People v. Johnston
| Decision Date | 13 April 1920 |
| Citation | 228 N.Y. 332,127 N.E. 186 |
| Parties | PEOPLE v. JOHNSTON. |
| Court | New York Court of Appeals Court of Appeals |
John J. Johnston was convicted of the crime of forgery in the second degree, and the conviction having been reversed and new trial ordered, solely for errors of law, by the Appellate Division (186 App. Div. 248,174 N. Y. Supp. 366), no error having been found in any question of fact, the People appeal.
Judgment of Appellate Division reversed, and that of trial court affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for the People.
Clark L. Jordan, of New York City, for respondent.
The defendant was convicted of uttering a forged $100 American Express Company check, which had been issued by the company to one Emil Robitzek. The countersignature of Robitzek was a forgery. The check was one of a series of 12, each for the same amount which had been purchased by Robitzek from the express company in June, 1913. None had been countersigned by him, but they were lost or stolen within a day or two after their purchase. The defendant had possession of 10 of these checks. He himself passed 5 of them on October 7, 1916, in five different stores, by making a small purchase of goods, receiving the remainder in cash. His wife passed the other 5 checks the same day in a similar manner.
The defendant testified as a witness in his own behalf. He testified that he was not a professional gambler, but that he played a great deal of poker, and claimed to have won the checks playing cards. During the course of his cross-examination, he was asked if he knew one Leo Stein, and answered in the affirmative. He then testified that he had sent Stein money, at first $75, which he corrected to $50. This was sent in response to a letter received by him, and which he identified when shown to him. He then was asked, ‘For the purposes indicated in this letter?’ to which he replied in the affirmative; the objection of his counsel as to materiality having been overruled. The letter was then offered in evidence. The court stated, ‘I will allow it,’ but then directed that the letter be marked for identification, and that the district attorney might put questions to the witness based upon the letter.
Further questions were asked, and then the court, at the request of the district attorney, read the letter, which was again offered in evidence, and it was then admitted in evidence. Objection was made by the defendant that there was no theory of law under which the letter was admissible, or any single feature of it. The trial court ruled that the letter was admissible, because the defendant stated that he had received it and acted upon it, and it was for the jury to say whether or not the letter indicated a criminal, vicious, or immoral purpose, and that, if it did not, it was not binding upon him (the defendant). The trial court made clear that the letter did not prove that the defendant had forged or passed the checks involved, but that the jury were entitled to know what kind of a man the witness (defendant) was, and while an arrest meant nothing, even criminal and vicious acts which did not result in a conviction may be called to the attention of a witness on the question of his credibility, and that association with criminals with knowledge of their character was a fact that might be brought to the attention of the jury on the question of his credibility as a witness.
The Appellate Division reversed the conviction on the sole ground that there was error of law in the admission of this letter in evidence. That court held that, when a defendant takes the stand in his own behalf, he subjects himself to cross-examination to the same extent as any other witness, and thus may be interrogated with regard to any criminal or vicious act of his life, and that the extent of such cross-examination is within the sound discretion of the trial court, yet such examination should tend to show that the witness was not entitled to belief, but that the letter in question was neither relevant nor material; that different inferences might be drawn from it; that to receive the letter in evidence was to receive hearsay, when direct evidence would not have been allowed; and that the trial court, in its charge, had placed an improper construction upon the letter as to the inferences that might have been drawn from it. These errors, the Appellate Division stated, were highly prejudicial.
[1][2][3][4] The people claim that the evidential fact was the act of the defendant-that is, his sending money to the writer of the letter in response to it, and, as the defendant testified, for the purposes indicated in the letter. The purpose for which the money was sent was what determined the quality and nature of the defendant's act, and that the quality of the act could be ascertained only by reference to the letter, in response to which, and for the purposes indicated in it, the defendant conceded he sent the money. To show the quality of this act, the letter was a necessary piece of evidence. People v. Hughes, 137 N. Y. 29, 39,32 N. E. 1105.
Mere letters written by one person to another, without anything more, are of no probative value as to the credibility of the recipient or his acquiescence in the schemes contained therein. When, however, the recipient acts in compliance with the scheme outlined in the letter, and admits that his action was in furtherance of the purpose of the writer, by his own acts and admission he has adopted the scheme and purpose of the letter writer as his own, and his credibility as a witness may depend on the quality of the act accomplished, or sought to be accomplished, through his aid and with his acquiescence. Such a letter then becomes material and is of great importance. Had the accused denied sending the money or taking any action in response to the letter of Leo Stein, the letter would have been clearly inadmissible. The prosecution would have been bound by the defendant's answer.
When, however, the defendant, without objection, admits that he acted on the letter, there the purpose of his act becomes material. In response to the inquiry, Did he forward the money for the purposes indicated in this letter? the defendant answered, ‘Yes.’ By his answer he adopted the letter as expressing his purpose for sending the money. Defendant could have explained his purpose, or the purposes set forth in the letter, so as to claim his act to have been perfectly proper and such as should not affect his credibility. He did not attempt any explanation, although his opportunity was ample. Having, by his testimony, adopted the letter as to its purposes, it became an admission made by the defendant, just as though he had himself written his purposes and signed it. It was the duty of the jury to spell out the purpose as set forth in the letter, and to decide as to how that purpose affected the credibility of the defendant as a witness. This was clearly set forth by the trial court. The decision of the jury, unless clearly against the evidence, must be conclusive as to facts.
We refer briefly to the contents of the letter to gather the purpose of the defendant. The writer tells the defendant, whom he addresses on terms of intimacy, that he is in jail; his trial set for January 15th; he is ‘flat broke,’ and, if he could ‘beat his case,’ it would ‘clean’ the defendant also. He then states:
The letter then proceeds to say that he had been told that with his ‘priors' he would receive life, if he was found guilty by a jury, and had been told that, if he stood trial, he ought to expect the limit, after ungratefully running away, but that, if he would plead guilty, the ‘priors' would be withdrawn, and he would receive 10 years. The letter then goes on:
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