The defendant has been convicted of murder in the first degree. The indictment was drawn without the care and consideration in its statements that a matter of such importance should receive. However, the motion to dismiss the indictment on the ground that it does not state facts sufficient to constitute the crime of murder in the first degree was properly denied. It in substance charges that the defendant willfully, feloniously and of malice aforethought struck Elizabeth Watson with a knife on March 23, 1915, from the effects of which she died on March 26, 1915.
Elizabeth Watson was the wife of the defendant. The evidence taken on the trial was sufficient to sustain the verdict of the jury and it is unnecessary here to repeat the grewsome and unpleasant detail of facts constituting the testimony as it appears in the record. There would be no reason for writing this opinion and one would not be written except to avoid an apparent approval of improper statements made by the assistant district attorney (not the one appearing in this court) who tried the case. *Page 568
The statute provides that "The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him." (Code Criminal Procedure, § 393.)
The only person who saw the blows struck with the knife that resulted in the death of Mrs. Watson, or heard what was said, and saw what was done by the defendant and his victim immediately before and after the assault, was their son and oldest child, Thomas Watson. He was necessarily the most important witness at the trial. The defendant was not sworn as a witness. Notwithstanding the statute which expressly states that the defendant's neglect to testify does not create any presumption against him, the assistant district attorney in addressing the jurymen called their attention many times to the fact that the testimony of Thomas was uncontradicted. This was not done as a mere assertion of a fact, but in a way to suggest that contrary to the statute a presumption be indulged in against the defendant because he did not testify in contradiction of the testimony of his son. We quote two statements from the address as follows:
"I call your attention to the fact that Thomas Watson's testimony has been absolutely uncontradicted. Now you know that. You saw that, and you must be aware of the fact that if there was anything about what Thomas Watson stated that was not true there was a way to contradict his testimony. Now how can you, therefore, conscientiously perform your duties as jurymen right here, and when you go into the jury room and say to yourselves: `We don't believe this or that of Thomas Watson's testimony.'"
"Every single part of the testimony in this case falling from the lips of the son prove that (premeditation) unquestionably, and if it were not true, and you gentlemen of the jury cannot sit there and tell me it would not have been contradicted."
So far as it was possible to explain or contradict evidence *Page 569 other than by the defendant's taking the stand the argument was proper (People v. Leonardo, 199 N.Y. 432, 446), but, so far as it necessarily called upon the jurymen to disregard and disobey the statute, it was improper. (Code of Criminal Procedure, § 393; Ruloff v. People, 45 N.Y. 213; People v.Rose, 52 Hun, 33; People v. Ryan, 120 App. Div. 275;People v. Friedman, 149 App. Div. 873, 878.) We are compelled to assume that the statements made to the jurymen in this case were intended to be in disregard and defiance of the spirit and letter of the statute.
In such address he also said: "Now there is no sense in burdening the state with this man if he is guilty of murder in the first degree. If you are satisfied that he is guilty of murder in the first degree there is no sense in doing that."
We cannot understand how a prosecuting officer, with any true conception of the high duties of his office, could thus appeal to the jurymen to take into account the expense of maintaining a person in a penal institution as a consideration which should weigh with them in determining whether their verdict should be murder in the first degree, which would result in the defendant's death, or of some lesser degree of crime which would result in penal servitude.
The trial judge left the case to the jury and in doing so stated the law applicable thereto fairly and clearly, and among other things he said: "The defendant has not taken the stand here and under our law you are not to indulge in any inference unfavorable to him from that circumstance." No exception was taken to the remarks of the prosecuting officer quoted, but this court has the power to order a new trial in a capital case when justice requires it, even when no exception has been taken. (People v. Schermerhorn, 203 N.Y. 57, 72; People v.Pindar, 210 N.Y. 191, 197.)
Statements such as those quoted although improper *Page 570 can be disregarded by this court when the guilt of the defendant is reasonably certain. The possibility of the defendant's substantial rights having been affected is materially lessened when the trial court expressly directs the jury to disregard such statements. (People v. Priori, 164 N.Y. 459.)
Counsel for the People in the trial of criminal cases should avoid allowing their zeal to overcome their better judgment and their sense of duty and right. In a case where the guilt of the defendant is doubtful, improper and unjustifiable suggestions tending to a violation of statutory or other rights of the defendant would require this court to order a new trial. Other alleged errors have been called to our attention by the defendant's counsel, but after a careful study of the record we do not think the defendant's substantial rights have been affected. (Code of Criminal Procedure, § 542.)
The judgment of conviction should be affirmed.