Blake v. People, 73 N. Y., 586. BLAKE v. PEOPLE. New York Court of Appeals, 1878. [Partly reported in 73 N. Y., 586.] While the rule is that a witness must depose only to such facts as are within his own knowledge, yet he is not required to speak with such certainty as excludes all idea of doubt in his own mind-even in giving evidence in chief. A witness may testify that he "does not think" one combatant in a struggle was choking the other. Also, that "to the best of his knowledge" one of the combatants was down and the other was helping him up. Also, in answer to a question whether the hold of the combatants was a friendly or unfriendly grasp, that "he did not know; he believed it was a friendly grasp." In a criminal prosecution, where the intention characterizes the act, such intention may be directly shown when a witness is available who is cognizant of it. After the accused has testified in his own behalf, regarding his acts, it is permissible to cross-examine him on the motives which influenced him in such act. Plaintiff was indicted for the murder of John McDonald by shooting. Upon the trial, the testimony showed that at half-past eight the prisoner and the deceased, both under the influence of liquor, were standing together under a gas light, when McDonald, the deceased, slipped on one knee and got up again; they then had hold of each other, Blake having one hand on McDonald's arm and the other hand free, when the prisoner put his free hand behind him, drew a revolver and fired, and McDonald fell. Asst. Dist. Atty. Rollins, for people. At the trial, the accused was found guilty. The Supreme Court at General Term affirmed the judgment. The Court of Appeals affirmed the judgment, after considering among others the following questions: A witness for the people, was asked on cross-examination by Blake v. People, 73 N. Y., 586. the prisoner's counsel, if he would swear that the deceased was not choking him. The witness replied: "I would not swear it; but don't think he was." The last part of the answer the counsel moved to strike out. The court refused. This was not error. Every witness must swear according to the impression on his mind, more or less strong. It has been been held in this state that a witness may testify to an impression (Snell v. Moses, 1 J. R., 96-103; see, however, Cutler . Carpenter, 1 Cow., 81). In the case in hand, the witness was conveying to the jury, his own conclusion, from the evidence of his senses directed to the acts of the prisoner and the deceased, on the evening of the shooting. When he said that he did not think that the deceased was choking the prisoner, he meant, and must have been so understood, that he recalled no circumstance of the encounter, which led his mind to such conclusion or belief. When he said that he would not swear that he was not choking him, he meant, and must have been so understood, that it was possibly so, though not observed by him. He was stating the fulness of his observation, and the strength of his recollection of what he observed (Lewis v. Freeman, 17 Maine, 260; Franklin v. City of Macon, 12 Geo., 257). True, it is a rule, that a witness must depose to such facts only as are within his own knowledge; but even in giving evidence in chief, he is not required to speak with such certainty as excludes all idea of doubt in his own mind. A witness may testify to his belief in the identity of a person, or of the handwriting of an individual, though he will not aver positively thereto (Rex v. Miller, 3 Wils., 427), and for false evidence so given he may be indicted for perjury (Rex v. Pedley, 1 Leach, 325; Reg. v. Schlesinger, 10 Q. B., 670; Folkes v. Chad, 3 Doug., 157-159). A witness was asked "Which was down; are you able to tell?" He answered, "The one that was shot was down, and the other was helping him up, to the best of my knowledge." The phrase, "to the best of my knowledge," it was moved to strike out. The refusal to do so was not error. It is referable to the same rules as the exception last considered. A witness was asked on cross-examination in behalf of the Blake v. People, 73 N. Y., 586. prisoner whether the hold of the prisoner and the deceased upon each other was a friendly or an unfriendly grasp. He said he did not know; he believed it was a friendly grasp. The same principle above noticed comes in play here again. It is also within the rule of the People v. Eastwood, 4 Kernan, 562, where a witness was asked if, in his judgment, a person was intoxicated, and the question was held correct. It was not error to permit the District Attorney to put questions to the prisoner, on cross-examination, calling for the motives which influenced him in certain of his actions. It was legitimate cross-examination. It did address itself to the operations of the mind rather than to bodily actions. But it was permissible to educe the purpose of the prisoner, in the bodily acts which he had just related, which purpose was material on the trial. The objection, that operations of the mind are called for by such questions, is not tenable. Operations of the mind include the intention which precedes and urges an act. That intention is to be shown, to characterize the act. It may be such, as to make the act innocent, or guilty. It is to be inferred, or directly shown. When no witness is available who can directly prove it, it must be inferred or not known; when a witness is available, who is cognizant of it, it is proper for him to say what it was. (Dillon v. Anderson, 231, 236 and cases cited.) The questions put by the court to the prisoner when on the stand as a witness, are of the same character. As questions, in the nature of a cross-examination, they are not erroneous. As to the propriety of the court addressing them to the prisoner, or other witness, we have nothing to say, for that depends very much upon the circumstances of each case, and the exigencies of each trial. NOTE: Upon a trial for wife murder, a witness who had heard cries proceeding from the prisoner's house in the night preceding the wife's death, was asked what those cries indicated, whether the person was crying for joy, or what. This was objected to, but objection overruled, and the witness was permitted to answer that it seemed to him she cried for help; that he did not think she did it for pleasure. Held, error; GROVER, J., saying, the question called for the conjecture of the witness as to the cause of the cries and not for a description of them; the former was incompetent, though the latter was not. Notes of Cases on Another's Feelings, etc. It was for the witness to describe the cries, so as to give the jury as correct an idea of them as possible, and then for the latter to draw such inferences therefrom as in their judgment were warranted. Messner v. People, 45 N. Y., 1. In Melick v. State, 24 Southwest. Rep., 417 (Appeal to the Court of Criminal Appeals of Texas, Dec. 2d, 1893), on an indictment for murder at the trial court, one of the witnesses testified that he heard the voice of a woman at appellant's house on the evening before the dead body of deceased was found next morning. Counsel for the state asked witness, "Was the sound you heard a sound of distress?" Appellant objected because the question was leading and suggestive, whereupon the presiding judge prepared proper questions, in writing, came down from the bench to where the interpreter was sitting, handed him the paper upon which the questions were written, and told him to ask the questions as written. Appellant objected to the questions because they were, also, leading and suggested the answers. The questions were: "Did the noise sound as if the person was in joy, or distress? Was it as if she was laughing, or crying, or if she was suffering pain, or enjoying pleasure. Or was she making a mere idle noise, as if nothing was the matter with her?" Witness answered, "It sounded like a woman's voice, crying." Held, the questions were neither leading, nor suggestive of the answers. NOTES OF RECENT CASES ON ANOTHER'S FEELING, MANNER, CONDUCT, INTENT, KNOWLEDGE. Alabama: Poe v. State, 87 Ala., 65; s. c. 6 Southern Rep., 378 (upon a murder trial, it is not error to exclude testimony that defendant was afraid to go out after dark upon his own premises because of the threats of deceased). Lewis v. State, 1892, 11 id., 259 (it is not error to exclude testimony that the accused seemed afraid, when offered to rebut the inference of guilt raised by his flight). Montgomery v. Crosthwait, 90 Ala., 553; s. c. 8 Southern Rep., 498 (testimony that a party examined a note throughly held admissible to show the party's knowledge of the manner the note was signed). Reeves v. State, 1892, 11 id., 296 (upon the trial of an indictment charging a person with disturbing women at a public assembly, it is not error to permit a witness to testify that the accused was talking mad and that he and another looked like they were trying to fight). Baldwin v. Walker, 91 Ala., 428; s. c. 10 Southern Rep., 391 (in an action on attachment bond, it is error to permit a witness to testify that he knew the plaintiff was not about to leave the state). Alabama, etc. R. Co. v. Tapia, 1891, 10 id., 236 (in a passenger's action for ejectment from a train, it is not error to exclude testimony that the conductor seemed to Notes of Cases on Another's Feeling, etc. be anxious to get the matter settled as to whether the plaintiff paid his fare, and in the witness's opinion the conductor acted as well as a man could do in such a case). Bolling v. State, 1893, 12 id., 782 (it is error to permit an officer, who arrested one charged with larceny, to testify that the accused at the time of her arrest thrust her hand in a basket and under bundles "as though she was trying to conceal something"). Arkansas: Williams v. State, 47 Ark., 230; s. c. 16 Southwest. Rep., 816 (a witness may state a conclusion of fact drawn from the appearance and acts of another which are difficult to describe). California: People v. Wright, 93 Cal., 564; s. c. 29 Pacific Rep., 240 (upon a trial for mayhem, it is not error to exclude a question as to whether the interference of the prosecutor was such as would carry the information to the defendant that he was interfering only as a friend or would likely mislead the defendant as to his object). Florida: Hodge v. State, 26 Fla., 11; s. c. 7 Southern Rep., 593 (it is proper to exclude questions calling for a witness's conclusion or understanding of the conduct and intent of a person charged with a crime). Georgia: Gardner v. State, Ga., 1893, 17 Southeast. Rep., 86 (a witness cannot give his opinion, as to what deceased intended to do with a pistol for the possession of which he was struggling with a third person when defendant shot him). Illinois: Walker v. People, Ill., 1890, 24 Northeast. Rep., 424 (where the defense of one accused of murder is selfdefense, it is proper to exclude testimony as to what the witness thought deceased was going to do when he reached for a revolver in his hip pocket). Iowa: State v. Brown, 1893, 53 Northwest. Rep., 92 (on a trial for seduction, prosecutrix's testimony that defendant kept company with her is not a statement of a mere conclusion, but that he treated her very affectionately is). Massachusetts: Brown v. Massachusetts Title Ins. Co., 151 Mass., 127; s. c. 23 Northeast. Rep., 733 (in an action for libel against a corporation, corporate officers may testify that they did not, and to their knowledge no officer or employee of the corporation had any hatred, illwill, or malicious intent, towards plaintiff in publishing the libel). Minnesota: State v. Holden, 42 Minn., 350; 44 Northwest. Rep., 123 (it is not prejudicial error to permit a witness to testify that the statements of another were made voluntarily where it appears that such testimony, when regarded with the other evidence, merely imported the fact that the statements were made without any inducements or threats from the person to whom they were made). Missouri: State v. Buechler, 103 Mo., 203; s. c. 15 Southwest. Rep., 331 (a witness may give his impression or opinion as to the appearance or expression of countenance of one accused of murder just after the affray). North Carolina: State v. Edwards, N. C., 1893, 17 Southeast. Rep., 521 (upon a trial for murder it is not error to permit a witness to testify whether defendant appeared mad or to be in fun when he approached deceased and declared his intention of killing him). Pennsylvania: Barre v. Reading City, etc. Ry. Co., 155 Pa. St., 170; s. c. 26 Atlantic Rep., 99 (in an action for injuries while getting on a street car, a companion of the injured person cannot testify as to what she thought the driver was going to do). South Carolina: State v. James, 31 |