APPEAL by the defendant, Alfred Nelson, from a judgment of the County Court of Albany county, rendered against the defendant on the 2d day of March, 1911, convicting him of the crime of manslaughter in the first degree upon which he was sentenced to imprisonment at Dannemora for not less than ten years or more than nineteen years and six months.
Mahany & Kingston [Rowland B. Mahany of counsel], for the appellant.
Rollin B. Sanford, District Attorney, for the respondent.
The defendant is convicted of the crime of manslaughter in the first degree in causing the death of William Carl Ellis.
They were friends and companions; Ellis was the larger and stronger man of the two. The evidence shows that Ellis was at times irritable and quarrelsome; the defendant ordinarily peaceable and quiet. The defendant was the superintendent of an apartment house owned by the father of Ellis and Ellis was employed about the apartment under the superintendent. In the evening they were seen talking upon the street and approaching the apartment. They entered the room occupied by the defendant and closed the door behind them, which was held shut by a spring lock. An altercation and scuffle was heard in the room. Within a few minutes after they entered the room the defendant came to the door dressed only in his pajamas and sent for Ellis' father, then for a doctor. Upon the arrival of the doctor, Ellis was found in a wounded condition but neither he nor the defendant actually realized his condition. He was exhausted and told the doctor that the defendant had hit him on the head, and later he said that they had a scuffle and he had been hit on the head. The defendant was in a dazed condition and apparently did not realize the extent of Ellis' injury or the real situation. He stated that nothing had happened, 'we ruffled around the room together and by and by we both went down.' Ellis was found with several wounds upon his person and died from a stab wound in the abdomen caused with an ice pick and the bloody ice pick was found upon a lounge near by.
The circumstances narrated do not show that the defendant was criminally liable for the death of Ellis. When charged with a crime, he is not required to explain the situation or account for Ellis' condition. The People must show by independent facts that the defendant criminally caused the death. Three other circumstances are alleged to have a bearing upon the defendant's guilt. It is said that after Ellis had abandoned hope of life he informed his mother that the defendant had hit him on the head with an ice pick, and when she discovered and pointed out to him the wound in the abdomen, he then said, 'Oh, yes, * * * Nelson stabbed me.' He also stated to Dr. Lewi, under similar circumstances, that they were scuffling around and the defendant hit him on the head.
This evidence does not clearly indicate any criminal act by the defendant as, in a sense, Ellis' death was caused by the defendant and he was stabbed by the defendant. The real question is whether the stabbing and the injury which he suffered at the hands of the defendant was a criminal act or was done by the defendant in proper self-defense or in a manner not criminal.
The defendant was called as a witness in his own behalf. His story was not unreasonable or improbable and is in harmony with many of the conceded facts. So far as his evidence relates to the alleged crime, it is decidedly favorable to himself and raised in no respect an inference that his acts were criminal. His version, briefly stated, is that after they entered the office of the apartment, a controversy arose, hard words followed and he ordered Ellis out of the office. He went saying, 'I'll fix you.' Defendant took off his clothing, put on his pajamas, extinguished the light in the office and sat on his couch in the adjoining sleeping room. When Ellis entered and the defendant saw his hand coming down upon him with the ice pick in it, he threw his arms around Ellis and they grappled, they struggled toward the door and tripped over something and fell with their heads against the radiator. He was somewhat dazed. The struggle continued. When he got up he did not know that Ellis was injured and when told by him that he was hurt he gave the alarm. Both had been drinking. Somewhere about ten minutes elapsed between the time they entered the room and the giving of the alarm.
Upon cross-examination the district attorney asked him twenty-two questions relating to an alleged assault by him upon one Wright three years before. The jury might well infer that under circumstances very similar to those in question, when he and Wright were in an office of which the defendant was superintendent, they had a fight with the result that the defendant was taken to the hospital and the defendant did not know whether he hit Wright over the head with a soda water bottle or not, or threatened his life and gives quite unsatisfactory answers to several questions upon the subject. The jury might well infer that the Wright matter in many of its details was very similar to the one in question and that the
defendant was avoiding the real truth with reference to it and giving the most favorable view of it to himself. The defendant objected to the line of examination, that it was pre-judicial and raised inferences which could not be met, to which the court replied that it could not prevent the inferences, that the People had the right to show that he had committed the crime upon Wright.
Ordinarily in a criminal action it cannot be proved as an independent circumstance that the defendant has committed another crime, although, if he offers himself as a witness, upon cross-examination for the purpose of affecting his credit, it may be shown that he has been convicted of crime or that he has committed a crime. The extent of this examination, however, always rests in the sound discretion of the court, and in exercising the discretion the court should remember that the defendant is not ordinarily in these cases a voluntary witness but is coerced to submit to the examination, and the examination should be held within proper bounds. ( People v. Crapo, 76 N.Y. 288.) If he has committed a crime or an assault, the question should be asked and the answer obtained, but when by an extended examination it is sought to call out the commission of a crime so similar in many respects to the one in issue, the court is called upon to see that the examination is held within proper limits.
In People v. Dorthy (156 N.Y. 237) it was held proper upon cross-examination to show that the defendant had been disbarred as an attorney, but a judgment against him was reversed because all the facts and circumstances leading up to the disbarment were shown, the court saying the fact of disbarment was enough.
The case against the defendant is so close that I am satisfied the court exceeded a reasonable discretion in permitting the extended examination of the defendant with reference to the Wright matter. While offered for the alleged purpose of affecting his credit, it evidently had a tendency to satisfy the jury that the defendant was probably guilty here on account of his conduct in that matter. The court limited somewhat in its charge the effect to be given to this evidence, but I think it is quite apparent that the harm had already been done and
that this evidence prevented the defendant's case from having the impartial and fair consideration ...