The defendant was tried in the Court of General Sessions of the Peace in and for the county of blew York upon an indictment which charged him with the crime of assault in the first and second degrees, a second offense. It was alleged in the indictment that the accused, in the year 1901, had been convicted of a felony, to wit, an attempt to commit the crime of grand larceny in the second degree, and after such conviction was sentenced to imprisonment in the penitentiary; that thereafter and on the 29th day of December, 1904, he feloniously made an assault upon one William O’Brien, whom he shot with intent to kill. Upon the trial of the indictment the defendant was found guilty and judgment was pronounced against him in due form of law. He appeals from that judgment.
There is no question of the first conviction. It was fully proven by record evidence and the identification of the defendant as the person convicted. It appeared in evidence that the defendant was the keeper of a drinking saloon, or so-called concert hall, on the *398Bowery,; in the :city of New York. Early on the morning of December 29, 1904, at about three o’clock, several. persons were assembled in this saloon. They wére drinking and carousing. Among them was oiie William O’Brien. He was talking in a loud voice and was evidently in anger. He referred to the defendant in. insulting terms, called him a “stool pigeon,” and declared that he 'would get even ” with him. When those words were uttered by O’Brien, lie, the defendant, and ■ a woman named Sadie Ennis forméd a group and evidently had been talking together. They were standing in the rear of the defendant’s saloon. O’Brien left them and proceeded toward the front of the premises, going down some steps. When lie reached the foot of the steps- he was shot, the bullet striking him under the region of the heart. There was testimony given by two boys, McGivern and-Brady (wlio saw the occurrence), that the shot was fired from a pistol in the hands of the defendant. Those witnesses .give; a circumstantial and detailed account of that occurrence, and 'from their statements, which áre ' ■not contradicted in any substantial detail, it was established that the shooting, was done by the defendant. Another witness', Donovan, was in the rear of the room wh’en the excited talk was heard,,and lie also saw Smith, the defendant, shoot O’Brien. There can be no possible doubt upon the testimony of the identification of the person “who discharged the pistol. No witnesses were called by the defendant, and the case was left to the. jury upon the evidence introduced by .the People.
The -defendant asks for a reversal of the judgment on several grounds, tire first being that the assistant district attorney in opening the ease tó tile jury referred to a matter entirely irrelevant to the inquiry properly before them and-which it is claimed must have affected, from the -beginning, the minds of the jury adversely to the’ defense. In .his opening address the assistant district attorney . stated that O’Brien .had been a witness on .the trial of an indictment of a drunken policeman'for shooting another person; that the •police officer und; one Brennan were drinking in the defendant’s saloon and after fighting there went to the sidewalk where the officer shot and killed Brennan. It was stated ■ that O’Brien was a witness .of .this occurrence and testified against the policeman, who was convicted: Several times during the trial counsel for the *399prosecution referred to that subject, his claim being that it was competent as evidence of motive on the part of the defendant to commit an assault on O’Brien, who, by the testimony given on the trial of the police officer, exposed the disorderly character of the defendant’s saloon. When the remarks were made by the prosecuting officer, the court, apparently of its own motion, suggested that the assistant district attorney confine himself to what occurred at the time of the shooting of O’Brien, and that if it became necessary to prove motive, it might be done thereafter. The defendant’s counsel moved to'withdraw a juror on the ground that the statements made by the counsel for the People were calculated to prejudice the defendant and it was not possible for him to obtain a fair and impartial trial; that motion was denied, and the defendant’s counsel excepted.
Jt is apparent that in making the remarks which were thus criticised the assistant district attorney believed that it was. competent for the prosecution to prove that Smith had a motive which might-impel ’ him to commit an act of violence upon the person of O’Brien, and we are unable - to see that there was an intention to create a prejudice in the minds of the jurors against the defendant. The remarks were not made heedlessly or impulsively or without regard to the defendant’s - rights. The prosecuting officer claimed at the trial, and it is now argued with considerable force, that the statements .objected to were competent as evidence of motive. Those remarks, we think, do not come within the condemnation of such cases as People v. Wolf (183 N. Y. 464); People v. Smith (162 id. 531); People v. Mull (167 id. 247) and similar cases. We cannot say that’it is misconduct on the part of a prosecuting officer in a criminal case to allude to facts and circumstances which he believes are connected with and germane to a charge contained in an indictment, especially where it is not at all clear that his contention in that regard is erroneous.
It is further claimed by the defendant that prejudicial error was committed by the court in permitting the prosecution on redirect examination to ask certain questions of the witness O’Brien, the person who was shot. That man was called by the People as a witness, and he simply testified that he was shot some time in the month of December, 1904. On cross-examination the witness was *400asked : “ Do you know who shot you ? ” He swore that it was not the,defendant. The court asked him: “.Well, but you haven’t told ■ ús yet who shot you ? ” and the witness replied : “ Well, positively, I.didn’t see no man shoot' me. I wouldn’t accuse the party that shot me. I don’t know .who shot me,” He said that “ positively, - under (his) Oath,” he did not know who«shot Iiini. ' He further testified that he was in 23 Bowery (the defendant’s saloon) on the night in question,, and there had an altercation with the woman Sadie Ennis. He also stated that the stepfather of a man named Brennan asked him who shot him, and that lie stated that he would settle, it • himself when he got out of the. hospital. He was asked on his redirect examination whether he had not stated to one of the officers that it was “Billy Smith ” who shot him, and he answered “Ho.” All this testimony on redirect examination seems to have been objected to on the ground that the prosecution could not contradict its own' witness. It .is evident, that tins witness was reluctant to testify, and was evasive and did not intend to incriminate the defendant. He had not been asked by the prosecution who shot hirn. That question, was put by his own counsel, and on redirect examination the prosecution merely followed Up an inquiry originating w-itli the defense. Hothing was elicited, prejudicial to the . defendant.
It is contended that the trial judge erroneously refused to charge without qualification a request of tli'e defendant’s counsel, as follows: “ I ask your honor to charge, the jury that the failure of the People ■ to call Sadie Ennis may be taken as a circumstance; if she was called, her testimony would be adverse to the People’s theory of the case.”' , Before any reply was mad'e to this by the court, th'e assistant, dis-' t-rict attorney requested the judge to charge that the same proposition' was applicable to the' defendant’s not calling Sadie Ennis. This woman was present in court during the trial. The court said .; “ She was here and could be called by either side. • Why should not that presumption apply to' you as wéll as to the defendant ? The' rule, gentlemen, is that where there is'an eye-witness'to an occurrence, and it is in the power of either side tó call that witness,- and they do not Call the witness, it is a fair inference that her testimony would be against the side failing to call her.”
“ A party’s failufé to call a witness whom he might call does not
*401generally raise a presumption that his testimony would be unfavorable to such party, especially if such witness is equally accessible to both parties, or his testimony would be simply cumulative.” (Chase Steph. Dig. Ev. [2d ed.] 314, citing Scovill v. Baldwin, 27 Conn 316; Bleecker v. Johnston, 69 N. Y. 309 ; State v. Fitzgerald, 68 Vt. 125 ; Coleman v. State, 111 Ind. 563 ; Cross v. Lake Shore, etc., R. Co., 69 Mich. 363; Kerstner v. Vorweg, 130 Mo. 196; Bates v. Morris, 101 Ala. .282.)
We do not think that the defendant was entitled to the instrue-tion in the form in which he presented it. He asked the court to charge that the failure of the People to call this woman Ennis may be taken as a circumstance that if she were called her testimony would be adverse to the People’s theory of the case. The most that he could have been entitled to was an instruction that under such circumstances the jury could take the fact into consideration, not that the woman would positively testify against the People’s whole case. ' .
On the entire case we think it clear that the defendant was.guilty of the crime for which lie was convicted and that his rights were fully protected on the trial and that justice requires that the judgment should be affirmed.
O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.
Judgment affirmed. Order filed.