The People of the State of New York, Respondent, v. Alfred Collier, Appellant, Impleaded with John Carlson, Defendant

The People of the State of New York, Respondent, v. Alfred Collier, Appellant, Impleaded with John Carlson, Defendant. Second Department, November 18, 1910. Crime — evidence — robbery—corroborating witness — impeaching witness respecting matters developing on cross-examination. Upon the trial of one indicted for robbery the testimony of the complaining witness cannot be corroborated by putting in evidence his sworn statement made before the magistrate or by testimony as to his conversation with the prosecuting attorney subsequent to the alleged robbery, where the defendants do not claim that the motive for the witness’ testimony had changed and where there had been no change of circumstances which he could not have foreseen when he made the former statements. The admission of such corroborating evidence is reversible error. It is also reversible error to admit evidence to impeach witnesses respecting collateral matters developed on cross-examination where, although the answers were struck out, they may possibly have injured the defendants. Appeal by the defendant, Alfred Collier, from & judgment of the County Court of Kings'county, entered in the- office of the; clerk of said county on the 11th day of May, 1908, convicting the appellant-of the crime of robbery in the first degree,' and also from an order denying the said defendant’s • motion for a new trial. ■ • ' ■ Thomas Kelby [ James W.Pidgway with him on the brief], for . the appellant.' Peter P. Smith [ John P. Clarice,. District 'Attorney, with him on -the brief]j-for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: • Collier and Carlson were indicted for robbery in the first degree. The former, convicted, appeals. Collier, Carlson, each twenty years of age; Burchard, twenty-two, and O’Neil, thirty-one years old, participated in a transaction which was either a mere assault .■ upon O’Neil,, as the first two testified, or assault and robbery, as the last two testified. - The evidence shows that Collier and Carlson were degenerates, and that Burchard was .their associate. There is evidence that tends to show that O’Neil was their acquaintance and pursued tlieir^evil practices.' After the theater, and a visit to a restaurant, O’Neil went- to the junction of Flatbush avenue and Eastern parkway, where Burchard, áñ alleged stranger, joined him," and the two walked up Eastern parkway, meeting and psissing.Collier and parlson without recognition, and later passing into a vacant lot, where.one or both of them sat down, and thereupon Collier and Carlson came and the three assaulted and robbed him. Burchard ' testified, that he and his companions, acting upoh the assumption'. that O’Neil was a degenerate, arranged that Burchard should- lead him into" the lots and a compromising position, whereupon he should 'be robbed and be unable, to complain without exposing his own infamy. Carlson and Collier insist that the affair was but the repulse of O’Neil’s vile approaches'. But O’Neil did cry out, either from-the beating of the robbery, and Burchard and Carlson ' were arrested, and the. next morning O’Neil swore to a com. plaint against the two and. an “ unknown person,” whereupon ■ the matter was adjourned to July tenth, when, complainant failing to appear, the defendants were discharged. Thereafter the indictment was found and trial had. The evidence,, properly-received, was amply sufficient to sustain'the conviction, and salutary sentence followed. But it is most unfortunate that evidence was received that demands reversal of the judgment. The prosecuting officer offered O’Neil’s complaint before the magistrate for the purpose of showing O’Neil’s “ mental attitude” on June twenty-ninth, the morning following the offense, and Smith, assistant district attorney, was allowed to testify to a conversation with O’Neil on July twelfth, wherein he complained of robbery by Burchard and Carlson and a third man unknown, recited the history of his complaint before the magistrate and the reason-of his failure to appear. O’Neil was also allowed to give this conversation. The evidence was . ostensibly to show that O’Neil had, from the event forward, been consistent in his accusation, and had not fashioned falsely the charge to shield himself- from arrest or reproach. Respondent states the rule to be that “ where the witness is charged with giving testimony under the influence of some motive prompting him to give a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation arising from a change of circumstances could have been foreseen.” The defendant’s counsel did not urge that O’Neil’s motive for his testimony had changed, but that he was from the first moved by the motive of shielding his own base practice by accusing his associates, nor is there any change of circumstances that he could not have foreseen. If this complaining witness may on the trial corroborate himself by his sworn statement before the magistrate and his conversation with the prosecuting officer, the same method of fortifying testimony is. open to all witnesses similarly declaring themselves preparatory for trial. We find.nothing excusatory of this evidence and deprecate its presence in the record, as it interrupts the course of justice. We are not unmindful of the offer of the prosecution to introduce evidence to ■ impeach witnesses respecting collateral matters developed upon cross-examination. The court excluded or struck out the answers. The questions are not legally defensible, and their asking was possibly injurious to the defendants." No person is so morally depraved or so deserving of punishment as to merit conviction by means of forbidden evidence, or its attempted introduction. This court has the power and intention ■ to correct any hurtful results that may appear to have arisen therefrom. For the errors in the reception of evidence, as already noticed, the judgment should be reversed and a new trial ordered. Hirschberg, P. <L, Woodward, Bdrr and Rian, JJ., concurred. ' Judgment and order of the County Court 'of Kings county reversed and new trial ordered. • .