I am unable to concur in the prevailing opinion that the judgment of conviction should be reversed, and it is, therefore, proper that I should state the reasons for my conclusion. *Page 329
Shortly before noon on the 28th of May, 1925, William H. Soper, the husband of the defendant, was killed by two shots fired at close range from a .32 calibre revolver. The defendant was indicted, tried and convicted as the person who fired such shots. A careful consideration of the record on appeal convinced me that the defendant not only had a fair trial but that the jury could not honestly have rendered any verdict other than guilty, and that no errors were committed which would justify a reversal of the judgment of conviction.
Two grounds, and two grounds only, are urged by defendant's counsel as calling for a reversal. The first is that the verdict is against the weight of evidence. In my opinion, the verdict is not against the weight of evidence but, on the contrary, is overwhelmingly sustained by it. The testimony of the defendant as to what took place immediately preceding and at the time of the shooting is so incredible and improbable that it is difficult to even imagine how twelve honest jurors could have reached any other conclusion than they did. In any view, at the close of the evidence, a case was made for the jury which had to be submitted to it. It was for the jury to weigh the evidence and to pass upon the credibility of the different witnesses. The jurors saw the witnesses, they heard them testify, and observed their demeanor upon the witness stand, and, therefore, were better able than an appellate judge to determine what testimony was true or false. (People v. Sliney, 137 N.Y. 570; People v. Ferraro,161 N.Y. 365; People v. Ford, 200 N.Y. 209.) I do not understand that there is any disagreement among the judges of this court that at the conclusion of the evidence there was a question of fact as to whether the defendant was guilty of the crime charged, which fact had to be submitted to and determined by the jury. The jury found the defendant guilty and the evidence sustains that finding.
But it is said, and this is the second point urged by *Page 330 appellant's counsel for reversal, that an error was committed at the trial in the admission of evidence, which calls for such reversal. In order to intelligently consider and pass upon the alleged error it is necessary to briefly state a few facts connected therewith.
The defendant and the deceased were married on the 12th of January, 1923, each having been married twice before. At the time the defendant was married to Mr. Soper she was about fifty years of age and he was some ten years her senior. There was no issue of this marriage but the deceased had two sons by his second marriage, both of whom survived him. On the 5th of May, 1923, a little less than five months after the marriage of the deceased and the defendant, he made a will by which he gave her all of his property. The will was executed in her presence, and the subscribing witnesses were her daughter and her daughter's husband. The defendant knew the contents of the will and had possession of it at the time of the homicide, and between that time and the time she was arrested she delivered the same to the son in-law for safekeeping. On January 19, 1924, a little over seven months after the first will was made, the deceased made a second will by which he bequeathed all his property to the two sons above referred to, except $100 which he gave to the defendant. The district attorney, for the purpose of establishing a motive on the part of the defendant for taking the life of her husband, introduced in evidence the first will. From this he could legitimately argue to the jury that she, knowing the contents of that will and possibly apprehensive that the deceased might make a different disposition of his property, decided to take his life before he could make such change. The district attorney, however, could not resort to such an argument knowing that another will had subsequently been made by which the defendant was deprived of the substantial part of her husband's property. The ethics of the legal profession required that *Page 331 he should disclose the fact to the court and the jury. The fairness of the trial and the proper administration of justice necessitated such disclosure. He, therefore, offered the second will in evidence. This was objected to, the objection was overruled, and the will was received. It is true that, so far as appears, the contents of the second will or the fact that it had been made were unknown to the defendant at the time of the homicide. It, however, was received, according to the charge to the jury, for the sole purpose of proving the testamentary intent on the part of the deceased at the time the second will was executed.
I am of the opinion that the second will was properly received in evidence for the following reasons:
(a) It was the duty of the district attorney to disclose to the trial court and to the jury the fact that such will had been made. This he could not do without offering it in evidence. Not to introduce the second will in evidence would have constituted error on the part of the People. (People v. Creasy, 236 N.Y. 205. )
(b) It was admissible in evidence as showing a change of feeling on the part of the deceased as to the testamentary disposition of his property. By the first will he had given the defendant all of his property; by the second will she was deprived, except in a small amount, of all interest in his estate. The second will indicated a change of feeling on the part of the deceased and from all the facts the jury was justified in drawing the inference that, prior to the homicide, the defendant had discovered such change. As I understand it, the rule in this State, established by many decisions, is that any evidence is admissible if illustrating the mutual relations and relative feelings of husband and wife where one is on trial for the murder of the other. (People v. Harris, 136 N.Y. 423, 452;Greenfield v. People, 85 N.Y. 75.) The extent of the inquiry into such relation and feeling rests quite largely in the discretion of the trial court. (Commonwealth *Page 332 v. Howard, 205 Mass. 128, 148.) The fact that acquaintances who casually saw them together at different times testified that their feeling toward each other was apparently friendly does not and cannot outweigh the fact that the deceased did have a change of feeling with reference to the testamentary disposition of his property. Differences between husband and wife are not usually aired in public, except in courts. Such differences are generally discussed in private.
(c) I think the second will was admissible for another reason. While it is true that the record does not disclose that the defendant knew anything about the second will, nevertheless, for the reasons already given, the jury had a right to find that the execution of the second will was the result of a change of feeling on the part of the husband toward his wife. From that change of feeling, the jury could legitimately infer that the wife had discovered that fact and, having ascertained that it existed and apprehensive that he might by reason thereof change the first will and thereby deprive her of any interest in his estate, she sought to prevent his making such change by taking his life.
But even if it be assumed that a technical error was committed in the admission of the second will in evidence, I cannot believe that the jury in any way predicated its verdict upon that, especially in view of all the evidence and the limited consideration by the jury of the second will under the charge of the court. The jury was instructed that the defendant had no knowledge of the second will; that it was admitted in evidence for one purpose, and one purpose only — to show the testamentary intention of the deceased. If it was error, it was an immaterial one. It is not every error committed in the trial of a criminal case that will warrant an appellate court on review in reversing a judgment of conviction. The statute prohibits such result. It provides: "After hearing the appeal, the court must given judgment, *Page 333 without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." (Code Crim. Pro. sec. 542.) The reception of the second will in evidence did not, in my opinion, affect the substantial rights of the defendant.
I, therefore, vote to affirm the judgment of conviction.
HISCOCK, Ch. J., CARDOZO and CRANE, JJ., concur with LEHMAN, J.; McLAUGHLIN, J., dissents in opinion in which POUND, J., concurs; ANDREWS, J., absent.
Judgment reversed, etc.