194 A.D. 824 | N.Y. App. Div. | 1921
We think that errors require our order for a new trial.
First. The defendant called witnesses as to his good character. The court charged the doctrine of reasonable doubt and then immediately said: “Now there is in addition the
Second. The People could not put in evidence the proceedings on another charge against the defendant before a magistrate in the borough of Manhattan. (Dissenting opinion in People v. Wolf, 107 App. Div. 456; approved, 183 N. Y. 477.) The ruling cannot be sustained upon the ground that the
Third. After the People, over objection and exception, had read in evidence the proceeding on the said other charge in Manhattan, the record of that proceeding was found to state at the end: “ Dismissed on consent of the District Attorney, November 20, 1919, defendant given in custody of the police from the borough of Brooklyn on another charge.” The defendant contended the crime, if any, was committed in the county of Queens, and, therefore, sought to show by cross-examination of a police detective that before the magistrate in Manhattan the witness had testified that the defendant was wanted upon the other (i. e., this) charge in the county of Queens, and not in the borough of Brooklyn which is in the county of Kings. For that purpose counsel asked the witness if certain questions were not then and there put to him and certain answers given on that subject. The assistant district attorney during the cross-examination demanded that “ the minutes be marked in evidence.” The learned counsel for the defendant said: “We refuse to give them up.” The Court: “You are asking questions from these minutes? ” Counsel: “ Yes, and they are our records and we won’t give them up.” The Court: “ I will strike out all of this testimony regarding this record.” The defendant excepted. It is but just to note that the learned assistant district attorney finally stated that he did not wish the papers. But the ruling of the court remained. The defendant was under no legal obligation to comply with the demand of the court. It does not appear upon what theory the court required the counsel to “ give up ” the minutes. They were not evidence. (Neilson v. Columbian Ins. Co., 1 Johns. 301.)
The judgment is reversed in that the defendant did not have a fair trial, and a new trial is ordered.
Mills, Rich, Putnam and Kelly, JJ., concur.
Judgment of conviction of the County Court of Kings county reversed, and new trial ordered.