People v. . Zigouras

The facts of this case are so fully and carefully stated in the opinion of Judge LANDON that, for the sake of brevity, they are adopted in this expression of dissent from the views therein relating to certain exceptions taken upon the trial. A summary, however, of *Page 259 the prominent facts is necessary in order to present aptly the questions as to which we are at variance; they are as follows:

On the eighteenth day of February, 1899, the defendant fired four pistol shots into the body of Sarantos Ferantos, killing him. Emil J. De Varney, an eye witness, so testified and the defendant admitted it. No one else saw the shooting, and the witness and the defendant differed mainly as to the circumstances immediately preceding the shooting, and as to whether all the shots were fired before Ferantos fell, or whether the last three were fired into his body after he had fallen. De Varney testified that while he and Ferantos were drinking beer defendant passed through the room into an adjoining bedroom, where the defendant was accustomed to sleep, and, without saying a word, fired therefrom upon Ferantos, who at once fell to the floor, the defendant advancing and firing three other shots in rapid succession while the body was upon the floor. De Varney also said that prior to the shooting there was no appearance of hostility or unfriendliness between the defendant and Ferantos. The result of the autopsy tended to support the testimony of De Varney, for it strongly indicated that some of the four bullets that were found in the body of Ferantos were fired after he had fallen upon the floor. In this connection I quote from the record part of the examination of the defendant by his counsel:

"Q. How many shots did you fire?

"A. I don't know; I couldn't tell; I don't know how many times.

"The INTERPRETER: He says, `If I hadn't done it he would have killed me; he would have taken my head off.'

"When he said to the stranger to stand at the door, and came at me with the iron, then I fired once and then he fell, and I don't know how many times I fired again."

This part of the testimony of the defendant corroborated De Varney in so far as he testified that Ferantos fell after the first shot, and that the other shots were fired into his body after he was down. But the witness immediately corrected this testimony by denying that he fired at Ferantos after he *Page 260 had fallen upon the floor, and insisting that all of the shots were fired at him while he was standing or falling. The claim of the defendant upon the trial was that he shot Ferantos in self-defense. He testified, in effect, that Ferantos demanded money of him, and when he refused to give it that Ferantos said: "Now, you will give me ten dollars or I will take your head," and at once took up an iron poker, and raising it as if to strike, said: "You will give me ten dollars or I will take your head;" that the defendant begged Ferantos not to kill him, retreating at the same time into the bedroom, where he took the pistol from under the pillow and shot Ferantos. The defendant further testified that he believed at the time he fired the shots that his life was in danger, and that he would have been killed had he not shot Ferantos. This version of the matter De Varney flatly contradicted, and it was shown by others that upon the person of Ferantos was found money and jewelry, but no weapon of any kind, while an examination of the room failed to disclose the presence of an iron poker; under the dead man was found a broken beer glass from which De Varney testified Ferantos had been drinking, and there was other evidence that he had but a few minutes before obtained some beer for the purpose of drinking it.

After the testimony had been closed and counsel had submitted their addresses to the jury, the recorder, in a charge rarely surpassed in the accuracy with which are applied the appropriate legal principles to the situation presented by the evidence, submitted the case to the jury with the result of a verdict of murder in the first degree. If we were satisfied that the verdict thus rendered was against the weight of evidence, or against law, or that justice required a new trial, it would be our duty to reverse the judgment of conviction entered on this verdict, whether or not any exceptions had been taken pointing out errors of law. (Code of Criminal Procedure, section 528.) But we are agreed not only that the evidence presents a question for the jury as to whether the defendant was guilty of the crime of murder in the first degree, but also that it so strongly supports the verdict rendered *Page 261 that an occasion is not presented which will permit the exercise of the great power conferred upon this court by the section above referred to, which was intended for the purpose, among others, of enabling the appellate court to assure an accused a fair trial and protect him from a conviction based upon inadequate evidence.

There is another section of the Code of Criminal Procedure that ought not to be lost sight of by the courts in reviewing judgments of conviction, which provides: "After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." (Code of Criminal Procedure, section 542.)

This statute has been frequently invoked in cases where the defendant was convicted of murder in the first degree (People v. Chacon, 102 N.Y. 669; People v. Wayman, 128 N.Y. 585;People v. Fanning, 131 N.Y. 659); and it should be applied in every case where it is apparent that the technical errors of which complaint is made do not affect the substantial rights of the parties, because in criminal cases the People, as well as the defendant, have rights which require that the salutary rule provided for by section 542 should be fairly enforced and administered so as to foster the public policy therein embodied for the purpose of serving the ends of criminal justice. If it be true, therefore, that the two exceptions which are considered in the prevailing opinion point out technical error, and it seems to me very clear that they do not, they should be disregarded if it appears that the substantial rights of the defendant were not affected by the rulings of the court to which they refer.

One of these exceptions was taken to the refusal of the court to charge the following request:

"They may consider, in determining as to whether the defendant had reasonable grounds for believing that he was in imminent danger of death or great personal injury from the deceased, that the deceased, prior to the shooting, had made threats to the defendant that he would kill or injure him." *Page 262

The court stated its reason for refusing this request as follows:

"The fourth request is refused because the basis for making it is not borne out by the evidence."

If the request referred to threats on the part of Ferantos to kill or injure the defendant, made prior to the occasion which resulted in the death of Ferantos at the hands of the defendant, which was the way the court understood it, then the request was properly refused, for the record contains no such evidence. If the threats referred to in the request were those testified to by the defendant as occurring almost immediately preceding the shooting, then the refusal of the court was justified and proper, for the reason that the court had fully and fairly charged the jury upon this subject, as will fully appear from the following extracts from the charge:

"The defendant has taken the witness stand in his own behalf. He has testified, in substance, that the deceased seized a poker and threatened to kill him if he did not give him the sum of ten dollars; I think he used the words `threatened to knock his head off.' That the defendant told him he had no money to give him. That he withdrew into the inner room, and went to a bed there and took from beneath the pillow of the bed the revolver with which the shooting was done, and that he stepped, I think he said, two paces or a few paces from the bed, and shot the deceased before the deceased entered the room where he was; and he states that he fired the shots rapidly; that is, he illustrated to you as if he fired the shots in rapid succession. The number of shots he was not certain of; but he fired shots — he could not tell the number — at the deceased as the deceased was going toward the threshold of the inner room.

"He testified that at the time he fired those shots he believed his life was in danger, and, acting on that belief, he fired the shots at the deceased.

"Now, gentlemen of the jury, that testimony on the part of the defendant raises a defense known in law as self-defense; and upon what constitutes self-defense I will read to you the *Page 263 opinions of our highest court to guide you in your determination as to whether or not this defendant was justified in firing that revolver at the body of the deceased."

The court then read extracts from the opinions in several cases in this court, after which the charge continued as follows:

"If this defendant believed — honestly believed — that he was in imminent danger of death, or of great bodily harm, at that time, and that there were no means of escape with safety except by firing these shots at the deceased's person, then he was justified in so doing and should be acquitted.

"The law of self-defense is founded upon the law of necessity. That is an instinctive rule of action in all human beings — the law of necessity — and that is what the law of self-defense is. These rules formulated by the courts are in conformity with that law, and if this defendant honestly believed at that time that he was in imminent danger of death or of great bodily harm, and that there were no means for him to escape with safety from that danger but by firing those shots, then he was justified in so doing, and he is entitled to a verdict of acquittal."

At the request of the counsel for the defendant the court further charged the jury in relation to this subject as follows:

"It is not necessary for the jury to believe or find that the defendant was actually in danger of death or great personal injury at the time he shot the deceased, but the defendant had the right to act on the appearances as they appeared to him at the time, and if he had reasonable ground for the belief of imminent danger he was justified in shooting the deceased, and should be acquitted."

"If there is a reasonable doubt as to whether the defendant was acting under a reasonable belief that he was in imminent danger of death or great personal injury from the deceased when he shot the deceased, the jury must give the defendant the benefit of the doubt, and acquit him."

"The jury may consider the condition of the defendant and the deceased at the time of the shooting, and if the jury believe *Page 264 that the deceased attacked the defendant with an iron poker, and the defendant had reasonable ground to believe that great personal injury was to be inflicted upon him, and that danger was imminent, he was justified in killing the deceased."

"In determining the question as to whether the defendant had reasonable grounds to believe that he was in imminent danger of death or great personal injury from the deceased, the jury are not to be governed by what their belief would be under similar circumstances, but are to consider what the defendant believed at the time of the shooting, and if the defendant honestly believed that it was necessary to shoot deceased in order to save himself from death or great personal injury, the jury must acquit the defendant."

"The jury may take into consideration the reputation of the deceased for violence, and the defendant was justified at the time of the shooting in taking into consideration the bad character of the deceased. The defendant was justified in taking into consideration the reputation of the deceased for violence; and if his reputation, coupled with that attack made upon the defendant by the deceased with the poker, afforded a reasonable ground of belief to the defendant that he was in imminent danger of death or of great personal injury, the jury must acquit the defendant."

It will be seen, therefore, that if the request which was refused referred to the threats that the defendant testified were made immediately preceding the shooting, and the court did not so understand it and so stated to counsel, the subject-matter of it had already been fully and fairly covered in the charge in chief and the defendant was not entitled to have it again charged, and it necessarily follows that the refusal to charge as requested was not error.

The other exception relied upon for the reversal of the judgment was taken to a ruling of the court refusing to allow a witness, who was called to prove that the general reputation of the deceased for violence was bad, and who said on cross-examination that he had had a little trouble with the deceased, to state on his redirect examination what that trouble was. *Page 265

That evidence tending to show specific acts of violence towards the witness is inadmissible is well settled. In People v.Druse (103 N.Y. 655) the judgment under review convicted the defendant of murder in the first degree, and the court said: "The rule is that after evidence has been given by a defendant, tending to show that the homicide was committed in self-defense, he may follow it by proof of the general reputation of the deceased for quarrelsomeness and violence. But a defendant is confined to proof of general reputation, and evidence of specific acts of violence toward third persons is inadmissible." (CitingPeople v. Lamb, 2 Keyes, 360, 371; Eggler v. People,56 N.Y. 642, and Thomas v. People, 67 N.Y. 218.)

But the contention is, as I understand it, that while evidence touching any trouble with the witness was not admissible as evidence in chief, yet the door was opened for its admission by the cross-examination. The witness testified on his direct examination, in effect, that the general reputation of the deceased in the community for violence was bad, and the character of this testimony was such as naturally led the learned district attorney, who conducted the trial with ability and at the same time with a careful observance of the rights of the defendant, to cross-examine the witness as follows:

"Q. You have considerable feeling against the deceased, I should judge?

"A. Yes, sir; I don't like him, because he treated me very badly; I treated him well; I gave him to eat and to drink.

"Q. Then you had a little trouble with him yourself; answer yes or no?

"The INTERPRETER: He says, `he nearly killed me in his room;' he says he had; he says, `yes.'"

It will be observed that the district attorney was attempting to show, as was his right on cross-examination, bias on the part of the witness, but he was careful to avoid any inquiry as to whether the deceased or the witness was at fault; he contented himself with showing a feeling of hostility on the part of the witness towards the dead man; but, notwithstanding *Page 266 that his question confined the witness to the answer "yes or no," as to whether he had had trouble with the deceased, the interpreter said that the witness replied to one of the questions: "He nearly killed me in his room," and the defendant's counsel quickly seized upon this answer, which was not called out by the district attorney, as an excuse to get before the jury an occurrence which he well knew he had no right to prove; his ruse is apparent from the fact that, instead of claiming that the evidence was competent generally, he said to the court, in response to its ruling that the evidence was not admissible: "I submit he (referring to the district attorney) has opened the door." There would have been some foundation for this claim had the district attorney called out the statement of the witness that the deceased nearly killed him in his room; but, as we have observed, nothing of the kind was done; on the contrary, the question in terms confined the witness to the answer "yes or no" to the query whether he had had trouble with the deceased, and he was, therefore, not responsible for the statement interjected by the witness, and, hence, there was no foundation for the claim of counsel that such interjection constituted such an opening of the door by the district attorney as would let in the history of a transaction otherwise inadmissible.

On the way to this point I have said, as one step in the argument in support of the ruling of the trial court, that it was the right of the district attorney to inquire of the witness, on cross-examination, whether he entertained ill-feeling toward the deceased. This is so because the direct testimony of the witness was directed to the inquiry whether the deceased had a general reputation for being violent. His general reputation, therefore, in this respect, and in this respect only, was at issue, and to that extent the district attorney was called upon to defend his general reputation. The witness having testified that the general reputation of the deceased in this respect was bad, the district attorney was at liberty to inquire whether the witness had any ill-feeling against the dead man. Whether this ill-feeling were well founded or without any reasonable *Page 267 basis was of no moment, for it was sufficient for his purpose to prove that he was prejudiced against the dead man; that such fact might be considered by the jury in determining the weight that should be given to his testimony. Rapalje's Law of Witnesses (page 338) states the rule as follows: "If the witness admits on cross-examination that he entertains unkind feelings toward the party, it seems that he cannot be asked the cause of those feelings. Prejudice may be shown, but the facts and circumstances causing such prejudice cannot be stated in detail." In Thompson on Trials (Vol. 1, page 398) it is said: "The rule is that the witness may be interrogated as to the state of his feelings toward one of the parties, but that it is not competent to inquire into the cause of such feelings." In State v. Glynn (51 Vermont, 577) it was held that the inquiry put to the witness as to whether he is unfriendly to the party against whom he has testified is so far collateral to the issue that detail will not be permitted, but only the inquiry whether he is unfriendly or not. In Polk v. State (62 Ala. 237) it was held that the enmity or unfriendliness of a witness to the person against whom he testified, may be shown to enable the jury the better to determine, in connection with other evidence, what weight should be accorded to the witness; but that it is not permissible to prove the details of a quarrel or difficulty which gave rise to the enmity or unfriendliness. In Conyers v. Field (61 Georgia, 258) a witness, who had testified against the plaintiff, on cross-examination testified that he had unkind feelings toward the plaintiff. The defendant thereupon insisted that it was his right upon redirect examination to ascertain the cause of those feelings, and the witness was permitted, against the objection and exception of the plaintiff, to give the details of the trouble between him and the plaintiff. On appeal this was held to be error, and the judgment in favor of the defendant was reversed. Other cases to the same general effect are: Bishop v.State (9 Georgia, 121); Cornelius v. State (12 Ark. 782,800), and Butler v. State (34 Ark. 480). Our attention has not been called to any authorities asserting a different rule. InPeople v. Buchanan *Page 268 (145 N.Y. 24) this rule was not the subject of discussion. There the defendant, on cross-examination of the People's witness, inquired as to a conversation between the witness and the coroner, and the court justly said: "It was proper enough and just that the jury should be placed in possession of what the conversation actually was. * * * Even if the cross-examination has been as to facts not admissible in evidence, the rule seems to be that the witness may be re-examined as to evidence so given." But in this case, as we have seen, the district attorney did not on his cross-examination inquire of the witness touching any transactions between him and the deceased, but instead kept well within the rule which entitled him on cross-examination to inquire of the witness whether he entertained hostile feelings toward the deceased. It follows that if the view expressed be sound the court was right in sustaining the objection. But if the rule were otherwise than as asserted by the cases cited, and any authority could be found for the proposition that a mere inquiry on cross-examination as to whether the witness was at enmity with the deceased operated to open the door so as to let in on redirect examination evidence which this court asserted inPeople v. Druse (supra) was inadmissible, it would be our duty, in obedience to the command of section 542 of the Code of Criminal Procedure, to disregard the error, for, if ever there was a case in which the evidence excluded could have no important effect upon the result, this is such a case.

The judgment of conviction should be affirmed.

MARTIN and VANN, JJ., concur with LANDON, J., for reversal, and BARTLETT, J., concurs with LANDON, J., on second ground stated in his opinion, viz., the error in refusing to charge as requested; O'BRIEN and HAIGHT, JJ., concur with PARKER, Ch. J., for affirmance.

Judgment of conviction reversed, etc. *Page 269