People v. Greenwall

• Decision Date: 07 February 1888
• Citation: 108 N.Y. 296,15 N.E. 404
• Parties: PEOPLE v. GREENWALL.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 296

15 N.E. 404

PEOPLE

v.GREENWALL.

Court of Appeals of New York.

February 7, 1888.

Appeal from court of sessions, Kings county.

If was error to introduce evidence in rebuttal to contradict defendant upon a collateral question. People v. Ware, 29 Hun, 473, and cases cited; affirmed, 92 N. Y. 653:Stokes v. People, 53 N. Y. 164, 175.

C. F. Kinsley and A. Suydam, for appellant.

James W. Ridgway, Dist. Atty., for the People.

It is a general rule that an error in ruling, made upon the trial, which could not have prejudiced the appellant, will not be deemed upon appeal a sufficient ground for reversing the judgment. Tenney v. Berger, 93 N. Y. 524;Story v. Masonic Ass'n, 95 N. Y. 474;Thorne v. Turck, 94 N. Y. 90;Ellwanger v. Fish, 60 N. Y. 651;Flannagan v. Maddin, 81 N. Y. 623;Downs v. Railroad Co., 56 N. Y. 664.

EARL, J.

The defendant was indicted for the murder of Lyman S. Weeks in the city of Brooklyn on the 15th day of March, 1887. He was tried, and convicted of murder in the first degree, and has brought this appeal directly to this court, under chapter 493, Laws 1887. It is undisputed that Mr. Weeks was killed by a pistol-shot fired by some person who had burglariously entered his house in the night-time. There was no witness who saw or heard the shot fired, or was able to testify that the defendant was the person who fired it, or that he was present in the house of Mr. Weeks on the night of the homicide. The evidence on the part of the people to connect the defendant with the crime, and to establish his guilt, was, in substance, as follows: Three witnesses were called, who gave evidence tending to show by their identification of him that he was in the vicinity of Mr. Weeks' house on the night of the 15th of March, near the time when the homicide was committed; that, shortly before that day, he had a pistol with the same caliber as the one had which was fired at Mr. Weeks, and that after the homicide it disappeared from his possession; that on the night of the homicide he wore a Prince Albert coat, which also thereafter disappeared. In addition to this there was evidence that the defendant was a burglar, an associate of criminals, and that shortly after the homicide he confessed the crime to two of his criminal comrades. At the time of his arrest, he denied that he had ever been in the city of Brooklyn; and that denial was, upon the trial, shown to be false.

On the part of the defense evidence was given tending to throw some doubt upon the identification of the defendant by the three witnesses called upon the part of the people to show his presence near Mr. Weeks' house on the night of the homicide. The defendant produced as a witness Charles Miller, who was jointly indicted with him for the same murder, and he gave evidence tending to show that the person who committed the crime was Paul Krause, and that the defendant had no connection with it; and there was some other evidence on the part of the defense, tending in some degree to show that Krause was implicated in the crime. The defendant was sworn as a witness on his own behalf, and positively denied his guilt, and his presence at or near the scene of the crime on the night of the 15th of March.

For the purpose of showing that the defendant did not tell the truth when he denied that he had ever been in the city of Brooklyn, George Mohring was called as a witness on behalf of the people, and testified that the defendant worked for him in the city of Brooklyn 22 days, commencing on the 6th day of January, 1887, and during that time slept in his house; and his evidence was confirmed by that of his wife. The defendant also testified that he worked and lived with Mohring in the city of Brooklyn, as testified to by him. Upon his cross-examination he was questioned as to various crimes with which he was supposed to have been connected; and he admitted that he had been in the state prison. He was then examined as follows in reference to a crime alleged to have been committed at Mr. Mohring's house: ‘Question. After you left Mohring's house, did you and Butch Miller, within a few days afterwards, enter Mohring's house about 1 o'clock in the morning? Answer. No. Q. Were not you and Butch Miller found in Mohring's house about one o'clock in the morning? A. No. Q. And that you ran into the cellar, and out of the house, leaving behind you a knife and your shoes? A. No. Q. And didn't you ask him, two days before you went into the house, whether he had a pistol in his house or not? A. No. Q. Did you ever ask him if he ever had burglars enter his house? A. No. Q. Did you say to him, ‘Would you shoot a burglar if you found him in the house?’ and didn't he reply to you that he had no pistol to shoot anybody with? A. No; I didn't care whether he had pistol in his house or not.' Upon his re-examination on his own behalf, he denied that he ever entered any man's house in the night, with intent to steal. Then, after the defendant had rested his case, Mohring was recalled for the prosecution, and the following took place: ‘ Question. Did you ever see that knife before? Answer. I never seen it until he came to work for me; Greenwall had that when he worked for me.’ Defendant's counsel moved to strike out the last answer as it is collateral, and the prosecuting attorney is contradicting his own witness. ‘ The Prosecuting Attorney. The evidence is admissible in rebuttal; the defendant swore he was not in the house of this witness; and it is offered as to character. The Court. Admitted as to whether the accused broke into this witness' house. Q. When Greenwall worked there, did you see him have that knife? A. Yes. Q. Do you remember his whetting it on a stone, to shave himself? Objected to. Q. Was your house entered at any time after Greenwall left there? A. Yes. Q. At what time in the night? A. One o'clock. Q. How did you know there was anybody in the house at 1 o'clock at night? A. I slept in the front bed-room, and I heard somebody up in the garret; I heard somebody sneak up there without shoes on; then I went in the back room and called my wife, and we went up there together; then, when I came up in the garret, I saw two men up there. Q. Did you see two men in the room? A. Yes. Q. Did you speak to the two men? A. I spoke in German, ‘What are you doing here?’ Then they gave the answer, ‘Nothing.’ Q. Who were the men, if you know. A. I can swear to it that Greenwall was one of them, and the other I did not know. Q. Did they answer you in German or in English? A. They told me in German; then I turned around to come down stairs, and they came after me, and passed me, and threw the lamp out of my hands, and went down three flights of stairs, down through the cellar out. Q. Did you go down the cellar after them? A. I went down the cellar until they went out the cellar. Q. Did you find anything in the cellar? A. I had a shelf there by the door where they broke in, and on the shelf lay these two pair of shoes and this knife. Q. How did these two men enter this house? A. They came through the garden, and went into the cellar. In the cellar there is a partition of boards; they busted one of the boards off, and went in from the cellar up. Q. Was anything the matter with any of the bolts. A. They broke one of the boards out; then they went through the partition; and I had about fifty bottles of sherry wines there, and they moved that. Q. Did you see any clippings to indicate that a knife had been used? A. No. The Court. Tell what else you saw. A. I saw they cut the bolt out, and through that made an entrance. Q. A few days before you discovered Greenwall in your house, did you have any talk with him about burglars' pistols or anything of that kind?' Objection sustained.

It is too clear for reasonable dispute that this evidence was incompetent. It was not offered for the purpose of showing that the defendant was in Brooklyn at the time, and thus contradicting what...