People v. . Trimarchi

McLaughlin, J.: The defendant was convicted of the crime of burglary, third degree, second offense, after a prior conviction of a felony, for which he was sentenced to be imprisoned in a state’s prison for the term of seven years and six months. He appealed to the Appellate Division, fourth department, from the judgment of conviction and also from an order denying a motion for a new-trial on the ground of newly-discovered evidence. The Appellate Division unanimously affirmed the order denying the motion for a new trial, from which the defendant appeals, and unanimously reversed the judgment of conviction and ordered a new trial, from which the People appeal. The reversal of the-judgment of conviction was, according to the order, “ upon questions of law only, the facts having been examined and no error found therein.” The error of law upon which the reversal is predicated is stated in the order as follows: “ That the defendant was not given the full benefit of the rule respecting the evidence of good character and that the exceptions to rulings of the trial court in charging the jury upon that question are well taken.” At the trial several witnesses were sworn whose testimony it *245 is claimed tended to establish the good character of the defendant and at the conclusion of the main charge the trial court was requested to charge: “ That evidence of good character is sufficient to raise a question of reasonable doubt.” In response to this request the court stated: “ I will charge that the question of good character you are to consider in arriving at your verdict and if, after considering it, it is sufficient to raise a reasonable doubt, you should not convict.” Exception was taken by defendant’s counsel to the refusal to charge as requested, and also to the charge as made. The request was improper in form. Evidence of good character is not, of itself, sufficient to raise a reasonable doubt. Such evidence, in order to raise a reasonable doubt, must be believed by the jury. It then may, when considered with all the other evidence in the case, be sufficient to raise a reasonable doubt as to his guilt. This is upon the theory that good character may create a doubt against positive evidence, but this doubt against positive evidence is created only when in the judgment of the jury the character is so good as to raise a doubt as to the truthfulness of the positive evidence tending to establish guilt. In such case the defendant must be given the benefit of the doubt. This is the rule laid down in People v. Hughson (154 N. Y. 153) where the charge as made was substantially like the one here complained of. The trial court, I think, correctly stated the rule of law to be applied by the jury. (See also, People v. Gilbert, 199 N. Y. 10.) It is also claimed the court erred in refusing to charge the following request: “ That the evidence in this case must be, in order to convict, of such a character as to exclude every hypothesis except this defendant’s guilt,” to which the court responded, “ I refuse to charge that. I will say that you must he satisfied beyond a reasonable doubt,” to which exception was .taken by defendant’s counsel. This request was not proper in form. The rule is that all the evidence, when considered by the jury, must, beyond a *246 reasonable doubt, exclude or remove every other reasonable hypothesis than that of the defendant’s guilt. (People v. Smith, 162 N. Y. 520; Ruloff v. People, 18 N. Y. 179.) The evidence of facts and circumstances, in order to justify a conviction, must all be consistent with and point not only to the guilt of defendant, but they must be inconsistent with his innocence. (People v. Fitzgerald, 156 N. Y. 253.) The trial court, in the main charge, had correctly stated the rule and told the jury several times that if, after a consideration of all the evidence in the case, there, remained a reasonable doubt as to the guilt of the defendant, then he was entitled to an acquittal; that the burden of proof was upon the People; that the defendant was entitled to the presumption of innocence until proven guilty; and that the proof must satisfy them beyond a reasonable doubt as to defendant’s guilt of the crime charged, otherwise there should be a verdict in his favor. When the whole charge is considered, I am clearly satisfied the defendant’s rights were fully protected and the jury could not have been misled by the instructions given. Other errors are alleged, but after a careful consideration of them, they do not seem to be of sufficient importance to be here considered. The defendant had a fair trial, the evidence was such as justified the jury in finding him guilty, and the record fails to disclose any error which would justify this court in interfering with the verdict. The order of the Appellate Division reversing the judgment of conviction and ordering a new trial must be reversed, and the judgment of conviction affirmed. The appeal from the order denying the motion for a new trial was unanimously affirmed by the Appellate Division, no leave given to appeal to this court, or question certified. This court, therefore, has no jurisdiction to review the order sought to be appealed from. (Code of Civil Procedure, sec. 191, *247 subd. 3.) The appeal from this order, therefore, must be dismissed. Order of the Appellate Division reversing the judgment of conviction and granting a new trial should be reversed and the judgment of conviction affirmed. The appeal from the order denying motion for a new trial on the ground of newly-discovered evidence is dismissed. Hiscock, Ch. J., Chase, Hogan, Cardozo, Crane and Andrews, JJ., concur. Ordered accordingly.