People v. Martino

Rhodes, J.

(dissenting). It seems to me the record justifies the conviction, and the cross-examination of the defendant, which tended to show that he had previously been guilty of theft, was not erroneous. When the defendant took the stand he was subject to cross-examination to the same extent as any other witness, subject to his right to refuse to answer on the ground that his answers would tend to incriminate him, and it was competent to examine him as to specific acts for the purpose of affecting his credibility as a witness. (People v. Johnston, 228 N. Y. 332.)

The defendant may thus be questioned as to any criminal, vicious or disgraceful acts in his life for the purpose of impeaching his credibility. It is true that, except for impeachment purposes, the prosecution is not permitted to show that defendant has been *412guilty of other crimes. (People v. Grutz, 212 N. Y. 72; People v. Molineux, 168 id. 264; People v. Dolan, 186 id. 4; People v. Katz, 209 id. 311.)

The alleged prejudicial conduct of the district attorney in cross-examining the defendant as to whether he had made certain statements to his attorney, which statements were apparently contained in an affidavit, is not of itself of sufficient importance to justify reversal. The court refused to permit the district attorney to read from the affidavits, but stated to the district attorney that he might ask the defendant if he had not stated certain specific things to his attorney.

The jury was justified in regarding the story told by the defendant as fanciful; the defendant was shown to be in possession of the stolen property shortly after the theft.

I, therefore, dissent.

CrapseR, J., concurs.

Judgment of conviction reversed on the law and facts, and new trial ordered.