People v. Fielding

• Decision Date: 18 April 1899
• Citation: 53 N.E. 497,158 N.Y. 542
• Parties: PEOPLE v. FIELDING.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 542

53 N.E. 497

PEOPLE

v.FIELDING.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, appellate division, Second department.

Robert W. Fielding was indicted for conniving at the auditing of a fraudulent claim against the city of Brooklyn, and from a judgment of the appellate division (55 N. Y. Supp. 530) affirming a conviction he appeals. Reversed.

Haight, Gray, and O'Brien, JJ., dissenting.

Charles J. Patterson, for appellant.

Hiram R. Steele, Dist. Atty., for the People.

VANN, J.

We think that the record before us is free from reversible error, except as to a single question, which is raised by the following extract from the appeal book, transscribed literally, so that it may speak for itself: ‘The district attorney, in summing up, said: ‘Defendant changed his style of living from a frame house on Prospect avenue to a palatial residence on Eighth avenue, which every man knows cannot be maintained in the style of that neighborhood for less than ten thousand dollars a year.’ (Objected to.) The Court: ‘There is no evidence of that.’ By the District Attorney: ‘I appeal to the common sense of the jury.’ The Court: ‘There is no other comment required, than the statement of the fact that there is no evidence in the case as to how much it cost to maintain an establishment on Eighth avenue.’ By the District Attorney: ‘There is no evidence, but you will not prohibit their using their experience,’ etc. In further summing up, he said: ‘Go and spend an hour in the tax collector's office the day after the tax levy is confirmed, and look at the long line--’ (Objected to by the defendant.) The Court: ‘I do not think this interruption is called for.’ By Defendant's Counsel: ‘I will take an exception, if your honor will permit him to proceed on that line.’ The Court: ‘I will hear what he says, first.’ By Defendant's Counsel: ‘I ask to have it taken down. I ask you to stop him at this point, and take an exception.’ The Court: ‘I cannot do both. I cannot have it taken down and have him stopped, also. Proceed.’ By the District Attorney: ‘I say, visit the tax office on the day after the annual taxes are confirmed, and look at the long line, that stretches out into and down the street, of people that are willing to stand there all day in order to save the little rebate which early payment secures. Those people are the victims of the defendant's fraud.’ By Defendant's Counsel: ‘Does your honor permit him to proceed in this fashion?’ The Court: ‘Yes.’ By Defendant's Counsel: ‘I will take an exception.’ By the District Attorney: ‘This interruption is outrageous. Counsel should be instructed to take his exception when I have finished.’ By Defendant's Counsel: ‘Have I right to take it-’ The Court: ‘I do not think it is called for. That is all I can say. I can only say that I do not think these continual interruptions are called for.’ By Defendant's Counsel: ‘I have a right to take an exception.’ The Court: ‘Yes; you have.’ By the District Attorney: ‘But at a later time.’ By Defendant's Counsel: ‘I think not.’ By the District Attorney: ‘The purpose is to break the effect of anything I may say to you. He knows it is improper.’ By Defendant's Attorney: ‘I do not.’ By the District Attorney: ‘I say the people that you will find there in a line on that day are the victims of the defendant's crime. You will find there the widow that has starved her brood of little children, and seen their faces get pinched and haggard, in order that she might be sure that tax day should not find her with empty hands. It is that woman's money, coined out of her blood and the blood of her children, that the defendant has stolen and squandered. If you will indulge the pitiful sentiments of your hearts, think of her. Oh! there are unwritten tragedies of that sort enacted, not in the luxurious habitations of Eighth avenue, but behind the shabby front doors of poor neighborhoods. Look at the old man standing in line, clutching in his knotted fingers his last year's receipt--’ By the Defendant's Counsel: ‘Does your honor permit this? Is this in your ruling?’ The Court: ‘I am going to permit him to sum up his case.’ By Defendant's Counsel: ‘I ask you to stop him at this point about the descriptions of the old man with the knotted fingers.’ The Court: ‘Proceed.’ By Defendant's Counsel: ‘I will take an exception.’ By the District Attorney: ‘You ought to be ashamed.’ By Defendant's Counsel: ‘You ought to be ashamed of yourself, to talk to a jury like this.’ The Court: ‘I think it is perfectly proper, but there is nothing I can do to compel the attorney of the defendant to take the ruling of the court.’ By Defendant's Counsel: ‘Let him go on. I shall not interrupt him with another word. Let him describe all the knotted fingers in the land.’ By the District Attorney: ‘And the claque that stands behind the rail--’ The Court: ‘Proceed.’ By the District Attorney: ‘I say you will see old men in that line clutching in their knotted fingers rolls of dirty one-dollar bills. Look at their worn and shabby garments. Look at the marks of painful labor written all over their aged and clumsy limbs. It is the money of these people which the defendant has stolen and squandered. These are the people whose cause I plead. These are the victims of the defendant's crime. These are the people who how, by tens of thousands, are waiting outside for your verdict. Will you do them justice, or will you not? If you shall let this man, loaded with his guilty plunder, escape, then I say you have committed the unpardonable sin.’'

In charging the jury the court said: ‘Some things have been said about the newspapers, about popular clamor, and about the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case. What the clamor may be, I do not know; I have never heard of it. What the newspapers may have said, I do not care; I have never read it. How much the people may or may not be burdened, no matter. If the times were prosperous, a public official has no right to make an assault upon the public treasury, or to aid others in doing so, and he must be tried only for the crime he has committed, if he has committed one; and it would be wrong, in the extreme, to assume anything, and allow it to weigh against this lefendant, because of hard times, or because of difficulties which the people who pay money into the city treasury may or may not have in acquiring the means of making the payment.’ Upon the request of the defendant he further charged ‘that there is no evidence in the case which would justify the jury in finding that it was more expensive to live upon Eighth avenue than in Prospect avenue,’ and ‘they are not to consider any facts but those which have been proven by the witnesses or the exhibits.’

We do not wish to express any views which would restrict counsel in fair argument, comment, or appeal. We object, however, to the assertion by the learned district attorney of facts not proved, to his inflammatory appeals to passion and prejudice, and to his threat to the jury of popular denunciation, all under the sanction of the trial court. If the record in this case is sustained by the deliberate judgment of the court of last resort, it is difficult to see the limit to intemperate language, unproved assertion, or pernicious appeals on the part of counsel for the prosecution, except their own sense of propriety. The law, in our judgment, does not thus leave an accused person, presumed to be innocent until proved to be guilty, bound and helpless in the hands of his accuser. Even in a civil action, when counsel are permitted, under objection and exception, while summing up, to read to the jury an abstract from a pamphlet or newspaper, or to exhibit a cartoon, not in evidence, it is good ground for reversal. Koelges v. Insurance Co., 57 N. Y. 638;Williams v. Railroad Co., 126 N. Y. 96, 26 N. E. 1048; McKeever v. Weyer, 11 Wkly. Dig. 258. So statements made by counsel, outside of the evidence, and subject to objection, which strongly tend to arouse sympathy, prejudice, or resentment in the minds of the jury, require a new trial, even if the court charges that they have nothing to do with the case, and must be disregarded. Halpern v. Railroad Co., 16 App. Div. 90,45 N. Y. Supp. 134;Bagully v. Association, 38 App. Div. 59,56 N. Y. Supp. 605. Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi judicial officer, representing the people of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy, or resentment. By such a course, in the long run, he throws away much of his strength, because his violent and reprehensible language betrays his bias, and finally weakens his influence with the jury. As was said by Judge Earl in People v. Greenwall, 115 N. Y. 520, 526,22 N. E. 182, ‘The district attorney, representing the majesty of the people, and having no responsibility, except fairly to discharge his duty, should put himself under proper restraint, and should not in his remarks, in the hearing of the jury, go beyond the evidence or the bounds of a reasonable moderation.’ Neither in that case nor in People v. Brooks, 131 N. Y. 321, 329,30 N. E. 189, was any objection made or exception taken. In the former, which was a capital case, the court was not bound to interfere, while in the latter, which was an appeal from the general term, it had no power to interfere, without an exception. As the admonition of the court has not proved sufficient to prevent...