PONTIUS v. PEOPLE OF THE STATE OF NEW YORK

DANFORTH, J.

The case was left with the jury after a charge of unusual fullness, in which the rules of law were stated with great care and ability, and the question of fact fairly submitted to them for determination. It was not claimed by the learned counsel for the defendant that the evidence might not be so construed as to warrant a conviction, nor was any exception taken to the charge as made, or any request presented for further instructions. Nor is there, upon this appeal, any complaint made upon these points. It is, however, urged, first, that the indictment is void; and second, that errors were committed upon the trial in the reception of evidence, or in rulings in regard thereto.

First. The indictment. The questions presented were raised upon motion in arrest of judgment and formed no part of the proceedings of the trial. They are, therefore, not properly before us for review. ( People v. Gardiner, 6 Park. 143; People v. Allen, 43 N.Y. 28-32.) For the office of a writ of error is only to bring up exceptions taken at the trial. ( People v. Allen, 43 N.Y. 28-32; People v. Casey, 72 id. 393.) We have, however, examined the indictment. It contains ten counts, and the learned counsel for the appellant insists that the first eight counts are void for duplicity. Assuming that to be so, yet as the ninth and tenth are not open to that objection, and the verdict was general "that the defendant was guilty of the crime charged in the indictment," it may be sustained upon those counts unless some other fault is found in them. ( People v. Davis, 56 N.Y. 95.)

It is said "the ninth count instead of alleging that the intent was to `kill,' alleges it was to commit murder." It is apparent that murder cannot be perpetrated without killing, but one may kill without committing murder; as manslaughter is a killing "without a design to effect death." (2 R.S. 661, § 6.) The words in the statute, under which the indictment is framed, exclude the idea of manslaughter, for they describe an "assault and battery by means of a deadly weapon, or by such other means or force as was likely to produce death with the intent to kill." This is murder, and the terms used are, I think, synonymous. Here, at least, a single offense only is charged, and it is well set out. Nor is the tenth count open to any just exception. The offense therein charged is within the same statute. (2 R.S., § 36, art. 2, chap. 1, pt. 4, tit. 2.) And although described with greater detail reaches the same end, and neither of these counts are open to the objection which was considered in Dawson v. The People ( 25 N.Y. 399), the case relied on by the appellant's counsel. They each contain the substance of the offense, with the circumstances necessary to render it intelligible, and inform the defendant of the allegations against him. This is sufficient. ( People v. Phelps, 5 Wend. 9; People v. Warner, id. 272; Tuttle v. People, 36 N.Y. 436.)

Second. The exceptions taken on the trial. The district attorney called as a witness the defendant's brother, who being sworn, produced certain notes and a book of accounts belonging to the defendant, and proved that they came lawfully into his possession at the prisoner's house, and in his presence, shortly after the time stated in the indictment and the arrest. He then offered the notes and book of accounts in evidence, and no objection being made, they were received and read. The notes were as follows: One dated October 22, 1877, for $369.23, signed Anson Pontius, payable April 1, 1878, to the order of John G. Hoster (the complainant), and indorsed by him, and also by Andrew W. Pontius (the prisoner). The other two purported to be signed by the complainant — were dated December 19, 1878, payable to the order of Andrew W. Pontius; one was for $2,500, and to become due March 25, 1879; the other for $1,000, to mature October 1, 1879; also the prisoner's book of accounts or ledger. The district attorney then called the complainant and other witnesses, who gave testimony tending to show that the notes of December 19 were neither of them made by Hoster, but were forgeries. Entries from the book of accounts were also read to the jury for the same purpose. After the case for the prosecution was closed, the learned counsel for the prisoner "moved that the court direct the jury to disregard all the evidence tending to establish the forgery of the two notes of $2,500 and $1,000, respectively, and said as a part of the motion in behalf of the defendant, and for him, and in his name, that he admitted, and that it be so entered in the minutes of the trial, that if the jury should find as a fact that the defendant committed an assault and battery, it is, therefore, conclusively established against him that he intended to kill John G. Hoster. That there is no charge of forgery in this indictment, but simply an assault and battery with intent to kill." The court denied the motion, and the exception then taken is pressed with great earnestness upon our attention. The argument in its support rests upon the ground stated at the trial. The exception is, however, unavailing. The notes and book were offered and received in evidence without objection from the defendant's counsel. The evidence of the complainant to the effect that the notes were forgeries, that he neither made, nor authorized them to be made, had been given without objection, and the witness had been cross-examined in regard thereto by the learned counsel for the defendant at considerable length, and many matters were gone into by him, quite proper for the purpose of affecting the evidence given in regard to the notes, on direct examination, but wholly irrelevant for any other purpose. After such acquiescence and improvement of the opportunity afforded by it, it is too late to ask that the objectionable matter be stricken out. If any objection to it could fairly be made, it was as apparent when the evidence was offered as after it was in, and by not objecting to it when offered, the defendant took the risk of having the court, in its discretion, refuse to exclude it. For it is well settled that if a party does not object to evidence offered, it is discretionary with the trial court, after it is in, to grant or deny a motion to exclude it. In Marks v. King, decided by this court in February, 1876 ( 64 N.Y. 628), it was held that evidence admitted upon a trial by jury, either without an exception, or properly under objection, which for any reason should not be considered by the jury, is not necessarily to be stricken out on motion, but may be retained in the discretion of the court. And it was also held that the remedy of the party is to ask for instructions to the jury to disregard it. This decision was followed in Platner v. Platner ( 78 N.Y. 90), and the question now before us is directly within both cases. The attention of the trial court was not again called to the subject, nor was any request made for instructions in regard to it. It should not be thought, however, that but for this the exception would avail; on the contrary, a careful examination of the record leads to the conclusion that the evidence was properly received, and that the court did not err in retaining it. It was competent evidence for the purpose of showing the existence of a motive for the commission of the offense charged, and was none the less so because it also proved the commission of another crime. ( Pierson v. People, 79 N.Y. 424. )

It is said, however, on behalf of the appellant, that errors were committed by the trial court, in the reception of various items of evidence, upon the question of forgery.

First. The complainant was "permitted to state business relations he had with the defendant." But no objection was made to this, although the witness had proceeded at great length, in stating many transactions which had occurred between them. He testified to the sale of a horse, the receipt of defendant's note of $100 for it, that the first year the interest ($7) was paid in money. "I think he says I got $7 within a couple of years afterward, that makes two years' interest; then I indorsed $7 in 1874, there was a man with a paper begging for him; said his house was burned." Objected to, overruled, and exception. It is supposed that the part I have emphasized was objected to, and clearly it was neither relevant nor material, but the words had been spoken. If the learned counsel who objected had made a proper application to the court in regard thereto, the court would either have complied therewith, or the defendant had a valid exception. As it is, the exception is unavailing. It is obvious, however, that the witness was referring to the event only for the purpose of fixing time, for his next words are "I indorsed $7 on that note; I think that was in 1874," and doubtless this was so understood at the time, or some application of the kind above suggested, would have been made.

Second. The assault charged in the indictment was committed on Monday. On Saturday next before that day, a transaction was had between the witness Strong, and the defendant, in the course of which he gave the defendant a note indorsed by Hoster. He says, "I gave Pontius" (the defendant) "the note, and he stepped up to the light in the barn, and said something; I stepped up and asked him if there was any thing wrong in the note, he said no, only it was a queer way for Hoster to sign his name; he said the signature was made without taking the pen from the paper." The witness continued to testify at some length upon other subjects, and at the close of the direct examination the defendant's counsel moved to strike out the above words placed in italics. The court declined. The testimony was not irrelevant to the matter which, as we have seen, was in issue before the jury. Had Pontius committed the assault was the primary question; had he a motive for do-it, and so producing the death of Hoster, was incidentally before them. The jury might find some aid in framing a proper answer to this incidental but important question, if they found the notes above referred to were forgeries, that they were in possession of the defendant; and whether he was the perpetrator of the forgeries, or knew of them, and intended to profit by them, might appear from circumstances, and among others, any fact which disclosed that he had made himself acquainted with Hoster's signature so intimately that a slight peculiarity in it attracted his attention. The fact proven was not in itself strong; the jury might regard it as of no importance, but it was not irrelevant to that inquiry.

Third. It was not improper to permit the jury to examine the entries in the account book and the notes. They were already in evidence. The account book contained the handwriting of the defendant, while upon the notes was also, as was claimed, his handwriting, simulating the handwriting of Hoster. The practice which permitted the jury to compare the words and letters of these various writings was not a violation of the rule approved by this court in Van Wyck v. McIntosh ( 14 N.Y. 442), that whenever different instruments are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury, or the genuineness or simulation of the handwriting in question be inferred from such comparison. It does not appear that the learned trial court went further in this case. The index as well as the ledger was in evidence. It may be inferred that the index was part of the ledger; at any rate it appears from the record, not only "that the notes and book were received in evidence, and read to the jury, but that the district attorney read from the book, the index, Hoster's name, and page 108 in the book." To what extent, and how persistently the counsel for the people should be permitted to press these matters upon the jury, was a matter of discretion to be exercised by the trial judge. It does not appear to have been abused, or that more was done than the importance of the case required, or that the learned district attorney or his associate exceeded the line of duty.

Fourth. The defendant was examined at length in his own behalf, asserted the genuineness of the notes in question, and stated that they were made in part payment of the sum of upwards of $4,000 theretofore, as he said, "loaned," by him, "to the complainant." It was relevant to inquire upon cross-examination as to this money, where it was procured by him, at what place kept, from whence taken to make the loan; and it was also relevant and pertinent to give in evidence any fact which would tend to show the improbability of his narrative. His conduct in regard to necessary expenses, his pecuniary necessities, the borrowing of money by himself at or about the time when he claimed to have advanced the complainant money, would all bear upon the question. So would the fact that small debts were contracted by him and not paid when due, or after frequent request, indicate something in regard to his pecuniary ability, and might well be submitted to the consideration of the jury, with other circumstances. A man may indeed be willing to lend to his neighbor in time of need, and yet be unwilling to pay his debts in due season, although fully able to do both, but whether in any given case either one or both of these facts existed would have to be determined from a variety of circumstances, and their force could properly be estimated by the jury. The inquiry, therefore, in regard to the undertaker's bill, and other debts contracted by the defendant, and not paid, and his omission to pay them after frequent request, was properly allowed. It was all part of a legitimate cross-examination to which the defendant offered himself, and in a measure demanded, when as a witness he testified to the fact of a large loan of money. The case, therefore, is not within the criticism made by the late chief judge of this court in People v. Crapo ( 76 N.Y. 288), for the evidence which the questions objected to was likely to elicit had a direct bearing upon the issue which was presented by the statement upon his direct examination. It was clearly competent upon cross-examination to show a course of conduct on his part, and a condition of his affairs inconsistent with the fact to which he had testified, both for the purpose of discrediting his testimony, and as tending to disprove the truth of his statements. Our attention has also been directed to other exceptions taken upon the trial. They have been examined with the care due to a case of this importance, and a proper regard to the necessity of preserving the orderly conduct of a trial. We find no exception other than those above considered, which calls for special remark, and we find no error in the rulings of the learned trial court.

The conviction and the judgment of the General Term should be affirmed, and the case remanded to the Court of Sessions of Seneca county for sentence.

All concur.

Judgment accordingly.