I concur in the conclusion and the supporting reasoning of Judge CHASE that the refusal of the trial court to charge the request stated in his opinion was not error. I dissent from his conclusion that it was not error to receive the testimony considered in the opinion.
Katherine Nordahl was a witness for the defendant. Her direct examination in effect was: She lived and was employed as housekeeper at the Fulton Hotel (the house involved here) from February 4 to July 29, 1915. When on duty from eight o'clock in the morning until six o'clock in the afternoon, she would show guests to the assigned rooms. The hotel had from twenty-five to twenty-eight permanent guests. The defendant did not state to her, as testified by Katherine Caulfield, as a witness for the People, that he was sorry he had employed Mr. Wittek because he thought that Mr. Wittek and Mr. Keely were too timid to be in charge of the hotel and that couples were asking for rooms and were not being given them. The district attorney sought to impeach her by cross-examination. The part of the cross-examination material here is as follows: "Q. How long have you worked for Mr. Richardson? A. About a year and a half in all. Q. What other hotel or hotels besides the Bijou Hotel did you work in for Richardson? A. Manhattan. Q. When did you work in the Manhattan? A. Before I was married. Q. When was it, what year? A. 1909. Q. And what other year? A. And then again last year, that was all. Q. When you worked in it last year it had another name, didn't it? A. Majestic. * * * Q. How long have you known Richardson? A. From 1908. Q. Did you work in the Majestic Hotel after you left the Fulton Hotel last year or before that time? A. Before then, before I went to the Fulton. * * * Q. Did you know, Madam, when you went to work in the Majestic Hotel — that before the name was changed from the Manhattan *Page 106 to the Majestic Hotel, that that hotel had been abated as a public nuisance because it was a disorderly house, did you?" The defendant objected to this question upon the ground, among others, that it was an attack upon the character of the defendant, that the limits of credibility are in the discretion of the court and that the limits of the examination as to credibility should stop when they conflict in an indirect way with the right of the defendant. The objection was overruled by the court, with the statement that the evidence was only admitted for the purpose of testing the credibility of the witness, to which ruling the defendant excepted. "A. Yes. * * * Q. Did you know that Richardson was convicted of running the Manhattan Hotel as a disorderly house and sentenced to jail before you went to work for him in the Majestic Hotel?" The objection that the defendant had not put his character in evidence and that the question was improper was overruled and an exception taken. "A. Yes. Q. And before you went to work for him in the Fulton Hotel, is that it? A. Yes. Q. Did you know before you went to work at the Fulton Hotel that that very same hotel, not the Manhattan now, but the Fulton Hotel — the same premises under the name Bijou Hotel had also been abated as a public nuisance? A. Yes. Q. Because that was a disorderly house? A. Yes."
The defendant did not during the trial take the witness stand or by any testimony make his character an issue.
It is a rule of law that it is error to receive evidence, upon the trial of an accusation, of an offense other than that charged. (People v. Thompson, 212 N.Y. 249; People v.McLaughlin, 150 N.Y. 365; Miller v. Curtis, 158 Mass. 127.) This rule which excludes evidence of other crimes unless the evidence is relevant to the issues on trial should be strictly enforced. Evidence is relevant to the issues on trial whenever it tends directly to show *Page 107 the defendant guilty of the crime charged in the indictment under which he is being tried. (People v. Thau, 219 N.Y. 39.) The conditions or elements which render it thus relevant are fairly well defined and declared. (People v. Molineux, 168 N.Y. 264;People v. Thau, 219 N.Y. 39; People v. Grutz, 212 N.Y. 72;People v. Thompson, 212 N.Y. 249.) No one of them exists in the case at bar.
It is also a well-established rule that an impeachment or attack of a defendant in a criminal trial by proof of any specific act or practice affecting his character and tending to show that he is not worthy of credit can be only when he has assumed the status and character of a witness in his own behalf. As such witness he may be impeached through the methods applicable to any witness. The impeachment is not for the purpose of showing that he was the kind of person who would be willing to commit the offense charged, but solely for the purpose of diagnosing his conscience and thereby enabling the jury to determine the extent of his veracity and credibility as a witness. Testimony which does not tend legitimately to discredit his evidence is irrelevant and should be excluded. (People v.Hinksman, 192 N.Y. 421.)
It is also an elementary rule that the general character of the defendant in a criminal trial may not be made an issue unless he chooses to make it so by resorting to affirmative proof of good character. (People v. Hinksman, 192 N.Y. 421; People v.Lingley, 207 N.Y. 396; People v. Pekarz, 185 N.Y. 470;People v. Fitzgerald, 156 N.Y. 253.)
The violation of either of these rules by a trial court is cogent ground for the reversal of a judgment based in part upon the violation. (People v. Jones, 191 N.Y. 291.) It is manifest that the testimony at hand was in direct and thorough violation of, at least, the first two of them. The district attorney urges, in justification of its admission, the rule that in an impeaching cross-examination specific acts which tend to discredit or *Page 108 impeach moral character may be educed and to that end the way of life, the associations and the practices of the witness are relevant. His argument is that the testimony of Katherine Nordahl would be seriously disparaged in case it was proven that she entered and remained in the employment of the defendant at the Majestic Hotel and the Fulton Hotel with the knowledge that he had maintained disorderly houses and had been convicted of maintaining a disorderly house; that her association with the defendant, after he had committed and she knew he had committed such acts, evidenced a torpid or dwarfed conscience permitting a disregard of the truth. Under this argument it might have been shown by the witness, had the facts existed, that the defendant maintained and operated in a room of the hotel an outfit for common gambling, and lived there in habitual adultery, or there committed any other crime or flagitious act. Assume another illustration: A person is on trial under an indictment for murder. His chauffeur as a witness in his behalf testifies that at the time of the murder the defendant was at a place other and distant from that of the killing. Through an impeaching cross-examination, the witness is compelled to testify that the accused while his employer and through the years preceding his employment had, as the witness had known when he entered or remained in his service, been convicted or been guilty of embezzlement, highway robbery and burglary and of other criminal or disgraceful acts. Other and various illustrations occur readily to the experienced mind. The rule, which the argument asks us to establish, would apply whenever a partner, clerk or business associate, relative or friend of the accused defendant, who companioned with him, was a witness in his behalf. Each specific immoral, indiscreet, degrading or criminal act of the defendant, known to the witness, could be revealed to the jury upon the *Page 109 ground that association with a man so characterized affected the veracity and credibility of the witness.
The reasons for the established rules, which I have stated, forbid the rule urged upon us by the argument of the district attorney. Those reasons are that the evidence which they bar would have a tendency to withdraw and mislead the attention of the jury from the real issue under inquiry and would subject the accused to charges unconnected with that issue and against which he had no reason to prepare. (People v. Thompson, 212 N.Y. 249. ) In People v. Sharp (107 N.Y. 427, 461) Judge DANFORTH said: "Such evidence is uniformly condemned as tending to draw away the minds of the jurors from the real point on which their verdict is sought and to excite prejudice and mislead them." InCommonwealth v. Jackson (132 Mass. 16) Judge DEVENS said: "Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it; and, by showing the defendant to have been a knave on other occasions creates a prejudice which may cause injustice to be done him." Professor Wigmore, speaking of the evidence prohibited by the first two of the rules, said: "The law here declares a general and absolute rule of exclusion;" and for the three reasons: "(1) The over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts; (2) the tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses; (3) the injustice of attacking one necessarily unprepared to demonstrate that the attacking evidence is fabricated." (1 Wigmore on Evidence, sections 192, 193, 194.)
The reasons are rooted in practical policy, justice and *Page 110 fairness. It is not a part of them that the proof they forbid is not relevant to the real issue, namely, is the defendant guilty or not guilty. Indeed, the exclusion is rather because they have an inescapable and a too potent relevancy. For reasons of policy and humanity rather than of irrelevancy is the evidence excluded. "The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." (1 Wigmore on Evidence, section 194.)
The reasons stated determine the question here. The evidence was inadmissible, not because it did not legitimately tend to prove an immoral and discredited character of the witness, but because illegitimately and beyond obviation it would subject the defendant to the prejudice and the injustice which the reasons declare and condemn. The wrong which would result from its illegitimate weight overbears its relevancy and suppresses its use for impeachment. (See Regina v. Rowton, 10 Cox Crim. Law Cases, 25.) Judicial opinion has not been wholly silent concerning the question under consideration. In Hamilton v.State (34 Ohio St. 82) a judgment of conviction was reversed on the ground that the cross-examination of a witness in behalf of the defendant elicited the fact that the witness jointly with the defendant had been indicted for burglary. This case is cited without comment by Professor Wigmore. (2 Wigmore on Evidence, section 987, note, page 1140.) In People v. White (251 Ill. 67) the defendant was on trial for the murder of Levy in Levy's restaurant. The defendant conducted a saloon. His bartender testified as a witness in his behalf. The state's attorney conducted an impeaching cross-examination tending to prove the connection of the witness *Page 111 with gambling houses and that he was a common gambler. The court held that it was proper to cross-examine the witness as to his occupation and other matters which would enable the jury to determine what weight ought to be given to his testimony, and said with manifest significance: "The court did not permit any question as to what work the witness did in the defendant's saloon or what took place there, and there was no attempt to make any such proof after the question was raised and the ruling made." (See, also, McAlister v. State, 99 Ark. 604; People v. Coston, 187 Mich. 538; Mercer v. State, 66 S.W. Rep. 555.)
I conclude it is a rule of law that an impeaching cross-examination of a witness for a defendant in a criminal trial cannot seek or educe, for the purpose of discrediting the witness, testimony tending to prove that the defendant was of a criminal, degraded or bad character.
I vote that the judgment be reversed and a new trial ordered.