The statute gave to the defendant the opportunity of being a witness in his own behalf, and he availed himself of the provisions of the statute.
In People v. Tice (131 N. Y. 656) Andrews, J., said: “ The accused is not compelled-to become a witness. When he avails himself of the privilege conferred by the statute, he. subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue, which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time of the constitutional exemption. If he accepts the privilege given by the statute, he takes it with its attendant dangers. ' His own act is the primary cause; and, if that is voluntary, he has no reason to complain.’ (Church, Ch. J. Connors v. People, 50 N. Y. 240.) The principle that an accused person, who becomes a witness in his own • behalf, thereby places himself in the attitude of any other witness in respect to the right of cross-examination, has been announced in many cases in this court. (Brandon v. People, 42 N. Y. 265; Connors v. People, supra; Stover v. People, 56 N. Y. 315; People v. Casey, 72 id. 394.) * * * This being the construction put by our courts upon the statute, there is no' constitutional right infringed if the accused, having elected to take the stand as a witness, is subjected to the ordinary rules of examination. The range and extent of the cross-examination is within the discretion of the trial judge, provided only that it relates to relevant matters or to matters affecting credibility.”
The same principle was referred to and stated in Nolan v. B. C. & N. R. R. Co. (87 N. Y. 68); and, in disposing of the ruling. *324compelling a witness to state that he had been expelled from the fire department, the opinion states: “ The question was improper because ■ the fact sought to be proved was neither pertinent to the issue, nor did it relate to any specific fact which tended to discredit the witness or impeach his moral character.”
That case was referred to with approval in People v. Irving (95 N. Y. 544), and the same judge who prepared the opinion in the former case stated in the latter case: “ There the witness was asked not what he had done, but what the fire department had done; whether it had expelled him. * * * An expulsion from the fire department might be' summary or arbitrary and with little or no chance of a fair ■ trial, or for causes involving no crime and not affecting the moral character.”
In People v. Oyer & Terminer (83 N. Y. 438) it was held that “ the range and extent of a cross-examination is, as a general rule, within the discretion of the court, subject to the limitation that it must relate to matters pertinent to the issue or which tend to discredit the witness or impeach his moral character.”
It is difficult, upon an inspection of the record (p. 396), to discover how the fact that the 'defendant was once a member of the Baptist church was relevant to the issue,, or tended to affect his credibility. ¡Nor do we see how the fact that he was not, at the time he was cross-examined, á member of the church, was pertinent to the issue or tended to impair his credibility. He may have resigned or voluntarily severed his connection with the church.
■The prosecution propounded to the witness a question which assumed.that the church “had withdrawn from you (him) the hand of Christian fellowship,” and required the witness to answer what communication he had made bearing upon the subject of his intention to “ still continue to work in the cause of Christ.” That question was objected to as incompetent and immaterial, and upon the further ground that “ any statement he made in a letter can only be proved by the letter.” ¡Notwithstanding those objections, . the court allowed the evidence against the defendant’s exception. The question propounded in behalf of the People, and the answers which the witness was' compelled to deliver, brought out the fact that the Baptist church “ had withdrawn ” from the defendant “ the hand of Christian fellowship.”
*325The defendant, therefore, in cross-examination, was compelled to prove the action of another body, adverse, apparently, to his standing in the church, and, as is said in respect to evidence compelling a witness to state that he had been • expelled from the fire department, it was the act of another body, and not the act of the defendant or the witness. Under well-settled rules that charges or accusations or even indictments or arrests, may not be inquired into, “ since they are consistent with innocence, and may exist without moral delinquency,” it seems the exceptions taken by the defendant present error. (People v. Irving, supra; Greaton v. Smith, 1 Daly, 380 ; Von Bokkelen v. Berdell, 130 N. Y. 141; Lindsley v. Miller, 3 App. Div. 128.) And it is pertinently suggested in the opinion of Ward, J., that such error worked harm to the defendant. And, notwithstanding the rule of section 542 of the Code of Criminal Procedure, to the effect that “ exceptions which do not affect the substantial rights of the parties ” shall not affect the judgment to be given by an appellate court, the conviction, which may have been seriously influenced by such improper evidence, should not be allowed to stand. (People v. Doyle, 11 App. Div. 448; People v. Chacon, 102 N. Y. 669; People v. Dimick, 107 id. 13.)
The foregoing views lead to the same result stated in the elaborate opinion of Waed, J., in. which I concur.
Judgment of conviction and orders reversed and a new trial directed, and proceedings remitted pursuant to section 547 of the Code of Criminal Procedure.
*326CASES DETERMINED IN THE FIRST DEPARTMENT IN THE APPELLATE DIVISION, August, 1897.