No one, we think, can read tlijs record without reaching the conclusion that .the defendant was guilty of the offense charged in the *13indictment, and the jury would have been justified in convicting him of murder in the first degree. They did, however, as was their right, give the defendant the benefit of whatever doubt was raised by the testimony and found the defendant guilty of murder in the second degree. While the evidence is in a large measure derived from polluted sources, yet it is to be borne in mind that the only witnesses who could give testimony concerning it were those persons with whom the defendant consorted and cohabited; and immunity should not be given to the commission of crime simply because witnesses to guilt are themselves of bad character or criminals. If such rule should obtain many crimes of a heinous character would go unpunished. Confessedly, the defendant is of the same character, if not worse, than the worst of the witnesses against him, and he is not to be heard in complaint that his guilt may not be established by the evidence of those persons with whom he habitually associated. The law has placed about the consideration of such testimony sufficient safeguards to save every legal right of which this defendant was possessed. There are some known facts and circumstances which concededly exist and to which the defendant bore relation. The oral testimony of the witnesses fits into the known facts and circumstances in such manner and form as satisfies the mind beyond a reasonable doubt that truth proceeded from the mouths of these witnesses, even though moral degradation was their normal state. We have, therefore, presented a case where no member of this court has a reasonable doubt of the guilt of this, defendant of the crime of which he has been convicted. He should not now be permitted to escape just punishment therefor if within any principle of law the conviction may be sustained.
It must be conceded that the statement which was read in evidence made by Bauman to Police Captain Diamond, and by him read to the defendant, constituted error within the decision of People v. Kennedy (164 N. Y. 449). As the question of identity of the defendant was one of the principal features of the case, this testimony was important, as it bore directly upon such issue. The only point, therefore, which the case presents is whether this testimony may be disregarded without prejudice to any substantial right possessed by the defendant.
By the provisions of section 542 of the Code of Criminal Pro*14cedure the court is authorized upon appeal to “ give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” jn speaking of this section the court, in reviewing a conviction of murder in the. first degree, said: “The spirit of this legislation, as is its letter, is that if the accused has had a fair trial upon his accusation, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, that conviction shall stand. We are not justified by those provisions of the Code (§§ 528, 542) any more than by a true sense of justice in reversing a conviction, if the rights of the accused have not been violated and the verdict against him was not reached by error, or by ways of passion or prejudice.” (People v. Hoch, 150 N. Y. 291.) In People v. Wayman (128 N. Y. 585) testimony was permitted by an accomplice of the defendant, of the contents of a letter written by the defendant, but not produced." While not material as tending to support the commission of the crime, it was material as affording support to the accomplice’s testimony as to his meeting the defendant at a particular time. Consequently it was material testimony and the point was presented by exception. The court, however, held that, in view of the strength of the case against-the defendant, furnished by other testimony, the error would be disregarded within the rule announced by the Code, In the present case it can be safely said that the jury would have reached a like result if this statement had been entirely stricken from consideration by them. Defendant had in all other respects a perfectly fair trial and his rights were not in the slightest degree invaded. The crime proved was most heinous in character, and failure to punish it would constitute a gross miscarriage of justice. Under such circumstances, in view of the provisions of the Code of Criminal Procedure, we think that this error may not be said to have seriously affected any substantial right of the defend‘ant, and that, therefore, it should be disregarded. If this view obtain, it follows that the judgment of conviction, should be affirmed.
O’Bbien, J., concurred.
Judgment reversed, new trial ordered. .