Loughran, Ch. J.
On May 19, 1949, a Grand Jury presented in the Supreme Court of this State an indictment in this text:
“ The grand jury op the county op monroe, by this indictment, accuse the defendant, George Hetenyi, of the crime of Murder in the First Degree, in violation of Section 1044, subdivision 1, of the Penal Law of the State of New York, committed as follows:
“ The defendant, on or about April 22,1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design to effect the death of Jean Gareis Hetenyi, killed the said Jean Gareis Hetenyi by shooting her twice in the body with a firearm, thereby inflicting injuries which resulted in and caused her death.”
Jean Gareis Hetenyi was the wife of the defendant. Her bullet-pierced dead body was found in the Genesee Eiver at a point within the county of Monroe on April 23, 1949.
The defendant has been twice tried upon the above indictment. Both trials were held in the County Court of Monroe County. On the first trial, the defendant was found guilty of murder in the second degree and was sentenced to imprisonment for an indeterminate period of time the minimum of which was to be not less than fifty years and the maximum of which was to be for his natural life (see Penal Law, §§ 1046-1048). The defendant challenged that judgment by an appeal to the Appellate Division, because the trial court did not submit to the jury the [83]*83question whether there was sufficient evidence of the place of the crime as alleged in the indictment, i.e., Monroe County, New York. Indeed the trial court in respect of that question said to the jury: “ The finding of the body of the deceased, in the condition in which it was found within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe ”. It was impossible, of course, to sustain that ruling. Hence the Appellate Division reversed the first conviction of the defendant (277 App. Div. 310, 317) and, when the People brought that reversal to us for review, we affirmed the Appellate Division (301 N. Y. 757; see Code Crim. Pro., §§ 252, 355, and People v. Hillman, 246 N. Y. 467, 473).
The second trial resulted in a judgment convicting the defendant of murder in the first degree and accordingly he was sentenced to the punishment of death. (See Penal Law, §§ 1044-1045.) From that judgment of conviction, he then appealed directly to this court (see Code Grim. Pro., §§ 517-520).
On the second trial, the question in respect of the alleged place of the crime was submitted by the trial court to the jury in this manner:
“ You will recall, ladies and gentlemen, that during the course of this trial a great deal has been said and much stress has been laid upon the question of the place where this killing occurred, that is, the venue or locus of the crime. I further charge you that, under this indictment, this defendant cannot be convicted of the crime charged or of any of the degrees of homicide unless you find this killing took place in Monroe County. This is a question of fact that must be determined by the jury.
“ However, the standard of proof that is required under our law by which you are to determine this fact is distinctly different from the standard of proof required in determining the fact that the defendant did the killing. This distinction, ladies and gentlemen, is of great importance.
“ You must find that the defendant killed the deceased beyond a reasonable doubt * * #.
“ However, as to the place where the killing occurred, that is the locus or venue of the crime, the proof of that fact does not require proof beyond a reasonable doubt. The venue of the crime is not a part of the crime itself and need not be proven [84]*84beyond a reasonable doubt. In the absence of direct proof as to the venue, or the place where the killing occurred, that question may be determined by circumstantial evidence from all the relevant evidence.
“ In this case there appears to be no direct evidence as to where the shooting actually took place, so you must rely upon circumstantial evidence in determining that fact; and, again, you are permitted to draw inferences from all the facts and circumstances in the case. * * *
“ The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred. If, from the facts in evidence, the only rational conclusion that can be drawn is that the crime was committed in the county alleged, the proof is sufficient.”
When it reversed the judgment entered on the first trial, the Appellate Division said: “ The locus of the crime is not a part of the crime itself, and, as we view it, need not be proved beyond a reasonable doubt.” In the same opinion, the Appellate Division also quoted with approval the rule expressed in American Jurisprudence (Vol. 20, Evidence, § 1220) in this way: ‘1 The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred.” (277 App. Div., p. 315.) The rules regulating proof of venue in criminal cases as so laid down by the Appellate Division were on the second trial herein adopted by the Trial Judge as appears by the words we have already quoted from the charge which he delivered to the jury on that trial. We, too, concur in the views expressed by the Appellate Division on that branch of the case.
What follows has reference only to the second trial of the defendant which we now review on the direct appeal he has taken to this court from the judgment of conviction which on that trial was entered against him. We turn first to this basic question: Does the record before us exhibit evidence which justifies the jury’s finding that the killing of the defendant’s wife occurred in Monroe County, New York?
The wife of the defendant was last seen alive on Delaware Avenue in the city of Buffalo in Erie County, New York, at about 8:00 p.m. on Friday, April 22, 1949, by a witness who then and there saw her and the defendant enter an auto[85]*85mobile which thereupon moved away. The defendant was next seen early in the morning of April 23, 1949, in the lobby of a hotel in the city of Rochester in Monroe County, and a little later was seen with his automobile on the Court Street bridge which spans the Genesee River in that city. At each of these places, the defendant had a conversation with a person who was a stranger to him and in both conversations he made inquiries in respect of the course and flow of the Genesee River and in respect of a raceway which ran parallel to that river at Court Street.
It was about 4:00 p.m. on April 23, 1949, when the dead body of the defendant’s wife was found in the Genesee River. An hour later, an autopsy was performed upon the body by a coroner’s physician who, as a witness for the People, gave the following testimony: (1) The wife of the defendant was not drowned but was dead when her body struck the water of the Genesee River; and (2) she died between 10:00 p.m. on Friday, April 22, 1949, and 6:00 a.m. on Saturday, April 23, 1949, “ with a leeway of three or four hours either way.” The same physician listed the causes of death as follows: two gunshot wounds in the chest, fractures of left ribs, perforation of left lung, blood and air in the pleural cavity, bullet wound in the spine, shock and hemorrhage.
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Loughran, Ch. J.
On May 19, 1949, a Grand Jury presented in the Supreme Court of this State an indictment in this text:
“ The grand jury op the county op monroe, by this indictment, accuse the defendant, George Hetenyi, of the crime of Murder in the First Degree, in violation of Section 1044, subdivision 1, of the Penal Law of the State of New York, committed as follows:
“ The defendant, on or about April 22,1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design to effect the death of Jean Gareis Hetenyi, killed the said Jean Gareis Hetenyi by shooting her twice in the body with a firearm, thereby inflicting injuries which resulted in and caused her death.”
Jean Gareis Hetenyi was the wife of the defendant. Her bullet-pierced dead body was found in the Genesee Eiver at a point within the county of Monroe on April 23, 1949.
The defendant has been twice tried upon the above indictment. Both trials were held in the County Court of Monroe County. On the first trial, the defendant was found guilty of murder in the second degree and was sentenced to imprisonment for an indeterminate period of time the minimum of which was to be not less than fifty years and the maximum of which was to be for his natural life (see Penal Law, §§ 1046-1048). The defendant challenged that judgment by an appeal to the Appellate Division, because the trial court did not submit to the jury the [83]*83question whether there was sufficient evidence of the place of the crime as alleged in the indictment, i.e., Monroe County, New York. Indeed the trial court in respect of that question said to the jury: “ The finding of the body of the deceased, in the condition in which it was found within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe ”. It was impossible, of course, to sustain that ruling. Hence the Appellate Division reversed the first conviction of the defendant (277 App. Div. 310, 317) and, when the People brought that reversal to us for review, we affirmed the Appellate Division (301 N. Y. 757; see Code Crim. Pro., §§ 252, 355, and People v. Hillman, 246 N. Y. 467, 473).
The second trial resulted in a judgment convicting the defendant of murder in the first degree and accordingly he was sentenced to the punishment of death. (See Penal Law, §§ 1044-1045.) From that judgment of conviction, he then appealed directly to this court (see Code Grim. Pro., §§ 517-520).
On the second trial, the question in respect of the alleged place of the crime was submitted by the trial court to the jury in this manner:
“ You will recall, ladies and gentlemen, that during the course of this trial a great deal has been said and much stress has been laid upon the question of the place where this killing occurred, that is, the venue or locus of the crime. I further charge you that, under this indictment, this defendant cannot be convicted of the crime charged or of any of the degrees of homicide unless you find this killing took place in Monroe County. This is a question of fact that must be determined by the jury.
“ However, the standard of proof that is required under our law by which you are to determine this fact is distinctly different from the standard of proof required in determining the fact that the defendant did the killing. This distinction, ladies and gentlemen, is of great importance.
“ You must find that the defendant killed the deceased beyond a reasonable doubt * * #.
“ However, as to the place where the killing occurred, that is the locus or venue of the crime, the proof of that fact does not require proof beyond a reasonable doubt. The venue of the crime is not a part of the crime itself and need not be proven [84]*84beyond a reasonable doubt. In the absence of direct proof as to the venue, or the place where the killing occurred, that question may be determined by circumstantial evidence from all the relevant evidence.
“ In this case there appears to be no direct evidence as to where the shooting actually took place, so you must rely upon circumstantial evidence in determining that fact; and, again, you are permitted to draw inferences from all the facts and circumstances in the case. * * *
“ The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred. If, from the facts in evidence, the only rational conclusion that can be drawn is that the crime was committed in the county alleged, the proof is sufficient.”
When it reversed the judgment entered on the first trial, the Appellate Division said: “ The locus of the crime is not a part of the crime itself, and, as we view it, need not be proved beyond a reasonable doubt.” In the same opinion, the Appellate Division also quoted with approval the rule expressed in American Jurisprudence (Vol. 20, Evidence, § 1220) in this way: ‘1 The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred.” (277 App. Div., p. 315.) The rules regulating proof of venue in criminal cases as so laid down by the Appellate Division were on the second trial herein adopted by the Trial Judge as appears by the words we have already quoted from the charge which he delivered to the jury on that trial. We, too, concur in the views expressed by the Appellate Division on that branch of the case.
What follows has reference only to the second trial of the defendant which we now review on the direct appeal he has taken to this court from the judgment of conviction which on that trial was entered against him. We turn first to this basic question: Does the record before us exhibit evidence which justifies the jury’s finding that the killing of the defendant’s wife occurred in Monroe County, New York?
The wife of the defendant was last seen alive on Delaware Avenue in the city of Buffalo in Erie County, New York, at about 8:00 p.m. on Friday, April 22, 1949, by a witness who then and there saw her and the defendant enter an auto[85]*85mobile which thereupon moved away. The defendant was next seen early in the morning of April 23, 1949, in the lobby of a hotel in the city of Rochester in Monroe County, and a little later was seen with his automobile on the Court Street bridge which spans the Genesee River in that city. At each of these places, the defendant had a conversation with a person who was a stranger to him and in both conversations he made inquiries in respect of the course and flow of the Genesee River and in respect of a raceway which ran parallel to that river at Court Street.
It was about 4:00 p.m. on April 23, 1949, when the dead body of the defendant’s wife was found in the Genesee River. An hour later, an autopsy was performed upon the body by a coroner’s physician who, as a witness for the People, gave the following testimony: (1) The wife of the defendant was not drowned but was dead when her body struck the water of the Genesee River; and (2) she died between 10:00 p.m. on Friday, April 22, 1949, and 6:00 a.m. on Saturday, April 23, 1949, “ with a leeway of three or four hours either way.” The same physician listed the causes of death as follows: two gunshot wounds in the chest, fractures of left ribs, perforation of left lung, blood and air in the pleural cavity, bullet wound in the spine, shock and hemorrhage.
The wife of the defendant was killed in his automobile. Numerous stains in which human blood was present were found inside that vehicle on April 26, 1949. A Rochester police officer later found in the vehicle a bullet which he compared with two bullets that had been recovered from the body of the defendant’s wife. In the opinion of that officer as a ballistics expert all three bullets had been fired from the same pistol. The pistol was not found.
The last three paragraphs above are, we think, an adequate outline of the case made by the People. The facts there stated, as we believe, were an ample warrant for the finding by the jury that the crime in question was committed by the defendant in Monroe County, New York, as alleged in the indictment. Hence we pass to a consideration of the arguments that have been advanced in behalf of the defendant on this appeal.
The discovery of the body of the defendant’s wife in the Genesee River was made by Mrs. Clara Beach at about 4:00 p.m. [86]*86on Saturday, April 23, 1949. At about 10:00 a.m. on that same day Mrs. Beach had been on the same riverbank at some distance from the spot where the body was later discovered by her. On that earlier occasion, she picked up a leather holster which she turned over to the Rochester police. According to expert witnesses for the People, that holster had been constructed to accommodate a twenty-five calibre pistol and other witnesses for the People testified that the defendant once had a similar holster in his possession.
In respect of the holster, however, counsel for the defendant at the conclusion of the charge said to the trial court: “ I ask your Honor to charge that there being no proof that the holster, exhibit 14, was the same as previously seen in the defendant’s possession, the jury may not draw an inference therefrom that the defendant was on the bank of the Genesee River in Monroe County and that he had a gun with which he there killed his wife in Monroe County.” In response to that request, the trial court said: “ I decline to so charge.” But the trial court, at the request of the defendant’s counsel, afterward added to its charge an instruction in this text: “ If the jury find that this was the same holster they may not draw from that the inference that he possessed the gun which it accommodated.” These last words of the court to the jury upon the subject of the holster must be taken, we think, to have reduced the evidentiary significance of that object to a minimum in the minds of the jury. Hence the admission of the holster into evidence was not, in our judgment, a material error.
The defendant did not take the witness stand nor did he call any witness in his behalf. In the course of the summation for the People, the District Attorney referred to the bloodstains that were found inside the defendant’s automobile and then said that “ nobody in the wide world with one exception ” was ever suing to tell the jury how the stains came to be there. In that summation, the District Attorney also remarked to the jury: <6 I say to you that that lonely dark place on the bank of the Genesee River is the place at which you can infer and must infer, in the light of all the evidence in the case, that this crime took place. By what ruse this defendant brought her down here you’ll never know, nor I’ll never know, not as long as he stands on his constitutional rights, so-called, but undoubtedly there [87]*87were some.” In the course of his summation, the District Attorney also referred to the testimony of the witness who saw the defendant on the Court Street bridge in the city of Rochester on the night in question. In respect of that testimony, the District Attorney said: “ * * * let me ask this very significant question, — has there been any explanation at all here as to why he was on that bridge by the defense? Not one word. Any explanation indeed as to what he was doing in the city of Rochester the very night his wife’s body was placed in the Genesee River? ”
At the close of the summation of the District Attorney, counsel for the defendant said: “ I except to that portion of his summary in which he said in substance: ‘ You and I will never know; he still stands on his constitutional rights.’ ” For a final word, the District Attorney then said: “ If he stands on his constitutional rights.” Despite the exceptions taken by the defendant’s counsel, the Trial Judge ignored the District Attorney’s repeated accentuation of the defendant’s failure to testify. These errors had an obvious tendency to make the trial unfair and cannot be dismissed as merely technical mistakes (see People v. Minkowitz, 220 N. Y. 399, 404-405).
The People were allowed to show the defendant to have been a clergyman who had given up one religion for another at frequent intervals. The reason why that evidence was offered is not obscure. In respect of that evidence the District Attorney in his summation declared to the jury: 111 say to you this, ladies and gentlemen, — I say it in all seriousness, — that you may conclude from his ecclesiastical history certainly one thing, — here’s a man to whom religion is a fraud, who engages in it purely and simply for selfish reasons. Faith to him means nothing. He can transfer from faith to faith to faith when it serves his own selfish interest best. * * * I say to you that from that fact you get at least this aspect of this defendant, and it is all incorporated in that all-informative word, a word none of us like to use, but occasionally must fasten on our fellowman, a renegade, and it shows the character of the man and the character of the man is important in your determinations as to whether he would have committed the crime which has been charged against him.”
[88]*88Thus the prosecution breached a firmly established rule of our law which in People v. Zackowitz (254 N. Y. 192, 197) was stated by Caedozo, Ch. J., in this way: ‘1 Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one * * *. In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar.” (See 1 Wigmore on Evidence [3d ed.], §§ 57, 192.) The rule thus forcibly expressed is a rule of fundamental fairness in the protection of the individual against unjust prosecution and is inflexibly enforced in our courts. Hence, we may not overlook a breach thereof as not affecting the substantial rights of an accused within the meaning of section 542 of the Code of Criminal Procedure, ‘ ‘ when the purpose and effect of the breach is to create prejudice against the defendant by proof that his character is bad, even if the evidence convinces us of the defendant’s guilt.” (People v. Nuzzo, 294 N. Y. 227, 233, 234.)
The judgment of conviction should be reversed and a new trial ordered.