People v. . Bertlini

Cardozo, J.: •The defendant has been convicted of the crime of robbery. In January, 1915, three men, claiming to be inspectors of the gas- company, entered the house of John Bossi in Brooklyn. They seized and bound Mrs. Bossi, gagged her and tried to *113 chloroform her, and stole $8,700 in money and some jewelry from the safe. The People charge that one of the robbers is the defendant. Mrs. Bossi on the witness-stand identified him as the man who seized and bound her. A neighbor, Miss Helen Smith, identified him as one of three men whom she.had seen entering the Bossi house and later leaving it on the day and at the hour of the robbery. The defendant tried to prove an- alibi. The pivotal issue, therefore, was the identity of the robber. The defendant urges, and the Appellate Division has held, that there was an error in the admission of evidence. It is said that evidence was received in disregard of the rule laid down in People v. Jung Hing (212 N. Y. 393, 401, 31 N. Y. Crim. 449). We held in that case that where witnesses for the People have identified a defendant, they ought not to be permitted, as part of their direct examination, to state that they also identified him before they went upon the stand. We said that this was “ nothing more nor less than a bolstering of the present testimony of these witnesses by showing that on a prior occasion they said or did the same thing.” We did not fail, however, to point out that the course of the trial might open the door to evidence of an earlier identification. Where testimony identifying the accused is attacked as a recent fabrication or as the product of the suggestion or influence of others’ — in these and like eases, earlier identification may repel an adverse inference. In this case the defendant proved the earlier idntificat-ion himself, and after casting slur on its sincerity, he now complains that the People were allowed to prove the circumstances attending it. To make this clear, we must follow the course of the trial. The People called Mrs. Bossi as their witness. On her direct examination, she stated that the defendant was the robber. There was no attempt by the People to prove that she had ever identified him before. The defendant’s counsel cross-examined her; she was asked whether she had identified the defendant at *114 the Police Court, whether she had been brought there by one Malcolm, a detective, whether Miss Smith had gone with her, whether Malcolm had said that he was going to bring them to the robber, and whether he had pointed to the defendant, and said that there was the man. To these questions or most of them, the witness answered yes. It was thus the defendant himself who proved that long before the witness identified him on the stand, she had identified him in the Police Court. He proved it in an attempt to show that the identification was not spontaneous, but the product of suggestion. Another witness, a policeman, Erb, gave testimony for the People, and again the defendant went back to the events at the Police Court. Cross-examined by the defendant’s counsel, Erb stated a conversation in the prison with Malcolm, the detective. Malcolm told him, he said, that two women had positively identified the defendant in the court room. All this was brought out by the defendant himself, and allowed to stand without objection. ! It was after this evidence of an identification by the two women in the Police Court, and after this attempt to discredit it as the product of suggestion, that the People gave evidence tending to show that the identification was spontaneous. Malcolm, the detective, testified that he was standing with Mrs. Bossi and Miss Smith in the hall of the court house when the defendant and another man came out of the court room. He was asked to state what then happened in his presence. There was an objection and exception. His answer was that Miss Smith pulled his coat as soon as the defendant appeared, and said, “ there is one of the men,” and then Mrs. Bossi said the same thing. He asked them if they were sure, and they said they were. A motion to strike out the entire answer was denied. Later Miss Smith was called, and when asked to state what happened in the Police Court gave an account of it similar to *115 Malcolm’s. There was an objection to the question, but no exception. We think there was no error in any of these rulings. It was conceded at the Appellate Division that Malcolm’s testimony would have been competent if restricted to the statements made by Mrs. Bossi at the moment of identification. It was said, however, that there was error in permiting the witness to include the statements of Miss Smith, who had not yet taken the stand and whose testimony, therefore, had not yet been impeached. To this there is a twofold answer. In the first place, the conversation was single and entire. Three persons took part in it. The words spoken by one of them could not be dislocated from their setting, and proved in isolation. In the second place, the objection was too general. On its face the question was a proper one. It called for a statement of what happened. Mo point was made that the answer should be restricted to the words of one of the speakers. The only point was that no answer whatever should be allowed because the words were not spoken in the defendant’s hearing. At that time, indeed, it was not known whether the answer would show that Miss Smith had said anything. But even after the answer had been given, there was still no attempt by the defendant to discriminate between the admission of Mrs. Bossi’s words and the admission of Miss Smith’s. A general motion was made to strike out the entire answer, and again upon the ground that the defendant was not present. If the defendant wished to split the answer into two parts, one to be admitted a'&d the other rejected, he did not fairly bring his point to the notice of the court. What we have said of Malcolm’s testimony applies equally to Miss Smith’s. In her case there is the additional feature that the objection was not followed by an exception. But the exception, if taken, would have pointed to no error. Upon her examination as upon Malcolm’s, the question was a general one, calling for a statement of the happenings at the Police Court; *116 the answered disclosed a single conversation, which could not proprly have been dismembered; and the objection did not suggest that part of the conversation should be admitted and another part excluded. Our conclusion is that Mrs. Bossi’s identification of the defendant had been assailed as inspired by the police; that to meet this assault the People had the right to show that it was spontaneous ; and that they could do this, not only out of the mouth of Mrs. Bossi herself, but also from the lips of others. (Potter v. Browne, 197 N. Y. 288, 293; People v. Brooks, 131 N. Y. 321, 10 N. Y. Crim. 132.) The judgment of the Appellate Division should be reversed and the judgment of conviction affirmed. Willard Bartlett, Ch. J., Hiscock, Chase, Collin and Seabury, JJ., concur; Hogan, J., not voting. Judgment reversed, etc.