265 A.D. 1017 | N.Y. App. Div. | 1943
We are constrained, however, to sustain the contention of the appellant that the trial court, in the period between the submission of the case to the jury and the return of their verdict, made observations to the jury of a prejudicial and coercive character, which, in effect, invaded the function of the jury in respect of the evidence the jury was obligated to believe or to credit. It may be that the court intended to give expression to thoughts that were not erroneous or prejudicial, but under circumstances of tension made an unhappy choice of language. We must consider, however, the possible effect of the erroneous statements as made, and may not ascribe to the court’s language a meaning which, if so understood, would not have been erroneous. Order denying motion to set aside the appointment of Irving G. Kennedy as Special District Attorney, and to dismiss the indictment, affirmed. Close, P. J., Carswell, Johnston, Taylor and Lewis, JJ., concur. [See 180 Misc. 160.]
