Pease v. Smith

5 Lans. 519

• Court: New York Supreme Court
• Decided: March 15, 1872
• Status: Published

Opinions

Miller, P. J.

1 cannot concur with my brother Balcom, in holding that the judge erred, upon the trial of this action, in allowing the plaintiff to prove the reason why Mason, the porter employed by them, was not produced and sworn as a witness. The plaintiffs proved that the goods, for the value of which the action was brought, had been stolen by the porter, and after showing that a portion' of the stolen property had been traced and discovered in the possession of another party, the question was put, “ What became of the porter ?” This was objected to by defendant, without stating any grounds, and without any exception being taken to the ruling. The witness (one of the plaintiffs) answered,.“ He was arrested, and in a few days was sent to Clinton prison.” The plaintiffs’ counsel stated that he only wished to account for the absence of the porter. The defendant excepted to it as immaterial and calculated to prejudice the case. The following question was then put, “ The porter was sentenced for this theft and sent to Clinton prison?” to which there was the same objection, ruling and exception, and the witness answered, “ Yes, he was sent to Clinton prison.”

As to the materiality of the evidence, I think it was competent for the purpose of accounting for the absence of the . porter. The theory of the plaintiffs was, that the property had been stolen and had been disposed of by the thief to a junk dealer who sold it to the defendants. The plaintiffs were therefore bound to make out that it was stolen, and that the porter was the thief. As a part of this evidence, it was material to account for the absence of the porter, and to show why he was not called upon to testify. This could only be done by showing why he was not there and'where he then was. It is admissible evidence to show that a person who might have been a witness has absconded and left the State, and after proving a larceny, it seems to me, it was competent to show, in corroboration of the evidence of the theft, that the accused party was arrested and convicted and sent to the State prison. This would add greatly to the force and strength of the other testimony, while to stop at mere proof of the theft, without going further, would somewhat deteriorate from it. True, the plaintiffs might have made out a case without accounting for the absence of Mason the porter, and perhaps were not bound to call him, even if present in court; but it cannot be claimed, I think, that if the plaintiff had stopped with simple proof of the theft and nothing more, his case would have been as strong as if the arrest, conviction and imprisonment had been shown.

As to the evidence being prejudicial to the case: if a theft was established, then a conviction and sentence of the thief would not prejudice the case, except so far as it tended to strengthen the evidence of the larceny, and in that point of view it was clearly competent.

No objection was taken that the record was not produced ; and if it had been, I think it would not have been available, because it was a collateral matter.

I think that no error was committed by the judge upon the trial, and this judgment must be affirmed, with costs.