Page, J.:
In my opinion the admission of the letter of Leo Stein, over the objection and exception of the defendant, constitutes reversible error which was aggravated by the comments of the trial judge at the time of the admission, and accentuated by his charge. When the defendant takes the .stand in his own behalf he thereby subjects himself to cross-examination to the same extent as any other witness. The rule in this State is that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his privilege. (People v. Hinksman, 192 N. Y. 421, 433.) While the extent to which the adverse party may cross-examine into these collateral facts is within the sound discretion of the judge presiding at the trial, a limitation naturally suggests itself that the examination should tend to show that the witness was not entitled to belief. . For by taking the stand in his own behalf the defendant does not put his character in issue, generally; he merely offers himself as a person whose testimony is entitled to be believed, and his character for truth and veracity is liable to be impeached. In a criminal case a defendant’s general character is not subject to inquiry unless he has made it an issue by offering evidence [250]*250of Ms good character. (People v. Richardson, 222 N. Y. 103, 107.) The vice in the present case was not, however, in the questions asked by the assistant district attorney, but M the reception of the letter in evidence as a part of the cross-examination. The letter had no relevancy or materiality to the issues before the court, nor was the inference that the fifty dollars asked for was to be used to get two witnesses to testify falsely the only one wMch could be drawn. An inference that the money was necessary to pay the legitimate expenses of the witness was just as reasonable. In fact, although the judge was very free to express Ms view that the first was the inference that he drew, and that was the only reason that he admitted the letter in evidence, nevertheless, he recogmzed that an innocent construction was possible, and he left it to the jury, as one of the issues in tMs case to be determined, whether the defendant had by complying with the request in the letter committed “ a criminal act, a vicious, immoral act.” It may be that, as bearing upon the defendant's credibility, he could have been asked whether he had sent money to one Leo Stein for the purpose of hiring two witnesses to testify falsely; and if he had demed it, the district attorney would have been concluded by the answer, and would havé had no right to contradict it. (People v. De Garmo, 179 N. Y. 130, 135.) The reason that the contradiction is not allowed is that thereby a collateral issue would be brought into the case. In the instant case the questions were not asked, but the letter written by a tMrd person was offered as evidence of the fact, or at least from wMch the jury could draw the inference of the fact, that in a matter entirely foreign to the case at bar the defendant had contributed money wMch the third party was to use to bribe witnesses to testify falsely relating to the other matter. The books will be searched in vain for a precedent for such a perversion of the rules of evidence. Stein could not have -been allowed to testify to such facts. (Hall v. U. S. Radiator Co., 76 App. Div. 504.) To admit Ms letter in evidence is to receive hearsay, when direct evidence would not have been allowed. (People v. Dorthy, 156 N. Y. 237, 243.)
But further, it is claimed that the letter was properly admitted to show that the defendant was an associate of [251]*251criminals. Two cases are cited as authorities. (People v. Katz, 209 N. Y. 311, 331; Kruse v. N. Y. C. & H. R. R. R. Co., 146 App. Div. 485, 489.) In the Katz case the defendant had given evidence of his good character and the court said: “ Since the defendant was stoutly protesting his innocence and throwing his previous good character into the balance, it was also proper to show that the defendant was associating with men like Persch and Adams and Aldhouse, about whose antecedents he had made no inquiry, and who were engaged in transactions which resulted in criminal prosecutions.” In the instant case the defendant did not throw “ his previous good character into the balance.” The Kruse case was an action for personal injuries sustained by the plaintiff, who with others was stealing a ride on one of the defendant’s freight trains. The plaintiff, on his direct examination, had testified to the good character of his companions generally. On cross-examination he was asked whether he did not know that Roddy, one of his three companions, had been convicted of the crime of burglary. The court said that this question had “ a bearing upon the question of the plaintiff’s credibility as a witness, if he knowingly consorted with one who had been convicted of a serious crime.” This statement was immediately shown to be mere obiter dictum, for the court said: “ In any event he denied such knowledge on his part, and no proof was offered to contradict him thereon, and we cannot speculate whether this incident affected the verdict of the jury improperly against him.” In the case of People v. Pettanza (207 N. Y. 560, 566, 567) a witness called by the defendant to testify as to his good character was asked whether he did not know that Salamoni, an acquaintance of the defendant, had been arrested twenty times and that his picture was in the Rogues Gallery. The court said of this and other questions tending to show that the defendant had associated with criminals, “ a defendant charged with a criminal offense must be prosecuted according to the forms of law, and his guilt must be established, if at all, by legal evidence, no matter what his origin, his station in fife, or his associations may have been, and no matter what other offenses he may have committed,” and in another part of the opinion the court thus states the obvious purpose of offering such evidence (p. 565): That “ by surrounding the [252]*252defendant with an atmosphere of criminality, which might lead the jury to think that he would not be convicted amiss, whether innocent or guilty of the. particular crime charged.”
In my opinion we should not extend the well-settled limitations prescribed for the admissibility of evidence in criminal cases merely for the reason that it is easier for the public prosecutor to obtain convictions if such limitations were removed. In my opinion the letter was not admissible either to prove that the defendant had been guilty of another offense, or that he was an associate of criminals. Judge Werner, in People v. Molineux (168 N. Y. 264, 309), quoted with, approval the statement in Shaffner v. Commonwealth (72 Perm. St. 60) with reference to the reception in evidence of another criminal act alleged to have been committed by the defendant unless there was some connection with the crime charged in the indictment: “ Without this obvious connection it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burthen a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offenses charged against him, of which, if fairly tried, he might. acquit himself.
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Page, J.:
In my opinion the admission of the letter of Leo Stein, over the objection and exception of the defendant, constitutes reversible error which was aggravated by the comments of the trial judge at the time of the admission, and accentuated by his charge. When the defendant takes the .stand in his own behalf he thereby subjects himself to cross-examination to the same extent as any other witness. The rule in this State is that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his privilege. (People v. Hinksman, 192 N. Y. 421, 433.) While the extent to which the adverse party may cross-examine into these collateral facts is within the sound discretion of the judge presiding at the trial, a limitation naturally suggests itself that the examination should tend to show that the witness was not entitled to belief. . For by taking the stand in his own behalf the defendant does not put his character in issue, generally; he merely offers himself as a person whose testimony is entitled to be believed, and his character for truth and veracity is liable to be impeached. In a criminal case a defendant’s general character is not subject to inquiry unless he has made it an issue by offering evidence [250]*250of Ms good character. (People v. Richardson, 222 N. Y. 103, 107.) The vice in the present case was not, however, in the questions asked by the assistant district attorney, but M the reception of the letter in evidence as a part of the cross-examination. The letter had no relevancy or materiality to the issues before the court, nor was the inference that the fifty dollars asked for was to be used to get two witnesses to testify falsely the only one wMch could be drawn. An inference that the money was necessary to pay the legitimate expenses of the witness was just as reasonable. In fact, although the judge was very free to express Ms view that the first was the inference that he drew, and that was the only reason that he admitted the letter in evidence, nevertheless, he recogmzed that an innocent construction was possible, and he left it to the jury, as one of the issues in tMs case to be determined, whether the defendant had by complying with the request in the letter committed “ a criminal act, a vicious, immoral act.” It may be that, as bearing upon the defendant's credibility, he could have been asked whether he had sent money to one Leo Stein for the purpose of hiring two witnesses to testify falsely; and if he had demed it, the district attorney would have been concluded by the answer, and would havé had no right to contradict it. (People v. De Garmo, 179 N. Y. 130, 135.) The reason that the contradiction is not allowed is that thereby a collateral issue would be brought into the case. In the instant case the questions were not asked, but the letter written by a tMrd person was offered as evidence of the fact, or at least from wMch the jury could draw the inference of the fact, that in a matter entirely foreign to the case at bar the defendant had contributed money wMch the third party was to use to bribe witnesses to testify falsely relating to the other matter. The books will be searched in vain for a precedent for such a perversion of the rules of evidence. Stein could not have -been allowed to testify to such facts. (Hall v. U. S. Radiator Co., 76 App. Div. 504.) To admit Ms letter in evidence is to receive hearsay, when direct evidence would not have been allowed. (People v. Dorthy, 156 N. Y. 237, 243.)
But further, it is claimed that the letter was properly admitted to show that the defendant was an associate of [251]*251criminals. Two cases are cited as authorities. (People v. Katz, 209 N. Y. 311, 331; Kruse v. N. Y. C. & H. R. R. R. Co., 146 App. Div. 485, 489.) In the Katz case the defendant had given evidence of his good character and the court said: “ Since the defendant was stoutly protesting his innocence and throwing his previous good character into the balance, it was also proper to show that the defendant was associating with men like Persch and Adams and Aldhouse, about whose antecedents he had made no inquiry, and who were engaged in transactions which resulted in criminal prosecutions.” In the instant case the defendant did not throw “ his previous good character into the balance.” The Kruse case was an action for personal injuries sustained by the plaintiff, who with others was stealing a ride on one of the defendant’s freight trains. The plaintiff, on his direct examination, had testified to the good character of his companions generally. On cross-examination he was asked whether he did not know that Roddy, one of his three companions, had been convicted of the crime of burglary. The court said that this question had “ a bearing upon the question of the plaintiff’s credibility as a witness, if he knowingly consorted with one who had been convicted of a serious crime.” This statement was immediately shown to be mere obiter dictum, for the court said: “ In any event he denied such knowledge on his part, and no proof was offered to contradict him thereon, and we cannot speculate whether this incident affected the verdict of the jury improperly against him.” In the case of People v. Pettanza (207 N. Y. 560, 566, 567) a witness called by the defendant to testify as to his good character was asked whether he did not know that Salamoni, an acquaintance of the defendant, had been arrested twenty times and that his picture was in the Rogues Gallery. The court said of this and other questions tending to show that the defendant had associated with criminals, “ a defendant charged with a criminal offense must be prosecuted according to the forms of law, and his guilt must be established, if at all, by legal evidence, no matter what his origin, his station in fife, or his associations may have been, and no matter what other offenses he may have committed,” and in another part of the opinion the court thus states the obvious purpose of offering such evidence (p. 565): That “ by surrounding the [252]*252defendant with an atmosphere of criminality, which might lead the jury to think that he would not be convicted amiss, whether innocent or guilty of the. particular crime charged.”
In my opinion we should not extend the well-settled limitations prescribed for the admissibility of evidence in criminal cases merely for the reason that it is easier for the public prosecutor to obtain convictions if such limitations were removed. In my opinion the letter was not admissible either to prove that the defendant had been guilty of another offense, or that he was an associate of criminals. Judge Werner, in People v. Molineux (168 N. Y. 264, 309), quoted with, approval the statement in Shaffner v. Commonwealth (72 Perm. St. 60) with reference to the reception in evidence of another criminal act alleged to have been committed by the defendant unless there was some connection with the crime charged in the indictment: “ Without this obvious connection it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burthen a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offenses charged against him, of which, if fairly tried, he might. acquit himself. From the nature and prejudicial character of such evidence, it is obvious that it should not be received, unless the mind plainly perceives that the commission of the one tends, by visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt.” Judge Werner’s opinion continues: “ This statement voices the keynote of the distinction.between the civil law and our own more merciful common law. Under the former there is no presumption of innocence. A mere official charge of crime puts the accused upon his defense. His history is an open book, every page of which may be read in evidence by the prosecution. Every crime or indiscretion of his life may be laid bare to feed the presumption of guilt. How different is our own common law, which is the product of all the wisdom and humanity of all the ages. Under it the [253]*253accused comes into a court of justice, panoplied in the presumption of innocence, which shields him until his guilt is established beyond a reasonable doubt. His general character can be thrown into the balance by no one but himself. The incidents of his life, not connected with the crime charged, are his sacred possession. He faces his accuser in the light of a distinct charge, with the assurance that no other will be, or can be, proved against him.” The admission of this letter in evidence in the present case was not an immaterial error, but was highly prejudicial and violated a fundamental rule of law.
The judge in his charge gave the worst construction possible to the letter as his opinion of the inference to be drawn from it, and then stated: “ Of course, there is the presumption that the man in prison was innocent.” He immediately deprived the defendant of the benefit of this presumption by saying, “ but innocent men do not seek to get witnesses by improper means or resort to perjury to get them out.” Then the trial judge submitted the issue as to the inference that might be drawn from the letter by charging, “ you, of course, are to say whether that claim of the People is supported or not. If you do not find that was the intent of the letter, the purport of the letter, then give it no weight. If it has been shown that he associated with other criminals you may also consider that on the question of his credibility.” This was manifestly erroneous. An issue was thus submitted to the jury that had no relevancy to the issue it was to determine. These errors in the admission of the letter in evidence and in the charge were highly prejudicial to the defendant.
The judgment should be reversed and a new trial granted.
Clarke, P. J., Laughlin and Merrell, JJ., concurred; Smith, J., dissented.