149 N.Y.S. 819 | N.Y. App. Div. | 1914
Defendant was indicted for a violation of section 1897 of the Penal Law, which, on November 21, 1910, the date of the alleged offense, provided that ‘ ‘ A person who attempts to use against another, or who carries, or possesses any instrument or weapon of the kind commonly known as a slungshot, billy, sandclub or metal knuckles, or who with intent to use the same against another, carries or possesses a dagger, dirk or dangerous knife is guilty of a felony.” (See Consol. Laws, chap. 40 [Laws of 1909, chap. 88], § 1897; since amd. by Laws of 1911, chap. 195, and Laws of 1913, chap. 608.) We think that the evidence upon the part of the People, if accepted by the jury, was sufficient to justify them in finding that on the date in question defendant had in his possession what is known as a “nicked razor,” that is, a razor which has its edge indented after being subjected to heat, so that it presented a serrated surface. The razor which one of the witnesses for the People testified that he took from the possession of defendant, removing it from his pocket, and which is an exhibit in the case, was a “nicked razor.” Its appearance would indicate and there was evidence to show that such an instrument was totally unfit to be used for the normal purpose of a razor, but that it might be used as a weapon, and that a wound inflicted by it was of grievous character, and if it healed would leave a ragged and ugly scar.
The third witness called for the defense was named Alphonso Ingénito. He was an Italian by birth, and his testimony was given through an interpreter. On his direct examination he testified as follows: “ Q. Now, you remember when the two officers came in ? A. Yes, sir. Q. Did you see razors ? A. Yes, sir. Q. Who had the razors ? A. Two persons. Q. Who were the two persons ? A. This defendant and the man that walked in here a minute ago. Q. Did you see those two razors ? A. Yes, sir. Q. What was the condition of those razors when you saw them % A. I saw two razors being taken out of the pockets. Q. What was the condition, were they good, bad or what % A. They took the razors out of their pockets. They put them up .against the light and they were entire, the blade was not broken up. Q. Did you see the razors with your own eyes ? A. Yes, sir. * * * Q. I now show you a razor (handing People’s
If the witness had committed the crime of perjury, the impression upon the jury caused by his summary commitment therefor is not removed as a rule by general instructions in the charge, even though the court did say: “You will, therefore, carefully review all the testimony and you will not be prejudiced by the episode that occurred during the trial, wherein the court acted as the court felt it should, and, as I have already in that very instance told you, you have a right to believe every single word that that witness said, should you so desire.” The reference to his preceding instruction occurred in the course of a colloquy between the judge and the defendant’s counsel, in which counsel first asked the court to direct a mistrial, and then to permit him to withdraw from the case because of the prejudice arising from the court’s summary action. On that occasion, after reiterating in the presence of the jury that the witness, in the opinion of the court, had committed perjury, the county judge added: “I would say to the jury now that they are not to condemn, should they have that consideration placed before them, this defendant for any perjury that the
The judgment of conviction of the County Court of Kings county must be reversed and a new trial ordered.
Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.
Judgment of conviction of the County Court of Kings county reversed and a new trial ordered.