People v. Slover

• Decision Date: 16 December 1921
• Citation: 232 N.Y. 264,133 N.E. 633
• Parties: PEOPLE v. SLOVER.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 264

133 N.E. 633

PEOPLE

v.SLOVER.

Court of Appeals of New York.

Dec. 16, 1921.

Floyd E. Slover, alias Frank Barnes, was convicted of murder in the first degree, and appeals.

Affirmed.Appeal from Supreme Court, Trial Term, Erie County.

W. J. Evans and Samuel J. Dickey, both of Buffalo, and George B. Russell, or Canastota, for appellant.

Guy B. Moore, Dist. Atty., and Walter F. Hofheins, both of Buffalo, for respondent.

PER CURIAM.

The record on this appeal is largely the same as in People v. Mulford, 232 N. Y. 530, 134 N. E. 558, where a conviction of murder in the first degree was affirmed. Mulford was convicted as an aider and abettor of this defendant, who is charged with the actual shooting that unquestionably caused death.

[1][2][3] The facts show beyond reasonable doubt that defendant was guilty of murder in the first degree. From his own statement it appears that he went, armed with a revolver and accompanied by Mulford and Webber, his alleged accomplices, into the store of one Yellen, on Seneca street, in Buffalo, to steal an overcoat, and while engaged in the commission of that crime he shot and killed Yellen. He fired two shots into Yellen's body, and a third shot which struck Yellen's finger. His theory of defense on the trial was that Yellen, prematurely frightened by the sight of a revolver in defendant's hands when he was trying on the overcoat, sprung on him, and that the shooting was accidental. We would affirm without opinion, if it were not for the contention of the defendant that the district attorney deprived him of a fair trial by making improper appeals to prejudice in his summing up, and by presenting immaterial evidence to create a feeling against him. While freedom of advocacy must not be held too strictly in check, it must not exceed the bounds of ordinary decency and decorum (People v. Fielding, 158 N. Y. 542, 547,53 N. E. 497,46 L. R. A. 641, 70 Am. St. Rep. 495), and it is the duty of this court in death cases to uphold the rights of the accused even in the absence of an exception.

‘When the judgment is of death, the Court of Appeals may order a new trial, if it be satisfied that * * * justice requires a new trial, whether any exception shall have been taken or not in the court below.’ Code Crim. Proc. § 528.

But ‘the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.’ Code Crim. Proc. § 542.

The application of the rule requiring us to disregard errors which do not affect the substantial rights of the defendant to cases where it is inconceivable that on a clear record the verdict of the jury would have been otherwise is no precedent for its application to cases where the evidence presents a close or doubtful question of guilt and where defects or errors may have turned the scale in the minds of the jury to the disadvantage of accused.

We have had before us of late a series of cases where we felt that the district attorney, in examining and cross-examining witnesses and in addressing the jury, went beyond reasonable bounds and sought to bring to the attention of the jury matters which they had no right to consider in arriving at their verdict. We have assumed in each case on its particular facts that the jury were not affected by such matters, but by affirming the judgment of conviction we have not approved the conduct of the district attorney. We have dealt with it as the result of ‘well-intentioned though misguided zeal,’ which probably was unheeded by the jury and had no influence on their final action, while in the case of a vigorous dispute over a defendant's mental capacity we have not hesitated to order a new trial for such excesses on the part of the prosecutor. People v. Esposito, 224 N. Y. 370, 121 N. E. 344. See also People v. Mull, 167 N. Y. 247, 60 N. E. 629;People v. Wolf, 183 N. Y. 464, 472,76 N. E. 592.

Even in cases of clearest guilt, in death cases emphatically, it is the duty of the district attorney to refrain from overzealous advocacy. Unseemly and unsafe appeals to the prejudices of the jurors were made by the district attorney in this case, and if it were not for the convincing probability that the result was not affected, we would enforce the rule against improper examination of witnesses and abusive arguments resorted to only for the purpose of producing a conviction at all hazards. The following instances seem to call for our notice and disapproval as being, when taken as a whole, neither mere inadvertent slips (People v. Becker, 210 N. Y. 274, 292,104 N. E. 396), nor errors fully and fairly corrected by the instructions of the court. People v. Dixon, 231 N. Y. 111, 120, 131 N. E. 752.

[5][6] 1. The district attorney, as a part of his principal case called a witness to testify that deceased was the father of seven children, the youngest being a little girl of 10. This proof was no proper part of the people's case but the same facts were otherwise incidentally and necessarily developed later in the progress of the trial.

[7] 2. Defendant on cross-examination was interrogated, solely for the purpose of discrediting crediting him as a witness, as to many particular criminal acts. His record was not flawless, but for the most part he denied that he had done the things as to which he was interrogated, and no attempt was made to show that he had been convicted of other crimes. Code Civ. Proc. § 832. Within proper bounds, such a cross-examination is not objectionable, but a limit must be placed on the range of such questions. They may not be asked for the improper purpose of planting in the minds of the jury suspicion and distruct by insinuations that the...