# People v. Russell > Appellate Division of the Supreme Court of the State of New York · June 10, 1921 · 197 A.D. 239 URL: https://www.frixlaw.com/law-library/cases/5262021 ## Case - **Full name:** The People of the State of New York v. Michael Russell, Impleaded with Michael Cahill - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** June 10, 1921 - **Citations:** 197 A.D. 239; 39 N.Y. Crim. 247; 188 N.Y.S. 872; 1921 N.Y. App. Div. LEXIS 7442 - **Precedential status:** Published - **Opinion:** Dissent by Putnam - **Judges:** Putnam, Rich - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5262021 ## Opinion text Putnam, J. (dissenting): The feature of this case is that a policeman of three years’ service has been convicted of robbing a sailor. When appel *245 lant was apprehended he was promptly locked up, and his fellow-officers, including the precinct captain, are witnesses for the prosecution.- Such facts suggest a personal animus, which the defense has emphasized, and is one of the considerations moving the majority for reversal. This precise circumstance, that suggests contrivance on the part of the people’s witnesses, however, justifies what would otherwise be a technical error in admitting evidence. Hostility from the other officials may give a coloring of testimony, and even lead one to ask if the narrative of the seaman, Neis Anderson, was not largely a product of suggestion leading him to make out a case against an unpopular fellow-officer. When such discredit is attempted, it is right to show the consistency of the people’s witness, by earlier statements before he had become subject to any of these influences. (People v. Bertlini, 218 N. Y. 584 .) In view of this acknowledged principle, I cannot regard it as error to receive evidence of Anderson’s original identification, although at a stage of the trial before Anderson had been sought to be discredited. In the Jung Hing case the court recognized the exception where the witness is, “ under the imputation that his story is a recent fabrication.” ( 212 N. Y. 402 .) The propriety of this ruling must be tested by the trial as a whole, not by an accidental order of proof which is in the discretion of the trial court. (People v. Barnes, 202 N. Y. 77 .) Hence in my view there was no error in receiving testimony to the original identification. This entire case leaves no satisfactory ground to substitute the findings of this court, which reviews upon a printed record, for that of the jurors who saw and heard the witnesses. The testimony of appellant’s supporting witness Cahill, in my view, was most damaging; since the narrative of his aimless saunterings with Russell at three A. m. in a November rain storm strains credulity. The issue of identification is one of fact, and no adequate ground is shown to reject the jury’s finding. (People v. Cohen, 223 N. Y. 406, 423 .) Allowing Police Sergeant Rourke to testify to the declarations of Anderson at four a. m. that morning, when first brought to the police station, is claimed to be error. No identification had then taken place. Its importance was that at the first moment Anderson had made a complaint. He stated that he *246 had been- robbed and described the robber. The objection then raised was that defendant was not present when this complaint was received — an objection that misunderstood the grounds for its admission. It is not necessary to fall back on the rule that in rape, offenses of larceny and such crimes, the fact of an early and prompt complaint by the victim is relevant. (Wigmore Ev. § 1142; Stephens Dig. Ev. art. 8.) A Finnish seaman telling of his robbery by an officer in uniform may properly fall under the exception, by which a prior consistent statement is “ receivable to repel the suggestion of recent contrivance, upon a general principle applicable to all witnesses.” (Wigmore, § 1762.) These are not objective facts, but merely declarations manifesting a state and attitude of mind, and are, therefore, exceptions to the hearsay rule. (1 Greenl. Ev. § 123.) Hence the objection made that defendant was not present was properly overruled. As a whole, the trial was fair to appellant, although his counsel sought to call Anderson a Bolshevist. With no good exception and nowhere any substantial error, I cannot vote to reverse, much as I share in the natural reluctance to condemn one of the city police. Jaycox, J., concurs. Judgment of conviction reversed upon reargument, and new trial granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5262021. Public record. Not legal advice.