author: Dye, J. Burke, J. (dissenting).

text:
    In the Matter of the Construction of the Will of Benjamin S. Welles, Deceased. Marian K. Frelinghuysen et al., Appellants; William M. Cruikshank et al., as Trustees under the Will of Benjamin S. Welles, Deceased, et al., Respondents.
    Argued January 19, 1961;
    decided March 23, 1961.

      Thomas B. Gilchrist, Jr., and Thomas B. Gilchrist for appellants.
    I. The will discloses an intention to achieve equality of distribution on a stirpital basis with preference for those of testator’s blood. (Matter of Buechner, 226 N. Y. 440.) II. The word “ grandchildren ” will be construed in its secondary sense to include descendants of deceased grandchildren when it is apparent that such was testator’s intent. (Prowitt v. Rodman, 37 N. Y. 42; Matter of Brown, 93 N. Y. 295; Matter of Paton, 111 N. Y. 480; Matter of Schaufele, 252 N. Y. 65; Matter of Villalonga, 6 N Y 2d 477; Matter of Weil, 151 Misc. 841, 245 App. Div. 822, 271 N. Y. 608; Matter of Mahlstedt, 167 Misc. 13; Matter of McKim, 115 Misc. 720; Pfender v. Depew, 136 App. Div. 636; Matter of Stecher, 190 Misc. 502.) III. Applying the aids and tests that this court has sanctioned, testator’s intention must be taken to have been that the word ‘ ‘ grandchildren ” in the second paragraph of article 8 of his will should include descendants of deceased grandchildren. IV. The result sought by appellants is dictated by decisions of this court in an analogous line of cases embracing adopted children within the meaning of “ lawful issue “ children ” and “ descendants ”. (Matter of Upjohn, 304 N. Y. 366; Matter of Walter, 270 N. Y. 201; Matter of Myres, 205 Misc. 880; Matter of Hilts, 5 Misc 2d 862, 4 A D 2d 1013; Matter of Charles, 200 Misc. 452, 279 App. Div. 741, 304 N. Y. 776.) V. The pronounced stirpital scheme of will precludes a per capita distribution. (Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168.)

      Edward R. Finch, Leon Schaefler and Nancy E. Le Blanc for Emily W. Bobbins, Ethel K. Anderton and B. Sumner Welles, respondents.
    I. The word ‘ ‘ grandchildren ’ ’ has always been construed in its primary sense. (Matter of Mahlstedt, 167 Misc. 13; Matter of McKim, 115 Misc. 720.) II. The will provides for a legacy to persons constituting a specific limited class, i.e., 1 ‘ my grandchildren then living ’ ’. It excludes all others. (Matter of King, 200 N. Y. 189; Matter of Ruhl, 271 App. Div. 635; Matter of Tamargo, 220 N. Y. 225; Matter of Thompson, 279 N. Y. 131; Matter of Pulis, 220 N. Y. 196.) III. Without conceding their relevancy, the cases cited by appellants in which the question arose as to whether ‘ ‘ children ’ ’ includes ‘ ‘ grandchildren ” are readily distinguishable. In fact, they support the position of respondents. (Matter of Villalonga, 6 N Y 2d 477; Matter of Barnes, 2 N Y 2d 787; Prowitt v. Rodman, 37 N. Y. 42; Matter of Weil, 151 Misc. 841, 245 App. Div. 822, 271 N. Y. 608; Matter of Schaufele, 252 N. Y. 65.) IV. The burden rests upon appellants to establish “the unmistakable intent” of testator that “my grandchildren then living” includes great grandchildren. This burden they have not met. (Matter of Bisconti, 306 N. Y. 442.) Y. The attempted analogy of the case at bar to the decisions regarding adopted children is not in point. YI. If the English language ever means what it says, then our testator said as clearly as it is possible to say it, “ on Harriet’s death, I want the principal of her trust paid over to my grandchildren who survive her ”. (Matter of Watson, 262 N. Y. 284.)

      Charles H. Stoll, as special guardian for infants, in person, and Aaron L. Rochman for Charles H. Stoll, respondent.
    The language employed by testator in article 8 of his will clearly and definitely indicates testator’s intention to limit the gift of the remainder, resulting from the death of Harriet without issue, to those of his grandchildren then living and consequently such intention ought not to be changed by judicial construction. (Matter of Villalonga, 6 N Y 2d 477; Matter of Barnes, 2 N Y 2d 787; Low v. Harmony, 72 N. Y. 408; Wylie v. Lockwood, 86 N. Y. 291; Patchen v. Patchen, 121 N. Y. 432; Matter of Gautier, 3 N Y 2d 502.)

      Richard S. Emmet, John L. Merrill, Jr., and Eunice M. O’Neill for William M. Cruikshank and Bank of New York, respondents.
   Dye, J.

As we read this will, it seems clear that the testator intended what he said when he directed that the remainder of the Harriet trust be distributed “ equally among all my grandchildren then living This will was made in 1892 and a codicil in 1898. It is reasonable to suppose that the testator employed the term “ grandchildren” to designate a class as it was then understood, which he limited to those 1 ‘ then living ’ ’. To include great-grandchildren in that carefully designated class requires us to define the term1 ‘ grandchildren ’ ’ as including any descendant—however remote. We have never gone so far and should not do so in a case where the wording is so clear, precise and readily understandable as in this instance. Whenever the term ‘ ‘ children ’ ’ has been given a secondary meaning in order- to include the issue of a deceased child, it has invariably been for the purpose of giving effect to the testator’s evident intent to prevent failure of the estate. In Prowitt v. Rodman (37 N. Y. 42 [1867]) and cases which followed it, the rulings were made to prevent a lapse of the estate. Here there is no possibility of such failure, since there are living grandchildren capable of taking the remainder. When this testator used the words “issue”, “ descendants ” or “ children”, it was not in the sense employed in Prowitt v. Rodman (supra); Matter of Brown (93 N. Y. 295); Matter of Paton (111 N. Y. 480), and other cases in which such use was relied on to ascertain testamentary intent for the sake of preserving the estate but, on the contrary, whenever such terms were used by this testator it was in connection with the disposition of specifically designated funds not here involved. The distribution of Harriet’s trust remainder was handled by different verbiage which, as we have pointed out, was to be “ equally among all my grandchildren then living ”, a specific, clearly ascertainable and definite class. In our view, the direction “ that my property shall be enjoyed by those of my own blood ’ ’ was a further indication of his intent to confine the distribution to his grandchildren ‘£ then living ’ ’. Grandchildren are one generation nearer to the testator and it is not unreasonable to suppose that in 1892 this testator was using the term in the sense understood in common parlance of his generation and as reflected by the cases then decided. This view is reinforced by reference to the precision with which the testator in a preceding clause of the will directs division and distribution £ among all the children of my said daughter ’ ’. It seems to us that the only possible occasion justifying a more inclusive meaning would be to avoid failure of the estate.

If there were no “ grandchildren then living ”, we would find it easy to analogize the two situations and would gladly approve a construction that would save the estate by giving the remainder to the great-grandchildren, as we did in those cases where the designated remainderman class was a child or children, who had died leaving issue. Here we do not have that problem. There are living grandchildren.

To sum up, there is no good reason for saying this will means other than as written. Absent a clear showing of unmistakable intent to the contrary, no problem exists requiring construction. The wording is not unclear or ambiguous and the meaning is obvious. When the language used is given effect, the estate is preserved since there are living grandchildren capable of receiving the fund and it will thus he enjoyed by “ those of my [testator’s] own blood ”, thus satisfying the testator’s primary purpose and evident intent. To say he intended otherwise is to remake his will, and this we may not do (Matter of Villalonqa, 6 N Y 2d 477).

The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Burke, J. (dissenting).

The question before this court on this appeal is whether the word “ grandchildren ” in a clause of the will of the testator directing the distribution of a remainder should be construed in its primary sense.

We agree with the dissenting Judge below that it is apparent that the testator intended that the word “grandchildren” should be construed in a secondary sense to include the descendants of deceased grandchildren. We think that the will discloses an intention to achieve equality of distribution on a stirpital basis for those of the testator’s blood.

The rule in this State is that the primary “ canon of construction * * * to which all others are subordinate, [is] that the intention of the testator is to be sought in all his words, and, when ascertained is to prevail”. (Matter of Beuchner, 226 N. Y. 440, 444 [1919].)

No controlling adjudication has been brought to our attention where a court of this State has construed the word £ £ grandchildren ’ ’ to include 11 great-grandchildren ’ ’, but ‘£ children ’ ’, when it is evident the testator so intended, has been construed in its secondary sense to include issue of a child who has died. (Prowitt v. Rodman, 37 N. Y. 42, 54, 58 [1867], citing 4 Kent’s Comm. 419, n.; Matter of Brown, 93 N. Y. 295, 300 [1883]; Matter of Paton, 111 N. Y. 480, 486-487 [1888]; Matter of Weil, 151 Misc. 841 [Surrogate’s Ct., Kings County, 1934], affd. 245 App. Div. 822, affd. 271 N. Y. 608.)

In Prowitt v. Rodman (supra) we stated that “the term 1 children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it” (supra, p. 58). In that case the court noted that the will showed a disregard for technical meanings of terms. The same descendants were referred to as “ issue ” and “ children ”.

In Matter of Weil (supra) the testator’s great-grandchildren were held entitled to share in a class gift to testator’s grandchildren. There the corpus of a residuary trust was to be divided upon death of an executor and upon the attainment of a designated great-grandchild’s majority, into shares equal in number to testator’s children then living and deceased children who left children. Such shares were directed to be paid to each living child and to each of the “ children ” of testator’s deceased children, i.e., to testator’s “grandchildren”. When the trust terminated there survived one child of testator, a child of a deceased child, and also a great-grandchild who was descended of a deceased grandchild and deceased child of testator. Although the will specifically referred elsewhere to a “great-grandchild ” of the testator, testator’s reference to grandchildren, i.e. “ children ” of a deceased child, was held to mean ‘ ‘ descendant ” or “ issue ’ ’ and to include great-grandchildren. The Surrogate (151 Mise. 841, 849, supra) noted that this court had stated that ‘11 The word ‘ ‘ children ” is a flexible expression, and we think that meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit. ’ (Matter of Paton, 111 N. Y. 480, 486.) ”

Matter of Villalonga (6 N Y 2d 477, 480) which this court decided recently did not change that rule because the court in that case found that “ There is no interchangeable use made of the terms ‘ children ’ and ‘ issue. ’ Nor does the general distributive scheme disclose a testamentary purpose to benefit children of predeceased intermediate offspring together with surviving immediate offspring of the life tenants” (p. 481). We pointed out (p. 483) that “ in the Prowitt case the words ‘ children ’ and 1 issue ’ were used interchangeably to refer to the same class, thereby resulting in a definite ambiguity as to the make-up of that class. Thus, in that case it was the uncertainty as to the class which required the application of a rule of construction ’ ’.

The significance of these cases is that all recognize the criteria that this court has adopted and applied in construing wills wherever similar language has been used. We believe that the language used by Judge Rapallo in the Brown case (supra, p. 300) is apposite here. He wrote in that case that “ It is not reasonable to impute to the testator the intention to exclude wholly from the inheritance, the descendants of either of his daughters

The language of the will and the circumstances here dictate a like conclusion. In 1892, the date of his will, as in 1898, when he executed his codicil, the testator had four children living, viz., three daughters, Catharine, Helen and Harriet, and a son, Benjamin, and also five grandchildren, two being children of Benjamin and three being children of Helen.

Harriet, who was in her fortieth year and unmarried in 1898, was the last of testator’s children to die. She died without issue at the age of 100 in 1959.

The provisions of the will which throw light on the testator’s intentions are:

“ 5. I direct and devise to my said Trustees the house and lot known as No. 107 Miller Avenue Brooklyn together with the lots adjoining thereto, to hold the same at their discretion, for the use of my daughter Catharine, during her life, and I also direct that my said Trustees, shall retain so many securities, belonging to my Estate, as they shall deem necessary to produce an annual income, sufficient for the comfortable support of my said daughter, which Income, I direct my said Trustees to apply to the support of my said daughter Catharine. And at the death of my said daughter Catharine to divide the principal together with all accumulated Income, equally among all my children Helen, Benjamin and Harriet and in case of the death of any of my said children before the death of my said daughter Catharine, I direct the share or shares of those so dying, to be equally divided among the descendants of the one so dying.” (Emphasis added.)

“ 6. I give, bequeath and devise one third of the remainder of all the property both Real and personal of which I shall die seized and possessed or to which I shall be entitled to my son Benjamin Welles and I do hereby order and direct my said Executors, in order to ascertain the said share of my son Benjamin to treat and consider the securities held in Trust by my said Trustees under said Ante Nuptial agreement and bond, as required by the foregoing provisions of this my said Will, as an advancement by me to my said son, and to be taken as a part of the one third hereby devised to him.

“ 7. All the Best, Besidue and Bemainder of nay property, both Beal and personal, I hereby give, bequeath and devise to my said Trustees hereinafter named in Trust nevertheless, to divide the same into two equal parts, and to hold one part thereof in trust for my daughter Helen S. Kingsland, and the other part thereof, in trust for my daughter Harriet, as hereinafter provided and in making such division I order and direct, my said Trustees to charge and consider the amount given by me to my said daughter Helen, at the time of her marriage and amounting, as charged to her on my books to the sum of Fifty Thousand Dollars as an advancement and as a part of her one half of my residuary estate And to pay over the Income of said one half part to my said daughter Helen, during her life and at her death to divide the principal, so held in Trust for my said daughter, equally among all the children of my said daughter and to pay over the same to them as they respectively arrive at the age of Twenty One years.

‘ ‘ 8. I direct my said Trustees, to pay the Income of the remaining one half of my said Estate, to my daughter Harriet, during her life, and at her death, to divide the principal equally among all the children of said daughter Harriet, should she marry, and have any born to her and to pay over the same to them as they reach the age of Twenty-one years respectively.

“In the event of either of my daughters, Helen or Harriet, or my son Benjamin, dying without issue, him or her surviving them, I direct my said Trustees to divide the amount so held In Trust, for the benefit of the one so dying, equally among all my grandchildren then living, and to pay the said shares, to said grandchildren as they respectively arrive at the age of Twenty one years. It being my Express wish, that my property shall be enjoyed by those of my own blood.” (Emphasis added.)

Upon the death of Harriet in 1959, three grandchildren survived, viz., the two children of Benjamin and one of Helen’s three children.

The two grandchildren who predeceased Harriet each had a child or children who were living at Harriet’s death. Those children are great-grandchildren of the testator.

The courts below did not, in our opinion, accord sufficient weight to the obvious fact that when the will is read as a whole it does not disclose any intention to discriminate among the grandchildren or their families. They give no reason why any family whose head, a grandchild of the testator, might fail to survive a child of the testator, should be disinherited. There is nothing in the will which can be deemed to neutralize the presumed intent of the testator to avoid disinheritance.

In this will, as in Prowitt v. Rodman (supra), there is a disregard for technical meanings and here the manner of the use of the words “descendants”, “issue” and “children” throughout the will is significant.

The testator provided that the remainder of his son’s ante-nuptial trust should go to his son’s “ descendants that the remainder of Catharine’s trust should be distributed equally among his other three children if living, and the share of any deceased child “to be equally divided among the descendants of the one so dying ”; and that the respective remainders of the trusts for Helen and Harriet should be distributed equally among “ all of the children ” of each. Then the testator designated his “grandchildren” “then living” as contingent remaindermen of each of said trusts upon the death of the life beneficiary ‘ without issue ’ ’.

Such use of the words “descendants”, “issue” and ‘‘ children ’ ’ seem to us to reflect a stirpital scheme in the context in which they appear. They indicate a desire to equalize the distribution of his estate among his children and their respective descendants. This desire for equality is emphasized by the ultimatum “ that my property shall be enjoyed by those of my own blood ”.

In the face of a testamentary scheme which favored a stirpital plan, which would achieve equality of distribution, and in the light of an expressed emphatic preference for his own blood and the interchangeable use of the words of art “children”, “ descendants ” and “ issue ”, we do not think that the words “ then living ” should be interpreted so as to disinherit a line of testator’s descendants and upset the scheme for the equal enjoyment of his estate. The particular clause in which the words “ then living ” is used is inconsistent with its predecessor clauses in its employment of the word “ issue ” and the limitation ‘ ‘ then living ’ ’ side by side and is internally contradictory in announcing an expressed wish (without limitation) that the property shall be enjoyed by those of his “ own blood ”. The ambiguity presented can hardly be resolved in favor of a discrimination which is not confirmed by any other language in the will when the expressed intent to benefit blood members of the family, if construed to mean all members, fits naturally into the testamentary scheme and is entirely consistent with the concern shown by testator for his descendants in the predecessor clauses (see Restatement, Property, §§ 285, 291). We conclude, therefore, that it was the intention of the testator taken from the will as a whole, to benefit equally the families of his descendants and that he intended to use the words grandchildren ” in these circumstances in a sense which would include his great-grandchildren. In this unusual case the testator obviously did not and could not allow for the longevity of Harriet. He did not intend, we are sure, that two of the five branches of the testator’s direct descendants should be disinherited simply because the heads of those two branches failed to outlive a centenarian.

Accordingly, the order of the Appellate Division should be reversed, with costs payable out of the estate to all parties.

Judges Froessel, Van Voorhis and Foster concur with Judge Dye ; Judge Burke dissents in an opinion in which Chief Judge Desmond and Judge Fuld concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Fuld, J. Froessbl, J. (concurring).

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Luis Manuel Rosario, Appellant.
    Argued January 19, 1961;
    decided March 23, 1961.

      Rudolph Stand, Oscar Gonsales-Suarez and Milton M. Rosenberg for appellant.
    I. The trial court having found, by preliminary inspection, that witnesses had made statements inconsistent with their testimony, such statements should have been turned over in their entirety for use by counsel for the accused in cross-examination. (People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161; People v. Dales, 309 N. Y. 97; People v. Becker, 210 N. Y. 274; Jencks v. United States, 353 U. S. 657.) II. There was an unreasonable prolongation of the deliberations of the jury and the court erred in denying defense motions for their discharge.

      Frank S. Hogan, District Attorney (Richard G. Denser and Robert Popper of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt. II. The court’s rulings in turning over to the defense, for cross-examination purposes, portions of prior statements made by certain prosecution witnesses were proper. (People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161; People v. Dales, 309 N. Y. 97; People v. Bai, 7 N Y 2d 152; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; Jencks v. United States, 353 U. S. 657; People v. Marshall, 5 A D 2d 352.) III. The court’s rulings denying defense motions to discharge the jury during their deliberations were proper. (People v. Koerner, 117 App. Div. 40; People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138.)
   Fuld, J.

The appellant Luis Rosario stands convicted of murder in the first degree stemming from the death of a restaurant proprietor shot during the course of a robbery which the appellant and two accomplices committed and, on the record before us, there can be no possible doubt of his guilt. Indeed, he does not contest the sufficiency of the evidence, but he does raise a question which involves an important problem in the administration of the criminal law and merits our attention and consideration. It is the appellant’s contention that the trial judge committed reversible error in refusing to turn over to defense counsel, for cross-examination purposes, statements given some time .before the trial by three prosecution witnesses.

One of the three, Basilio Otero, was an eyewitness to the robbery. He had been about to leave the restaurant when the appellant, gun in hand, ordered him to the rear of the shop and into the lavatory; at the same time, he saw the other two defendants (who had been with the appellant) push the proprietor toward the rear. From behind the closed door, he heard a shot and, after a few minutes, came out to find the robbers gone. The second witness was Josephine Rodriguez, a girl friend of one of the other defendants; it was she to whom the appellant gave his gun after the robbery, informing her that he and the others had held up a man in a restaurant, taken $75 from him and ££ shot him ” when he refused to give them more. The third witness was the appellant’s own girl friend, Jane Thompson, and to her the appellant admitted the “ shooting ”, stating that “ we had three guns and we shot together ”.

After each of these three witnesses had concluded his or her direct testimony, defense counsel requested that the witness’ statements be turned over to them for possible use on cross-examination. Instead, the statements were submitted to the trial judge for his inspection. After reading each statement, he announced that he found some ££ variances ” between statement and testimony and told defense counsel that they might examine and use only those portions of the statement containing the variances. In other words, he refused the request that the entire statement be given to the defense so that counsel might “ determine for themselves ” whether any other portions would be helpful upon cross-examination.

When it appears that a witness for the prosecution has made a statement, to police, district attorney or grand jury, the attorney for the defendant, naturally enough, desires to see it in the hope that it may assist him to impeach and discredit that witness. The question then arises whether the statement should forthwith be delivered to the defense or whether it should be handed over only if it is found, on inspection by the court, to contain material at variance with the witness’ testimony in court. The United States Supreme Court has held that a defendant “is entitled to inspect” any statement made by the Government’s witness which bears on the subject matter of the - witness’ testimony (see Jencks v. United States, 353 U. S. 657, 667, 668), whereas in New York we have allowed the defendant to see and use the statement only if it contains matter which is inconsistent with the testimony given by the witness from the stand. (See People v. Walsh, 262 N. Y. 140, 149; People v. Schainuck, 286 N. Y. 161; People v. Dales, 309 N. Y. 97; People v. Bai, 7 N Y 2d 152, 155.)

The procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies' from his testimony on the stand. As long as the statement ¡ relates to the subject matter of the witness’ testimony and? contains nothing that must be kept confidential, defense counsel • should be allowed to determine for themselves the use to be made of it on cross-examination. (Cf. U. S. Code, tit. 18, § 3500.)

A pretrial statement of a witness for the prosecution is valuable not just as a source of contradictions with which to confront him and discredit his trial testimony. Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness’ bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in Ms favor. Shades of meaning, stress, additions, or omissions may be found which will place the witness’ answers upon direct examination in an entirely different light. As the United States Supreme Court has so well observed, “ Flat contradiction between the witness’ testimony and the version of the events given [previously] * * * is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony. ” (Jencks v. United States, 353 U. S. 657, 667, supra.)

Furthermore, omissions, contrasts and even contradictions, vital perhaps, for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accus.ed; the latter is in a far better position to appraise the value of a witness’ pretrial statements for impeachment purposes. Until his attorney has an opportunity to see the statement, it is asked, how can he effectively answer the trial judge’s assertion that it contains nothing at variance with the testimony given or, at least, useful to him in his attempt to discredit such witness?

It is true that defense counsel will undoubtedly be in a position to cross-examine, at greater length than without such pretrial statements. But there is nothing wrong in this. It does not mean that the defense will be able to go on a tour of investigation seeking generally useful information. Our decision pre[supposes that the statement relates to the subject matter of the witness’ testimony, that it is to be used for impeachment purposes only after direct examination and that the necessities of effective law enforcement do not require that the statement be kept secret or confidential. In any event, the extent of cross-examination is subject to control by the trial judge. In short, since “ the State has no interest in interposing any obstacle to the disclosure of the facts ” and since the defense should be given the benefit ” of any “ information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence ” (People v. Davis, 52 Mich. 569, 572, 573-574; People v. Walsh, 262 N. Y. 140, 150, supra), the defendant is entitled to see and use the entire statement. Otherwise, there is always a danger that something will be withheld from defense counsel which may assist him in impeaching the prosecution’s witness.

It is our conclusion, therefore, that the trial judge should have turned over to the defendant the requested statements in their entirety. In this instance, though, we deem it not amiss to consider whether the ruling which he made prejudiced the defendant, whether, in other words, there was a rational possibility that the jury would have reached a different verdict i'f the defense had been allowed the use of the witness’ prior statements. (See People v. Kingston, 8 N Y 2d 384, 387; People v. Jackson, 7 N Y 2d 142, 145; People v. Mleczko, 298 N. Y. 153, 162-163.) We believe not. On the record before us, there can be no possible question of the appellant’s guilt, even apart from the testimony of the witnesses whose statements had been requested and refused. Not only was there evidence of admission to friends before and after the fatal robbery, not only was there proof of a confession to the district attorney, not only was there evidence of flight, but there was ballistics testimony indicating that the lethal bullet had issued from the appellant’s gun. And, of the utmost significance, examination of the prior statements discloses that the few variances contained in them were of a most inconsequential character.

This court is exceeding slow to disregard error as harmless under section 542 of the Code of Criminal Procedure, particularly in a capital case. However, in the one before u», we are as convinced as judges may ever be, in view of the overwhelming proof of guilt and the absence of any real inconsistency between prior statement and trial testimony, that the jury would not have decided the case differently even if defense counsel had had the use of the statements in question. In other words, it may not be said that any substantial right of the appellant was prejudiced by the trial court’s erroneous ruling.

The judgment of conviction should be affirmed.

Froessbl, J. (concurring).

I agree for affirmance, but not under section 542 of the Code of Criminal Procedure.

For many years it has been the rule in this State “ that where a witness in a criminal case testifies to having made * * * a statement and the statement is in court and an inspection of it by the presiding judge reveals contradictory matter, its use for cross-examination on the question of credibility may and usually should be permitted ” (People v. Walsh, 262 N. Y. 140, 149-150, emphasis supplied; see, also, People v. Schainuck, 286 N. Y. 161; People v. Dales, 309 N. Y. 97, 102-103; People v. Bai, 7 N Y 2d 152, 155).

In Walsh we did not say that the prosecutor was required to turn over the entire statement. In Schainuck we recognized that the “ use ” of the statement was for the purpose of comparing the ‘ ‘ conflicting versions ’ ’, and spreading them both before the jury. It has thus been the invariable practice to give to a defendant access to the statement of a People’s witness only insofar as it contains contradictory matter. Indeed there can be no doubt what we meant in the Walsh case for, as recently as..a little more than a year ago, in People v. Bai (supra), we stated that on the new trial a witness’ statement, which conflicted in some respects with his testimony at the trial, “ might well be released in part to the defendant under People v. Walsh (262 N. Y. 140) ” (emphasis supplied). That is precisely what was done here.

I see no.good reason why we should now change the longstanding Walsh rule, so that, as the majority hold, even “ statements seemingly in harmony with such [witness’] testimony” must be surrendered to defense counsel because they may somehow “prove helpful on cross-examination ”. In a criminal action, the People have the burden of overcoming the presumption of innocence which rightfully belongs to a defendant and proving his guilt beyond a reasonable doubt. The courts have no right to add to the People’s burden the necessity of giving defense counsel ammunition in a game of semantics.

A defendant should of course be entitled to probe fully any contradictory matter, but oug’ht not to be permitted to embark on a fishing expedition in the expectation of discovering subtle shades of meaning and immaterial variances in a prior statement of a witness, and skillfully playing on them before the jury. Such a practice would undoubtedly prolong trials and produce confusion, without in any way promoting the ends of justice.

The rule as followed in New York State is a sound one and should not be abandoned. While we should always remember that a defendant’s rights must be zealously safeguarded, we should not forget that the rights of the People of the State ought not be whittled away by judicial decision. The majority suggest that an impartial presiding Judge might not be alert to the latent possibilities of an item in a statement, and only the defense is adequately equipped to decide as to the effective use of a witness’ pretrial statement. We are not here concerned with a defense attorney’s right to exploit a witness’ pretrial statement except insofar as it affects the defendant’s right to a fair trial and the interests of justice. I refuse to concede that a Trial Judge is less able than a defendant’s attorney to see to it that this right is accorded the defendant.

Despite the majority’s doubt about the capabilities of a Trial Judge, and their fear “that something will be withheld from defense counsel which may assist him in impeaching the prosecution’s witness ”, it nevertheless votes to affirm the conviction in this capital case. It holds that we as appellate Judges may now examine the prior statements, and conclude that the variances they disclose are of such a trivial and inconsequential character that they may be disregarded. If we may, why may not the Trial Judge be given the same right in the first instance? Should he err, the appellate courts may correct him, as in any other case of error.

Since the rule enunciated in People v. Walsh (supra), and reaffirmed in People v. Bai (supra), is a sound one, which in nowise deprives defendant of a fair trial, we should not change it now. The court below faithfully followed the rule we laid down, and accordingly we should affirm.

Chief Judge Desmond and Judges Van Voobhis and Foster concur with Judge Fuld ; Judge Froessel concurs for affirmance in a separate opinion in which Judges Dye and Burice concur.

Judgment of conviction affirmed.

      . The jury found one of the appellant’s codefendants guilty of murder in the first degree, with a recommendation that he be imprisoned for life (Penal Law, § 1045^a); his appeal is now pending in the Appellate Division. As to the other defendant, the jury failed to agree on a verdict.