184 A.D. 575 | N.Y. App. Div. | 1918
This is an appeal by the above-named defendant from a judgment of the County Court of Kings county adjudging the defendant guilty of robbery in the first degree as a fourth offense, and sentencing him to imprisonment in the State prison for the term of his natural life. The fact of the three prior convictions was proven and is not here questioned.
As to the first contention, the criminal transaction as stated by the witnesses for the People may be briefly summarized thus: One Mrs. Patterson kept a rooming house at 154 Lawrence street, Brooklyn. The evening of March 8, 1917, she opened a poker game with her roomers and friends and continued it without interruption until eleven-fifteen a. m. the following morning. At that time the door bell rang and, upon the door being opened, some six men rushed in, two of whom had played in the game earlier and lost. Those men proceeded to rough-house the establishment, incidentally robbing her of some money and also some of the others. Mrs. Patterson and one Moser, who was present, as witnesses, identified defendant as one of the men. The other witness for the People, Brown, who was present, did not recognize him. Upon Moser’s direct examination by the People he, in answer to apt questions, testified that some hours after the commission of the crime he went out on the streets of Brooklyn in company with a detective and there saw a man in the street whom he identified as one of the gang, and that that man was at once arrested and proved to be the defendant. On cross-examination defendant’s trial counsel examined the witness at great length, evidently in a futile endeavor to shake his testimony as to such subsequent identification. In summing up, the counsel for the People made much of that testimony, and the learned court in his charge did likewise.
Defendant, as a witness in his own behalf, denied that he
As to the second contention of error made by the counsel for the defendant here, the following is the situation: Defendant called and examined one William Wahle to establish that he (Wahle) was with him in a certain theatre at the time when it was claimed by the People’s witnesses that the crime was committed. The respondent’s learned counsel here, in his brief, admits that Wahle was a perfectly reliable witness, and the general trend of his testimony in the record indicates as much. Wahle testified to the meeting and to his being with defendant as. claimed on a certain Priday, but was unable to positively fix the day as March ninth. The learned counsel for the defendant made strenuous efforts to get the witness to refresh his memory by recalling collateral events. Those efforts were baffled by the evident reluctance of the witness, and more, I think, by the interference of the court, or of the People’s counsel with the tacit approval of the court. It finally came down to this, that the witness,
I advise, therefore, that the judgment of the County Court of Kings county be reversed and a new trial ordered.
Jenks, P. J., Blackmar, Kelly and Jaycox, JJ., concurred.
Judgment of conviction of the County Court of Kings county reversed and new trial ordered.