The defendant was indicted for the crime of murder, second degree, for causing the death of Valentine Czehowski in the city of Buffalo, June 12,1922. He has been found guilty by a jury of the crime charged.
There was a “ christening party ” that night at the home of a family by the name of Nowakowski who lived in the neighborhood where defendant and his family resided. Some of the young people in the neighborhood attended but defendant was not invited and' did not attend. When the party broke up about midnight, June eleventh, a young lady to whom the defendant had been attentive, accompanied by a Nowakowsld girl, started for her home a short distance away which was near the home of the defendant. The latter and his brother met these young ladies on the street. He spoke to them in abusive and threatening language and the young ladies retired toward the Nowakowski home where they were joined by Mrs. Nowakowski. Czehowski (sometimes called “ Dixie ” ) came along. Whether he took up the cause of the insulted young women does not appear, but he went to where defendant and his brother were standing and an altercation followed. There is evidence that either Dixie or defendant or both had clubs in their hands. No one seems to have been injured, but defendant and his brother turned and ran a short distance to their home with Dixie and perhaps one other following.
It is conceded that defendant there shot Dixie with a shotgun and that he died shortly thereafter. It is contended on the part of the prosecution that this shooting was unjustified. The defendant claims he shot because Dixie and an alleged companion were assaulting his mother who had gone to the door and into the yard when the intruders appeared and because he had fears for his own safety as Dixie advanced upon him, and shot in self-defense. There is evidence on the part of the prosecution that defendant's *451mother was not in the yard or being assaulted at the time and that the wound received by the deceased was inflicted at a greater distance from the muzzle of the gun than defendant claims. It is argued from this fact that the defendant was not apprehensive of danger and fired not in self-defense but wantonly.
There was presented under the evidence a fair question of fact for the jury to decide. Where there is conflicting evidence and the jury must determine which of two sets of witnesses they will believe and they have reached a conclusion, their verdict will not be set aside unless the evidence is such as to indicate some misunderstanding by them of the questions involved or of the importance or bearing of particular facts. (People v. Ferrara, 199 N. Y. 414.)
There were, as there always must be in such cases, some errors committed on the trial. Such errors, unless harmful and affecting a substantial right, may not furnish ground for a new trial. (Code Crim. Proc. § 542.) Defendant’s counsel complains regarding the cross-examination permitted of defendant and his witnesses on collateral matters and in other respects. We think the court was within the limits confided to his discretion and administrative duties in conducting the trial. We are of the opinion, too, that in the main the charge fairly presented the issues to the jury and the rules of law applicable thereto.
Counsel for defendant argues that reversible error was committed when the assistant district attorney called the probation officer, Mahoney, to contradict defendant on a collateral matter developed on cross-examination of the latter. Defendant had a criminal record. One crime for which he was convicted in June, 1920, was for violation of section 1897 of the Penal Law for having possession of a revolver. On nross-examination counsel asked him if that trouble happened while he was in a crap game and if he did not go across the street and fire the revolver into a crowd of fellows. This defendant denied, but admitted that after denying that he had a revolver to the policeman who came to the house, he went to the court, pleaded guilty, and delivered up the revolver. On rebuttal the probation officer was sworn to explain the facts relative to firing the revolver and the admissions of' the defendant concerning the incident. The objection made on the part of the defendant did not clearly call to the attention of the court the reason why such evidence was incompetent. That fact might be disregarded here were the evidence harmful.
The evidence sought was clearly incompetent. A party who takes the stand in his own defense must submit to examination as to any vicious or criminal act of his life. (People v. Webster, 139 *452N. Y. 73.) For the purpose of impeaching him or attacking his credibility, he may be examined as to matters collateral to the issue, but, except as to prior convictions, counsel is bound by his answers on these collateral issues and his evidence thereon is conclusive and cannot be contradicted. This rule applies both in civil and criminal cases. (Furst v. Second Ave. R. R. Co., 72 N. Y. 542; People v. Van Tassel, 26 App. Div. 445; affd., 156 N. Y. 561; People v. DeGarmo, 179 id. 130; Marx v. People, 63 Barb. 618.)
The admission of this evidence was, therefore, technically, at least, error. We do not regard it harmful for this reason: The story told by the probation officer was, under the circumstances, distinctly favorable to defendant. He says his information was, that on the occasion from which the conviction arose the defendant was attacked by a crowd of rough fellows near his home; that another boy with him was assaulted and they tried to beat him up; that he ran to his home and got the gun, came back and they chased him again and he fired a shot into the ground and not at anybody.
The witness said further that defendant upon his inquiry told him the gun was at home and at the request of witness delivered it to him; that there was no evidence against him except what was furnished by the defendant; that on the plea of guilty he recommended that defendant be not punished, but put on probation, which was done; that he was a good probationer and was eventually discharged after reporting regularly.
This would seem an explanation favorable to defendant of the crime referred to on his cross-examination where he admitted conviction. We do not regard the error harmful in respect to its affecting a substantial right of defendant and it may, therefore, be disregarded. (Code Crim. Proc. § 542.)
In view of the fact that defendant admitted killing Czehowski and that his claim of self-defense has been passed on adversely by the jury, we think the judgment of conviction should be affirmed.
All concur, except Hubbs, P. J., and Sears, J., who dissent in an opinion by Sears, J.