People v. Finnegan

By the Court,

Parker, J.

What Terhune told Parsons on the night of the robbery, could not have been received in evidence, on the ground that it was a part of the res gesta. It occurred subsequent to the robbery, though very soon after it. It was clearly no part of the transaction itself, nor was it necessary to the proper understanding of any part of what was done.

But it was probably received in evidence for the purpose of corroborating the testimony of Terhune, who had previously been examined as a witness for the prosecution, by showing that he made the same statements out of court and immediately after the occurrence which he had made as a witness in court. There is certainly some authority for receiving evidence of that character. (People v. Vane, 12 Wend. R. 78, and eases there cited.) But this question and all the authorities bearing upon it have been fully examined in Robb v. Hackley (23 Wend. 50), where it is decided, in a very learned opinion delivered by Bronson, J., that such evidence is not admissible. This lasl cited case was approved and followed in Dudley v. Bolles (24 Wend. 465, 472), and the law on this point must now be regarded as well settled by these later decisions. A careful reading of the case of The People v. Vane shows that the question did not necessarily arise in that case, and the dictum of the court on this point must now be regarded as overruled. In England, as well as in this country, it is believed such evidence is no longer admissible. (The King v. Parker, 3 Doug. 242; Bull. N. P. 294; 1 Starkie Ev. 148; 1 Phil. Ev. 107, 307, note; 1 Starkie Ev. 149, note; 1 Cow. and Hill’s notes, 776.) The exceptions to the rule, as now established in this state, are when the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, in which case it is said it may be shown that he made similar declarations at a time when the imputed motive did not exist: and where there is evidence in contradiction, tending to show that the account of the transaction-given by the witness is a fabrication of a late date, it is said it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Rolb v. Hackley, 23 Wend. 50.) But neither of these exceptions are applicable to the case under consideration. The evidence in this case was received only for the purpose of answering the doubts attempted to be thrown by the cross-examination upon the testimony of Terhune. But it was not admissible for that purpose. It stood upon the same footing as if it had been offered to support the witness after other witnesses had been called to contradict him. What Terhune had previously said was mere hearsay, and could add nothing to the weight of his testimony. The court below erred therefore in receiving the evidence.

The next alleged ground of error is, that the court permitted the counsel for the people to urge before the jury, that they might infer, from the prisoner’s omission to prove a good character, that his character was bad. This was permitted by the court for ‘■he reason that the counsel for the prisoner, in opening the defence, had stated that he had known the prisoner from his youth, and knew him to be a man of fair character It is supposed that the refusal of the court to restrain the counsel for the people in his argument, within what was suggested by the defendant’s counsel as the true limit, will bring this case within the decision in The People v. White (24 Wend. 520). In that case the, judge in his charge, after alluding to the benefit of good character to the accused in a doubtful case, called the attention of the jury to the absence of such proof in the case before them, and it was held erroneous and ground for a new trial. But although it may be error so to charge, it is not for the counsel so to argue, or for the court to permit such argument. The limits within which counsel are to be restrained is a matter of discretion, and an exercise of that discretion can not be reached and corrected by an exception. The prisoner’s counsel should have submitted to the court a request to charge in regard to the presumption claimed to arise from the omission .to prove good character, and to such charge, or to the refusal to charge, an exception could have been taken. An exception is available for the purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits. All these matters properly belong to the record as presented by a bill of exceptions. But all that relates to the manner of conducting the trial, to the forms of the questions asked, if not objectionable in substance, to the restricted or wide range allowed to counsel in their arguments, are matters of discretion in the court bbfore which the trial is had, and as to them, a remedy for a supposed error can not be had by an exception. The second exception is not therefore available.

The third point made by the defence is, that the court erred in charging that tne jury were the judges of the law and the fact, and that the only duty of' the court was advisory. This was erroneous. It is only on the trial of indictments for libel, that “ the jury have the right to determine the law and the fact” (Const. of New York, Art. 1, Sec. 8). In all other criminal prosecutions, as well as in all civil actions, it is the duty of the court to decide the questions of law and of the jury to decide the questions of fact. (Carpenter v. The People, 8 Barb. S. C. R. 603; Cow. & Hill's Notes to Phil. Ev. 1501; Barb. Cr. L. 2d ed. 353; 2 Sumner R. 240, 243 ; 2 Blackf. 156, Addis. R. 156.) In 2 Sumner, 240, Story, J., said, it had been the opinion of his whole professional life, that the jury are no more judges of the law, in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. He said that, in each case, they had the physical power, but not the moral right, to decide the law according to their own notions or pleasure. That it is the duty of the court to instruct them as to the law, and of the jury to follow such instruction. That if the jury were to decide, it would render the law uncertain: it would be almost impracticable to learn what they did decide; the court would have no right to review their decisions, and every person has a right to be tried according to the fixed laws of the land. .

A wrong impression on this point has prevailed to some extent in the community, and it is time it was corrected. The doctrine that the jury are to decide the law in criminal cases, with the single exception made by our state constitution, can not be supported either upon principle or by authority.

The proceedings in the court below must be reversed, and a new trial awarded in the Albany mayor’s court.