People v. Elliott

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BARTLETT
• Citation: People v. Elliott, 163 N.Y. 11, 57 N.E. 103 (N.Y. 1900)
• Decision Date: 01 May 1900
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK P. ELLIOTT, Appellant.

163 N.Y. 11

57 N.E. 103

PEOPLE

v.ELLIOTT.

Court of Appeals of New York.

May 1, 1900.

Appeal from supreme court, appellate division, Third department.

Frank P. Elliott was convicted of rape in the second degree, and from a judgment of the appellate division affirming such conviction (60 N. Y. Supp. 1145) he appeals. Reversed.

John P. Wheeler, for appellant.

W. B. Matterson, for the People.

BARTLETT, J.

The defendant stands convicted of the crime of rape in the second degree, committed upon the person of his daughter, 13 years old. The appellate division unanimously affirmed the judgment of the trial court, and we are consequently confined to the consideration of alleged legal errors duly raised by exceptions relating to the reception or rejection of evidence and the charge of the trial judge. It is the duty of a court of last resort to see to it that every person charged with crime is accorded an impartial trial, and the enjoyment of every legal right. In a case like the one before us, where the indictment charges a heinous and unnatural offense, it is most difficult to secure an absolutely fair trial. The learned appellate division wrote no opinion. We have examined the record with care, and find that it discloses reversible error.

In the course of the trial it appeared, in a general way, that some 12 years prior to this indictment the defendant's wife sued for a limited divorce on the ground of cruel and inhuman treatment; that the defendant, under advice of counsel, interposed no defense, and judgment was entered against him; that for about 10 years before the present charge the defendant and his wife lived together again in the marital relation. At the close of all the evidence the district attorney offered the judgment roll in the divorce suit in evidence, but the trial judge excluded it. The defendant produced a number of witnesses who testified to his good character. The district attorney, in cross-examining two of these witnesses, was allowed, over the defendant'sobjection and exception, to ask this question: ‘If it should develop that a judgment of the supreme court of this state had granted a divorce on the ground of cruel and inhuman treatment, and in that judgment it stated ‘that at the house of Reuben Bixby, in the village of Greene, and at other places in the village of Greene, the defendant struck, kicked, choked, injured, and had frequently threatened to kill the plaintiff and said child, Grace B. Elliott, and the treatment and conduct of the defendant to and towards the plaintiff during said time has been cruel and inhuman, and such that it is improper and unsafe for the plaintiff and defendant longer to live together as husband and wife’-If that was attested as a fact in the supreme court, what would you say as to this man's character being good or bad?' This clearly incompetent question was highly prejudicial to the defendant; placing, as it did, before the jury that particular portion of the former judgment upon which the prosecution laid stress. At this stage of the trial the judgment had not been offered in evidence, and there was nothing before the court to show that the document quoted from was in fact the duly-authenticated record of the supreme court. The subsequent refusal of the trial judge to admit the judgment in evidence did not cure this error, as the question was allowed to stand, and its effect upon the minds of the jury remained unbroken. It was competent for the district attorney to ask the witnesses, who had testified to defendant's good characer, whether they had heard of the divorce proceeding, and, if so, whether it qualified to any extent their previously expressed opinion as to defendant's good character. It would also be proper for defendant to show, in reply to this cross-examination, that since the judgment he and his wife had voluntarily resumed marital relations.

The second legal error is found in the refusal of the trial judge to charge as to the weight the jury...