Appeal from Court of General Sessions, New York County.
Albert Mayer was convicted of crime, and appeals. Reversed.
See 114 N.Y.Supp. 25.
Clark L. Jordan, for appellant.
E. Crosby Kindleberger, Deputy Asst. Dist. Atty., for the People.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
From the nature of the crime charged and the evidence given to sustain it, any discussion of the evidence upon which the jury have rendered a verdict of guilty would be improper in an opinion to be published. I will simply indicate the conclusion at which I have arrived from an examination of this record.
The principal witness against the defendant was a boy about 14 years of age residing with his parents in the city of New York. Upon both his direct and cross-examination his testimony was so confused and contradictory, he asserting at one time and at another denying [117 N.Y.S. 521] facts in relation to this crime, that no reliance can be placed upon his testimony, and the district attorney concedes that it was insufficient to convict, if not corroborated. His final story, however, seems to be that the occurrence happened in a back room of the defendant's apartment, away from the street, after it was dark, and with no light in the room. The witness testified again and again that the defendant did nothing to him in the kitchen or in the front room, the front room meaning the room that had windows facing on the street; that the occurrence happened in the bedroom; that there was no light there; and that it was entirely dark at the time. All this happened on the 13th of June, 1908. As to this testimony, the witness was entirely uncorroborated. No one is alleged to have seen this occurrence except the boy; and in view of the utter unreliability of the evidence that he gave, irrespective of the necessity of corroboration, I do not think it would be sufficient to justify the conviction. The evidence offered as corroborating the boy was insufficient of itself to convict the defendant, was consistent with innocence of this crime charged, and considering the whole case made out by the people, and in view of the testimony of the defendant and the boy's mother, I think the judgment should be reversed on the ground that the people have not made out a case of guilt beyond a reasonable doubt which justified a conviction. Even if the evidence to justify the court in submitting the question to the jury was sufficient, I think the record discloses the fact that the defendant did not have a fair trial, and that the attitude of the court towards the defendant and his counsel during the whole trial was such that the defendant did not have an opportunity of fairly presenting his defense, so that the jury could fairly and intelligently pass upon the question as to his innocence or guilt.
When the people rested, the defendant made a motion that the court direct the jury to acquit, when the court at once said:
" The motion is denied. There is no use of arguing that."
The defendant then called the boy's mother as a witness, and the mother was asked whether, after the boy was in custody, she had a talk with him and asked him whether the defendant had done anything improper to him. That was objected to as leading, and the objection sustained. One or two other questions were asked of the same character, which were also objected to, when the court stated to defendant's counsel:
" Now, if you persist in this course of leading the witness, I will take some action after this trial is over; and I warn you not to waste our time further by putting leading questions, again and again, after I have just sustained the objection to at least four of such questions, put right together. And I think your manner is a contempt of court, and will so consider it, if you continue it, and, at the conclusion of this trial, I will take up the matter, if you continue. If you think that you can ask leading questions, after I have excluded them at least four times, I will see whether you can or not."
On the cross-examination of the boy, his attention had been called to this interview, and he had been asked whether he had made these statements to his mother. Counsel for the defendant was entitled to directly ask the witness whether the boy had made the statements to the witness that he had denied having made, and which [117 N.Y.S. 522] were in direct contradict|on to the testimony that he had given upon the trial. The exception to the exclusion of that testimony was well taken, and certainly the counsel had not subjected himself to such a rebuke from the court, with a threat of punishment, in putting questions which were competent.
Upon the examination of the defendant, his counsel attempted to show the witness a plan of the apartment showing the location of the different rooms, when the court interposed and refused to allow his counsel to show him the plan, and even refused to allow the ...