
    Supreme Court—Appellate Division, Fourth Department.
    March, 1901.
    THE PEOPLE v. GILBERT MILKS.
    (70 App. Div. 438.)
    1. Arson—Trial—Cross-examination oe Unfriendly Witness.
    On the trial of an indictment charging defendant with procuring S. to set fire to certain buildings owned by defendant, a relative by marriage of defendant testified as to conversations with him after the fire and that he procured witness to go and see whether S. had disclosed information about the fire. The court on cross-examination refused to allow defendant’s counsel to show that there had been some trouble between his family and defendant by reason of which he entertained hard feelings against the latter. Held, error, as if was most appropriate to disclose if possible the unfriendliness of the witness.
    2. Same.
    Where a witness who testified that upon the night of the fire he saw defendant at such a locality as to have rendered it impossible for him to have committed the crime, was so vigorously cross-examined by the district attorney as to his failure to disclose this earlier, as to seriously affect his credibility, it was error for the court to refuse to allow defendant’s counsel on re-direct examination to have him explain his reason for such delay.
    3. Same.
    Where the person who was jointly indicted with defendant for causing the fire had given evidence which, if true, entitled the latter to acquittal, the defendant was entitled to show that such person had been tried on the indictment and acquitted, not as a bar to the conviction of defendant but for the purpose of disclosing the situation of the witness.
    Appeal by the defendant, Gilbert Milks, from a judgment of the County Court, of Cattaraugus county, in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 14th day of June, 1901, upon the verdict of a jury convicting him of the crime of arson in the third degree, and also from an order entered in said clerk’s office on the 14th day of Jjiue, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      M. B. Jewell, for the appellant:
    J. M. Oongdon and George W. Cole, for the respondent
   Hiscock, J.

The defendant was jointly indicted with one Mitchell Smith for having, upon June 4, 1898, set fire to a certain bam which was the property of said Milks. He was tried separately and apart from Smith. He was convicted upon a previous trial, but such conviction was reversed by this court.

Milks was several miles away from the place of the fire at the time it occurred, and the theory of the prosecution is that he procured Smith to set fire to the barn and other buildings which were burned with it.

Although it does not appear in the record, it did appear without contradiction upon the argument that Smith upon a second trial has been acquitted. We, therefore, start out with the somewhat incongruous and illogical condition that Smith, who was charged with actually having applied the match to the buildings, has been found by the jury not to have done so, and that the defendant, who is charged with having fired said buildings only and solely through the hand of Smith, is found to have committed such act.

Defendant’s counsel has urged with great vigor and earnestness that upon the merits the evidence in this case was not sufficient to' sustain the verdict of the jury, and that the latter should be set aside as against the weight of evidence. The conclusions we have reached as to the merit and correctness of certain objections and exceptions taken upon the trial in behalf of the defendant, render it unnecessary for us to pass upon such contention. As leading up to and bearing upon the review of the exceptions referred to, however, we not only may but should bear in mind that the evidence certainly presented a very close question of fact as to- the guilt of the accused. The decision as to his guilt or innocence upon the testimony offered called for the most careful deliberation and well-directed consideration by the jury. In addition to the fact, not at all uncommon, that the evidence against him was purely circumstantial, a large portion of testimony which, from its nature, must have had great weight with the jury, related to defendant’s alleged attempts to bribe witnesses and suppress evidence. Some of the latter certainly crowded to the border line of competency.

We refer to these features as indicating the great degree of protection from the erroneous omission and rejection of evidence to which the defendant was entitled. Upon a trial where the testimony was so conflicting an error which, in some other case could be regarded as immaterial, might easily be sufficient to supply the little additional weight necessary to turn the verdict against him. The presumption always applicable unless clearly rebutted by the record, that an error committed against the defendant upon a criminal trial is material and harmful, especially applies to this case.

In three instances evidence sought by the defendant was, upon the objection of the People, excluded by the learned county judge, and in our opinion error thereby was committed.

One Fuller, having been sworn in behalf of the People, testified to alleged conversations with the- defendant after the fire, in which the latter in substance raised the question whether Smith had disclosed information about the fire, and procured said Fuller to go and see the latter upon this subject. Fuller tvas a connection by marriage of the defendant. His evidence was quite long, and, if believed, tended strongly to prove guilty relations by the defendant to the fire. In fact, there was no one witness in our opinion whose testimony, if believed, was liable to be more potential against the prisoner. Upon the cross-examination defendant’s counsel sought, first, to show that there had been trouble between the latter and a brother of the witness who was sworn upon the former but not upon this trial. Such evidence as was then asked for was objected to and properly excluded. The defendant’s counsel then asked these questions: Q. Did you understand that at one time Gilbert Milks had been instrumental in getting your brother Wilson D. Fuller indicted for selling hard cider and by reason of that do you entertain some hard feelings against Milks ?”

The district attorney objected to the first part of the question, and the court sustained the objection and the defendant duly excepted.”

It was then asked: “ Q. Did you know that there had been some trouble between Milks and your family in the past?” This question was objected to and excluded.

We are unable to formulate any sufficient reason for excluding this evidence. The first question fairly called for the attitude of the witness toward the man against whom he was testifying. It not only was not objectionable, but eminently proper to embody in the question calling for his feelings the further query as to the cause upon which they were based. We know of no more elementary rule than that one of the chief purposes of a cross-examination is to disclose .the situation and disposition of a witness, whether friendly or unfriendly, towards the respective parties to the litigation in which he is testifying. In this case, with the presumption which would naturally arise in the minds of jurymen, that on account of his relations with defendant he would be favorably predisposed towards him, it was most appropriate that an opportunity should be offered to disclose, if possible, that this was incorrect and that his attitude was really one of unfriendliness.

One Perkins was called in behalf of the defense to testify that upon the night of the fire he saw Smith at such a locality as practically to have rendered it impossible for him to have started the conflagration as claimed by the prosecution. The district attorney most vigorously and pointedly crossrexamined this witness as to his failure to disclose this knowledge and information' earlier in the litigation. His cross-examination' tended to raise a serious doubt as to the probability of this witness having maintained silence so long if he really possessed the knowledge in question. Upon the redirect examination, the counsel who had called the witness sought to have him explain why he had not so disclosed his information that it might be earlier utilized by the defendants who were on trial. This evidence was objected to and excluded, and thereby we think another simple and elementary rule in regard to the examination of witnesses was violated. The evidence of this witness, if it was true, was of great importance to defendant. The counsel for the People had by his crossrexamination apparently seriously affected his credibility, and it was justly due to the defendant that he might call upon the witness to give any explanation which would reinstate him in the good opinion of the jury. The district attorney rather seeks to sustain these rulings upon the theory that it would be impossible for the witness to give any reasonable or decent excuse for his reticence under the circumstances; also that the defendant’s counsel in one of his questions indicated the excuse which witness would have given, and that if so given it would have been clearly frivolous. As to the latter, we do not think it can be assumed that the witness would necessarily have given an excuse framed in the words of counsel’s question, and as to the former, we think it was his privilege to give his excuse and let the jury pass upon its efficacy.

Defendant called as a witness in his behalf Smith, who was jointly indicted with him for causing this fire, and who gave evidence which, if true, absolutely entitled defendant to an acquittal. The latter’s counsel sought to show that Smith had been tried upon the indictment against him and acquitted, and this evidence was objected to and excluded.

We do not believe that this evidence was competent as offering a legal bar to the conviction of this defendant as suggested by counsel. We do, however, think that the evidence was proper for the purpose of disclosing the situation of Smith as a witness. We have no doubt from the record that the jury was fully apprised of the fact that Smith and the defendant were jointly indicted. The fact of the acquittal of the witness does not appear anywhere in the record. Apparently he occupied the stand as a witness who had a vital personal interest in establishing that the defendant was not guilty upon the theory claimed by the prosecution. We think that it was very proper, under all of the circumstances of this, case, that it should be made to appear that he had no such personal interest, and that, therefore, his testimony was not subject to- the discrediting consideration o-f bias in that respect.

For these reasons, we conclude that the judgment of conviction and order denying the motion for new trial should be reversed and a new trial granted.  