Charles Moore, Plaintiff in Error, v. The People, Defendants in Error

Charles Moore, Plaintiff in Error, v. The People, Defendants in Error, (Submitted June 10, 1873 ; decided September 23, 1873.) Plaintiff in error was convicted upon an indictment for grand larceny. The 1 case was one known as “ emigrant swindling.” The main question litigated upon the trial was the identity of the prisoner with the person by whom the offence was committed, the testimony on behalf of the prisoner tending to establish an alibi. Upon cross-examination of one of his witnesses he was asked if he had called to see Mr. Wallack, one of the commissioners of emigration, in regard to the case. He answered that he saw Mr. Wallack. The latter was subsequently called by the prosecution and permitted to testify under objection, to declarations of said witness that he was sent by the prisoner’s relatives to request him to allow the complainant to take the money he had lost. This testimony was offered generally, not simply for the purpose of showing that the witness was a friend of the prisoner, and thus of affecting his credibility.—Held, error, and that the evidence was prejudicial to the prisoner, as tending to connect him by hearsay with the offence charged. A. Oakey Hall for the plaintiff in error. Benj. K. Phelps, district attorney, for defendants in error. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for reversal and new trial. All concur except Grover, J., not voting. Judgment reversed.