Statement of case. counting and to compel the respondent, as surviving executor and trustee, to render an account according to law and that he be required to pay over such sum as shall be found due the petitioner upon such accounting. The citation was in accordance with the body of the petition, and the accounting to be had involved an examination of the proceedings of the executors from the death of the testator in 1872. So far as it went it would be a final adjudication in reference to the acts of the executors or trustees, and no final accounting could be had until all the real estate of which the testator was seized at the time of his death was finally disposed of. This might require a delay of many years, the effect of which would be to deprive the executors of any commissions during such period of time. Such a rule would be unreasonable and, we think, should not be upheld. No sound reason exists why a trustee should not be entitled to receive the commissions on the income of an estate which he annually pays over and accounts for, or why his compensation should be deferred until the final settlement of the At any rate they were chargeable with the amount in their hands at the end of each year and entitled to lawful com missions on the income. same. The other questions in the case are sufficiently considered in the opinion of the General Term and do not require discussion. The judgment of the General Term should be reversed so far as it modifies the decree of the first judge and that decree should be affirmed with costs against the plaintiff. All concur. Judgment accordingly. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES IRVING, Appellant. Upon the trial of an indictment for an assault, where the defendant as a witness in his own behalf had given material testimony, in conflict with that given on the part of the prosecution, held, that it was proper, within the discretion of the trial court, as bearing upon his credibility, 95 541 118 661 118 662 95 541 130 145 95 541 135 664 Opinion of the Court, per FINCH, J. to ask him upon cross-examination if he had not committed an assault upon another person. (Argued March 20, 1884; decided April 15, 1884) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 25, 1884, which affirmed a judgment, entered upon a verdict convicting the defendant of the crime of assault in the second degree. The facts appear sufficiently in the opinion. W. Bourke Cochran for appellant. It was error to compel the defendant to testify as to offenses committed by him not embodied in the indictment or in any way connected with the crime charged therein. (People v. Crapo, 76 N. Y. 291; People v. Gay, 7 id. 378; People v. Genung, 11 Wend. 19; Brown v. People, 72 N. Y. 571; Therasson v. People, 20 Hun, 68; Pontius v. People, 82 N. Y. 350; Ryan v. People, 79 id. 593; People, ex rel. v. Oyer & Terminer, 83 id. 460; Nolan v. City of B'klyn, 87 id. 63; Coleman v. People, 58 id. 562.) John Vincent for respondent. Under section 714 of the Penal Code the prosecution had a right to show that the accused had been convicted of other offenses. (Ryan v. People, 79 N. Y. 593.) No specific ground of objection having been alleged the objections taken by defendant's counsel were valueless. (Turner v. People, 33 Mich. 362, 382; Adams v. State, 25 Ohio, 584, 587.) Defendant could not have suffered by the question objected to, as his answers were harmless. (Nolan v. City of B'klyn, 87 N. Y. 63; Code of Crim. Pro., § 542.) FINCH, J. Upon the trial of an indictment for assault and battery, the defendant testified in his own behalf as a witness. According to the evidence of the complainant, and one witness who corroborated him, the assault was without provocation, and so brutal and canseless as to indicate in the perpetrator either Opinion of the Court, per FINCH, J. temporary intoxication, or unusual ugliness of temper. But according to the evidence of the accused and of three witnesses whom he called in his behalf, the complainant rushed at him with abusive language and a bottle in his hand, and the defendant merely laughed and walked out. And these witnesses further said that after this occurrence, the complainant and one McDermott had a fight, from which, inferentially, the complainant's injuries might have arisen. A question of fact of a very serious character was thus presented to the jury. There was falsehood upon one side or the other, and to reach the truth much regard was to be had to the respective credibility of the witnesses, and to their moral characters. The cross examination of the complainant recognized the situation, and a series of disparaging questions were put to him and answered; as to whether he had kept a gambling house; had been arrested for beating a woman; had bitten a man's thumb off; had shot a man named Miller; none of which were objected to. If the complainant had done these things; if he was the sort of man such a history described; it was due to the accused, whose liberty was imperiled by the testimony, that the jury should learn something of the character of the witness. On the cross-examination of the accused, similar disparaging questions were put, but to these, objections were interposed, which were overruled, and the exceptions taken are now before us. All the inquiries except two were answered in the negative. The prosecution was bound by these replies, and the series of questions thus answered cast no discredit upon the witness and did him no possible harm. The jury were bound by his denials, and the inquiries drew out no facts from which discreditable inferences could be drawn. The answers rendered the questions innoxious. But that cannot so easily be said of the remaining two inquiries. One of them, however, does not raise the question sought to be presented. The accused had just been asked if in 1870 he gouged both of the eyes out of a man named James and answered in the negative. He was then asked, "didn't you do the same thing with a man named Ferguson, in Opinion of the Court, per FINCH, J. 1881?" to which he answered, "I did not gouge his out." That answered the inquiry. Nothing further in respect to that occurrence was asked of the witness, and no added statement was required. What followed was his own voluntary declaration, which he need not have made, and which was not drawn from him by any question of the prosecutor. The witness added, "I struck him," and then went on to explain the circumstances, showing plainly that Ferguson was the aggressor, and the accused acted only on the defensive. But the inquiry whether the witness did not assault Smith Weed, a member of the legislature, and which was answered in the affirmative, although followed by an explanation, cannot be certainly deemed harmless, and is not, therefore, within the doctrine of Nolan v. Brooklyn City & N. R. R. Co. (87 N. Y. 68; 41 Am. Rep. 345). There the witness was asked not what he had done, but what the fire department had done; whether it had expelled him. We have held of late that mere charges or accusations, or even indictments, may not so be inquired into since they are consistent with innocence, and may exist without moral delinquency. (People v. Crapo, 76 N. Y. 288; 32 Am. Rep. 302; People v. Brown, 72 N. Y. 571; 28 Am. Rep. 183; Ryan v. People, 79 N. Y. 594.) An expulsion from the fire department might be summary or arbitrary and with little or no chance of a fair trial, or for causes involving no crime and not affecting the moral character; and so it turned out upon the answer given, which effectually barred any injurious inference. But this is not such a case. The witness was asked if he assaulted a fellow member of the legislature, and was expelled from that body. He denied the expulsion, but admitted the assault. He confessed, what unexplained, was the commission of a crime, and which, as was said in People v. Brown (supra), tended to impair the credit of the witness "by its tendency to establish a bad moral character.” In a closely balanced case it could hardly fail to affect his credibility. We have read carefully the explanation which the accused gave. It does not mend the matter much. At all events we cannot Opinion of the Court, per FINCH, J. say that taking question and answer and explanation together, the product was not an injury to the accused. That brings us to the inquiry whether the question asked was proper. We think it was so; within the discretion of the trial court; and its permission not an abuse of that discretion. The rule, as it stood before any restriction or limitation was put upon it, was stated in Real v. People (42 N. Y. 281), where the witness was such merely, and not the party. It was then said that for the purpose of discrediting his testimony the witness may be asked upon cross-examination as to specific acts, and the propriety and need of such a rule was argued at length. In People v. Crapo (supra), the limitation was applied that facts must be inquired about, and not mere accusations whose truth was not to be presumed, and which, therefore, did not tend to impair the moral character. That decision was made in 1879, and just one year later than the case of People v. Casey (72 N. Y. 393), which decides the precise question here involved, and in which the chief judge who wrote the opinion in the Crapo Case concurred. The prisoner stood indicted for assault with a dangerous weapon, and testified on his own behalf. On cross-examination the prosecutor was permitted to question him as to other altercations in which he had been engaged, and other assaults which he had committed, and it was held no Facts were asked for there, and not accusations or irresponsible charges, and so no occasion arose for the limitation which one year later was needed and applied. A little later, in Ryan v. People (supra), the rule was still conceded that questions as to specific facts which tend to discredit the witness, or impeach his moral character may be asked on cross-examination; but it was held that an indictment was a mere accusation and had no such legitimate tendency. In People v. Noelke (94 N. Y. 143, 144), the cases were reviewed, and we held on an indictment and trial for selling lottery tickets that the defendant, testifying in his own behalf, might be asked on cross-examination not only whether he had been convicted for sending lottery papers through the mail, but also whether for SICKELS VOL. L. 69 error. |