On the trial of this case in the court of general sessions, the prisoner was put on the stand and examined as a witness in his own behalf, under the provisions of the act of May 7, 1869, (Laws of 1869, ch. 678,) which provides that a party accused of crime shall, at his own request, and not otherwise, be deemed a competent witness in his own behalf. He was examined at length by the counsel for the prisoner, and by the district attorney. On the cross-examination he was asked if he had been in-the State prison. He said he had, and served out his term. On this proof, the district attorney asked the court to charge the jury “ to disregard his testimony, on the ground that having served as a felon, being civilly dead, in law, he was not competent as a witness.” The court instructed the jury to wholly disregard the testimony of the prisoner.
We think this was an error. The law intended to allow a prisoner the benefit and privilege of stating to the jury any matter which was calculated to explain the charge against him. This privilege was to be enjoyed irrespective of any matter which could disqualify a witness under ordinary circumstances. The degree of credit to which he was entitled was to be decided by the jury, and not the court. And yet the court refused him the *634privilege given to him by the .law, because he was not worthy of belief.
[First Department, General Term, at New York, November 4, 1872.This question has been examined and decided in the third district, in Delamater v. The People, (5 Lans. 332.) The court, in that ca.se, say: “ The person charged with any criminal offence, no matter how infamous, should be permitted to testify in his own behalf.”
It was also an error in the court, if the testimony could have been excluded, to admit the testimony and then direct the jury to disregard it. • However guilty the prisoner may be, he is entitled to all that the law gives him, on his trial; and when the provisions and rules of law are violated, it is the duty of the court to direct a new trial. Judgment reversed, and new trial ordered.
Ingraham, Leonard and Giltert, Justices.]