whose libr erty was imperiled by the testimony, that the jury should learn something of the character of the witness.

On the cross-examination of the accused, similar disparaging questions were put, but to these, objections were interposed, which were overruled, and the exceptions taken are now before us.

All the inquiries except two were answered in the negative. The prosecution .was bound by these replies, and the series- of questions thus answered cast no discredit upon the witness and did him no possible harm. The jury were bound by his denials, and the inquiries drew out no facts from which discreditable inferences could be drawn. The answers rendered the questions innoxious.' But that cannot so easily be said of the remaining two inquiries. One of them, however, does not raise the question sought to be presented. The accused had just been asked if in 1870 he gouged both of the eyes out of a man named James and answered in the negative. He was then asked, “ didn’t you do the same thing with aman named Ferguson, in 1881?” to which he answered, “I did not gouge his out.” That answered the inquiry. Nothing further in respect to that occurrence was asked of the witness, and no added statement was required. What followed was his own voluntary declaration, which he need not have made, and which was not drawn from him by any question of the prosecutor. The witness added, I struck him,” and then went on to explain the circumstances, showing plainly that Ferguson was the aggressor, and the accused acted only on the defensive.

But the inquiry whether the witness did not assault Smith Weed, a member of the legislature, and which was answered in the affirmative, although followed by an explanation, cannot be certainly deemed harmless, and is not, therefore, within the doctrine of Nolan v. Brooklyn City & N. R. R. Co. (87 N. Y. 68; 41 Am. Rep. 345). There the witness was asked not what he had done, but what the tire department had done ; whether it had expelled him. We have held of late that mere charges or accusations, or even indictments, may not so be inquired into since they are consistent with innocence, and may exist without moral delinquency. (People v. Crapo, 76 N. Y. 288; 32 Am. Rep. 302; People v. Brown, 72 N. Y. 571; 28 Am. Rep. 183 ; Ryan, v. People, 79 N. Y. 594.) An expulsion from the fire department might be summary or arbitrary and with little or no chance of a fair trial, or for causes involving no crime and not affecting the moral character; and so it turned out upon the answer given, which effectually barred any injurious inference. But this is not such a case. The witness was asked if he assaulted a fellow member of the legislature, and was expelled from that body. He denied the expulsion, but admitted the assault. He confessed, what unexplained, was the commission of a crime, and which, as was said in People v. Brown (supra), tended to impair the credit of the witness by its tendency to establish a bad moral character.” In a closely balanced case it could hardly fail to affect his credibility. We have read carefully the explanation which the accused gave. It does not mend the matter much. At all events we cannot say that taking question and answer and explanation together, the product was not an injury to the accused.

That brings us to the inquiry whether the question asked was proper. We think it was so; within the discretion of the trial court; and its permission not an abuse of that discretion. The rule, as it stood before any restriction or limitation was put upon it, was stated in Real v. People (42 N. Y. 281), where the witness was such merely, and not the party. It was then said that for the purpose of discrediting his testimony the witness may be asked upon cross-examination as to specific acts, and the propriety and need of such a rule was argued at length. In People v. Crapo (supra), the limitation was applied that facts must be inquired about, and not mere accusations whose truth was not to be presumed, and which, therefore, did not tend to impair the moral character. That decision was made in 1879, and just one year later than the case of People v. Casey (72 N. Y. 393), which decides the precise question here involved, and in which the chief judge who wrote the opinion in the Crapo Case concurred. The prisoner stood indicted for assault with a dangerous weapon, and testified on his own behalf. On cross-examination the prosecutor was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed, and it was held no error. Facts were asked for there, and not accusations or irresponsible charges, and so no occasion arose for the limitation which one year later was needed and applied. A little later, in Ryan v. People (supra), the rule was still conceded that questions as to specific facts which tend to discredit the witness, or impeach his moral character may be asked on cross-examination ; but it was held that an indictment was a mere accusation and had no such legitimate tendency. In People v. Noelke (94 N. Y. 143, 144), the cases were reviewed, and we held on an indictment and trial for selling lottery tickets that the defendant, testifying in his own behalf, might be asked on cross-examination not only whether he had been convicted for sending lottery papers through the mail, but also whether for a period extending before the offense with which he was charged, he had been engaged in the lottery business.

The General Term seem to have thought that an assault committed upon other persons would not necessarily or properly tend to impeach the moral character, or impair the credit of the witness.” We held the exact contrary in People v. Casey. The questions there sustained were admissible upon that ground alone, and the case is decisive of this. The assault upon Weed, unexplained and unjustified, was a crime punishable by fine or imprisonment. It indicated disregard of the law, contempt for personal rights, and an ungovernable temper prompting to a criminal act. If we are ever to roam through our Penal Code in search of a crime capable of being committed without indicating a defective moral character, we shall not select the one here in question.

Whether the pistol in the hands of the defendant was an instrument or thing likely to produce grievous bodily harm, was a question of fact for the jury. (Nelson v. People, 23 N. Y. 298; Abbott v. People, 86 id. 471.) Although the weapon was not produced, or otherwise described than by its common name, yet it was capable of being used otherwise than by firing, and such description by its name, in connection with the character of the wound inflicted, was sufficient to carry to the jury the question of fact.

We discover no error in the record and the judgment should be affirmed.

All concur, except Bu&eb, Oh. J., and Bapallo, J., not .voting.

Judgment affirmed.  