Kiley, J.:
It is conceded in this case that the defendant in this action, on the 10th day of July, 1918, killed Joseph Marzio by shooting him; the bullet entered the head over the left eye. Defendant fled the jurisdiction of the court. The crime was committed at Malden, Ulster county, N. Y. On the 11th day of May, 1921, he was indicted by a grand jury of that county, charging him with manslaughter in the first degree. Upon the trial under that indictment he was convicted as charged and sentenced to not less [107]*107than six nor more than twelve years in State prison. This appeal is from such judgment of conviction. The defendant admitted the killing but urged that the homicide was justifiable, that he shot in self-defense. For some time before the shooting defendant and his family and deceased and his family lived in a double house on property known as the Staples brickyard near Malden, Ulster county; both families had small children; a lady in the neighborhood gave to the defendant’s boy a box of trinkets, among which was a small chain or piece of one. Marzio’s wife claimed that the chain was one they brought from Italy and that defendant’s son had stolen it. Defendant offered to wager and did wager a dollar that the woman in the neighborhood gave the chain to his boy. They, defendant and Marzio, went to the woman’s house and asked her and she confirmed defendant’s claim. Marzio offered to pay the dollar but defendant refused to accept and Marzio said he would buy the beer, he started toward the hotel in the neighborhood, went there, defendant followed and both bought drinks. Defendant started toward home, Marzio followed, overtaking defendant some little distance toward their home along the State road. They had an altercation, called each other’s wives and each other liars; defendant swears that Marzio came toward him fumbling at his hip pocket and he, defendant, took the revolver from his side coat pocket, where he was in the habit of carrying it; that Marzio was twelve or fourteen feet from him and facing him and coming toward him; that he told him to go home; Marzio stopped, turned away, the defendant standing still and still presenting his gun. Marzio turned again, came toward the defendant with raised hand or hands, and when within eight or nine feet of him the defendant fired striking Marzio as aforesaid over the left eye, piercing the brain. Marzio fell to the ground, was alive but unconscious when approached a few minutes after by one living in the neighborhood, who found a razor clasped in his right hand. He was taken to a hospital and died that night from his injuries. Defendant fled, going to New Jersey and stayed for over two years, when he had his wife procure an attorney for his defense and then returned and gave himself up, surrendered to the authorities of Ulster county. His excuse for running away given under oath, he went upon the stand in his own defense, was that he was afraid of the dead man’s friends. He could not tell who they were, but claimed to be impelled to run with that idea. Both parties were Italians. The evidence in full, as only briefly reviewed here, would support a verdict of acquittal. The jury found otherwise. Were the jurors influenced in reaching that verdict by certain evidence and the attitude of the court and district attorney with reference thereto, [108]*108claimed to be error upon this appeal? It is as follows: “ District Attorney [cross-examining the defendant]: Q. Did you while living at Newburgh, before you went to Mechanicsville, draw a gun and shoot at John Delaya? Mr. Canfield: Objected to as incompetent, improper and immaterial. The Court: Overruled. By the Court: Answer yes or no whether you shot at this other man? A. Yes. By District Attorney Traver: Q. Did you hit him? A. I want to tell you. Q. Did you shoot him? A. Yes; I want to tell you the truth why I shot. Q. When you shot, immediately after that, did you go away from home and go to Mechanicsville? A. I didn’t run away I move up there. Q. Did you go to Mechanicsville? When I shoot I left the man; two or three shots. Q. When you shot you left? A. I no can hurt him, I just scared him, no shells in gun, just fire to scare. Q. Wasn’t the reason why you shot at him, because you thought he was too friendly with your wife? A. He was talking to somebody else. Q. Wasn’t that the reason you shot at him, or wasn’t it; was the reason why you shot at John Delaya because he had been trying to do something to your wife? A. He was, before that, somebody told me all the time, and I want to scare him. Q. After you shot at him where did you go? A. Mechanicsville. Q. You went up there alone? A. I went alone after a week or so— Q. After a while your family come? Mr. Canfield: He is entitled to finish his answer. District Attorney: I am not obliged to take everything the witness says in answer to my question. The Court: Go a head. Q. After you shot at this man you went to Mechanics-ville? A. I go to Mechanicsville. Q. Right away? A. Sure, right away.” After, considerable questioning of the same kind without any objection from defendant’s counsel, ■ the following took place: “ Q. You don’t go back to Newburgh? A. No. Q. You never have been back there since? A. I don’t remember. Q. Have you been back, or, haven’t you, or, don’t you know? A. Didn’t go to Newburgh any more after I left.” I think it may be held that all of this evidence harks back to the objection made and above quoted, and that it is all tainted with the same vice, if vice there be. The question presented is this, was it competent to give evidence of a separate and distinct crime committed by the defendant, other than that charged in the indictment? The New-burgh incident dates back many years before the crime and time alleged in the indictment. In People v. Molineux (168 N. Y. 293), Judge Webneb, after discussing the question of permitting evidence of crimes other than that alleged in the indictment, says: “ ‘ Logically, the commission of an independent offense is not proof in itself of the commission of another crime. Yet it cannot be [109]*109said to be without influence on the mind, for certainly if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged; it, therefore, predisposes the mind of the juror to believe the prisoner guilty.’ ” This is quoted by the judge from Shaffner v. Commonwealth (72 Penn. St. 60) and he then proceeds as follows: “ The exceptions to the rule cannot be stated with categorical precision. Generally speaking,, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” (Whart. Grim. Ev. [9th ed.] § 48; TJnderh. Ev. § 58; Abb. Tr. Br. § 598.) I think we may go one step farther and hold that when the defendant in a criminal action goes upon the stand in his own behalf, he may be interrogated upon cross-examination as to any crimes he has theretofore committed, but for the sole purpose of affecting his credibility as a witness, the same as a defendant in any other action. (People v. Johnston, 186 App. Div. 248, and cases cited.) Judge Miller in People v. Pettanza (207 N. Y. 560) shows the vice of bolstering up a case, not strong primarily, with evidence of this.kind.
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Kiley, J.:
It is conceded in this case that the defendant in this action, on the 10th day of July, 1918, killed Joseph Marzio by shooting him; the bullet entered the head over the left eye. Defendant fled the jurisdiction of the court. The crime was committed at Malden, Ulster county, N. Y. On the 11th day of May, 1921, he was indicted by a grand jury of that county, charging him with manslaughter in the first degree. Upon the trial under that indictment he was convicted as charged and sentenced to not less [107]*107than six nor more than twelve years in State prison. This appeal is from such judgment of conviction. The defendant admitted the killing but urged that the homicide was justifiable, that he shot in self-defense. For some time before the shooting defendant and his family and deceased and his family lived in a double house on property known as the Staples brickyard near Malden, Ulster county; both families had small children; a lady in the neighborhood gave to the defendant’s boy a box of trinkets, among which was a small chain or piece of one. Marzio’s wife claimed that the chain was one they brought from Italy and that defendant’s son had stolen it. Defendant offered to wager and did wager a dollar that the woman in the neighborhood gave the chain to his boy. They, defendant and Marzio, went to the woman’s house and asked her and she confirmed defendant’s claim. Marzio offered to pay the dollar but defendant refused to accept and Marzio said he would buy the beer, he started toward the hotel in the neighborhood, went there, defendant followed and both bought drinks. Defendant started toward home, Marzio followed, overtaking defendant some little distance toward their home along the State road. They had an altercation, called each other’s wives and each other liars; defendant swears that Marzio came toward him fumbling at his hip pocket and he, defendant, took the revolver from his side coat pocket, where he was in the habit of carrying it; that Marzio was twelve or fourteen feet from him and facing him and coming toward him; that he told him to go home; Marzio stopped, turned away, the defendant standing still and still presenting his gun. Marzio turned again, came toward the defendant with raised hand or hands, and when within eight or nine feet of him the defendant fired striking Marzio as aforesaid over the left eye, piercing the brain. Marzio fell to the ground, was alive but unconscious when approached a few minutes after by one living in the neighborhood, who found a razor clasped in his right hand. He was taken to a hospital and died that night from his injuries. Defendant fled, going to New Jersey and stayed for over two years, when he had his wife procure an attorney for his defense and then returned and gave himself up, surrendered to the authorities of Ulster county. His excuse for running away given under oath, he went upon the stand in his own defense, was that he was afraid of the dead man’s friends. He could not tell who they were, but claimed to be impelled to run with that idea. Both parties were Italians. The evidence in full, as only briefly reviewed here, would support a verdict of acquittal. The jury found otherwise. Were the jurors influenced in reaching that verdict by certain evidence and the attitude of the court and district attorney with reference thereto, [108]*108claimed to be error upon this appeal? It is as follows: “ District Attorney [cross-examining the defendant]: Q. Did you while living at Newburgh, before you went to Mechanicsville, draw a gun and shoot at John Delaya? Mr. Canfield: Objected to as incompetent, improper and immaterial. The Court: Overruled. By the Court: Answer yes or no whether you shot at this other man? A. Yes. By District Attorney Traver: Q. Did you hit him? A. I want to tell you. Q. Did you shoot him? A. Yes; I want to tell you the truth why I shot. Q. When you shot, immediately after that, did you go away from home and go to Mechanicsville? A. I didn’t run away I move up there. Q. Did you go to Mechanicsville? When I shoot I left the man; two or three shots. Q. When you shot you left? A. I no can hurt him, I just scared him, no shells in gun, just fire to scare. Q. Wasn’t the reason why you shot at him, because you thought he was too friendly with your wife? A. He was talking to somebody else. Q. Wasn’t that the reason you shot at him, or wasn’t it; was the reason why you shot at John Delaya because he had been trying to do something to your wife? A. He was, before that, somebody told me all the time, and I want to scare him. Q. After you shot at him where did you go? A. Mechanicsville. Q. You went up there alone? A. I went alone after a week or so— Q. After a while your family come? Mr. Canfield: He is entitled to finish his answer. District Attorney: I am not obliged to take everything the witness says in answer to my question. The Court: Go a head. Q. After you shot at this man you went to Mechanics-ville? A. I go to Mechanicsville. Q. Right away? A. Sure, right away.” After, considerable questioning of the same kind without any objection from defendant’s counsel, ■ the following took place: “ Q. You don’t go back to Newburgh? A. No. Q. You never have been back there since? A. I don’t remember. Q. Have you been back, or, haven’t you, or, don’t you know? A. Didn’t go to Newburgh any more after I left.” I think it may be held that all of this evidence harks back to the objection made and above quoted, and that it is all tainted with the same vice, if vice there be. The question presented is this, was it competent to give evidence of a separate and distinct crime committed by the defendant, other than that charged in the indictment? The New-burgh incident dates back many years before the crime and time alleged in the indictment. In People v. Molineux (168 N. Y. 293), Judge Webneb, after discussing the question of permitting evidence of crimes other than that alleged in the indictment, says: “ ‘ Logically, the commission of an independent offense is not proof in itself of the commission of another crime. Yet it cannot be [109]*109said to be without influence on the mind, for certainly if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged; it, therefore, predisposes the mind of the juror to believe the prisoner guilty.’ ” This is quoted by the judge from Shaffner v. Commonwealth (72 Penn. St. 60) and he then proceeds as follows: “ The exceptions to the rule cannot be stated with categorical precision. Generally speaking,, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” (Whart. Grim. Ev. [9th ed.] § 48; TJnderh. Ev. § 58; Abb. Tr. Br. § 598.) I think we may go one step farther and hold that when the defendant in a criminal action goes upon the stand in his own behalf, he may be interrogated upon cross-examination as to any crimes he has theretofore committed, but for the sole purpose of affecting his credibility as a witness, the same as a defendant in any other action. (People v. Johnston, 186 App. Div. 248, and cases cited.) Judge Miller in People v. Pettanza (207 N. Y. 560) shows the vice of bolstering up a case, not strong primarily, with evidence of this.kind. Assuming the most favorable attitude we can toward the evidence criticized, viz., that it might have been offered to affect his credibility, the jury is nowhere advised of that fact. The district attorney did not so state when he offered it, and the judge did not refer to it in his charge. The argument of the district attorney when he presented the People’s case to the jury is reported in the record in full. He did not tell the jury that the evidence of the Newburgh affair was given to them to affect the defendant’s credibility. On the contrary, his argument in that regard was to the effect that, having committed that crime and admitted it, it was evidence that he committed the crime with which he was charged. He approached the subject as follows: “ The story told by the defendant reminds one of a very old proverb, to all familiar: ‘ he who fights and runs away, may live to fight another day,’ and I am going to paraphrase that, and say, defendant’s story reminds me of what I am going to paraphrase in this case, as ‘ he who shoots and runs away may live to shoot another day.’ ” This is followed with observations on this line of testimony justifying the assertion that it was not introduced to affect the credibility of the defendant but in support of the crime charged in the indictment. The closing paragraph of the discussion upon that subject is significant in [110]*110denoting its purpose: “ I say, he shot and ran away that time, and the evidence in this case, from his own lips, warrants that statement, and having shot and run away the first time, he imagines, perhaps, he can pursue the same tactics the second time, and he shot and ran away the second time.” The evidence and the argument of the district attorney was to the effect that the defendant was criminally inclined; that shooting was his rule rather than the exception, and that it was potent evidence of his probable guilt of the specific crime charged against him. This case was too close to hold that such evidence did not influence the .jury. A very good foundation existed and was laid for an acquittal on the plea of self-defense. The defendant’s reputation came through the ordeal much better than that of Marzio. Defendant was forty-four years old, the other man twenty-six. Defendant left the hotel for his home alone and ahead of the deceased. He followed and started the quarrel. Marzio had been informed by an uninterested party that his claim to the chain was wrong; he was irritated and made the first advance; the defendant and one other disinterested witness swore his hand was up before he was shot. Defendant swore he could not tell if he had anything in his hand; but he knew the favorite weapon of the Sons of Italy. He warned him to go home; Marzio hesitated, turned, but returned to the attack, his hand still up, the older man stood still covering his assailant with his gun, and still telling him to desist. He came on and defendant shot him, and when he fell a razor was elapsed in his right hand. It is urged that the defendant should have avoided the shooting, but in the light of later events it might have been dangerous; Marzio was the younger man, with a razor in his hand, and defendant’s back turned in an effort to escape, the race might well have been won by the younger man. The jury could well have found that the defendant had the right to refuse to take the chance, and that he adopted the wiser course. The trial was not fair, the defendant did not have a fair chance, the least of which chance he should have had would have been for the court in his charge to the jury to have said that the evidence of the Newburgh incident was not received for the purpose of proving the guilt of the defendant, but to let them say whether it affected his credibility.
The judgment should be reversed and a new trial granted.
All concur, except Hinman, J., dissenting, with an opinion.