304 N.Y. 120 | NY | 1952
Lead Opinion
The defendant is forty-nine years of age and has taught in schools for boys for twenty-five years. He was convicted of the crime of sodomy. There was no proof of the commission of the crime except as it came from the words of the complainant. The jury was charged by the County Judge that if it found that the complainant was an accomplice, it must find corroboration before it could convict him. That was the law of the case. We have recently pointed out that the corroborative evidence of the testimony of an accomplice “ must be evidence
We cannot determine on this record what was the basis for the jury’s verdict of guilt: i.e., whether it found that the complainant was a nonaccomplice or. found that he was an accomplice. If it found that he was a nonaccomplice, the verdict would have been justified, since no • exception was taken to the charge and no request was made that the court charge in accordance with the requirements set out in People v. Mullens (supra). On the other hand, the jury may have concluded that the complainant was an accomplice, in which event the jury must have found that there was corroboration. The statement of the defendant to the State trooper may not be considered to be sufficient as the corroboration required under our authorities. Since we cannot determine on this record what was the basis for the verdict of guilt by the jury, the judgment of conviction must be reversed and a new trial ordered. In People v. Feolo (284 N. Y. 381, 385) we said: “ How this issue as to Funicello’s status as a witness was composed by the jury we cannot know. Hence, we are called upon to say whether on this record the verdict may be taken as a valid finding that Funicello’s testimony was sufficiently corroborated as against each of the three defendants. If as to any defendant the answer is in the negative, the judgment as against him cannot be upheld on the speculation that the jury found Funicello was not an accomplice. (See People v. Lazar, 271 N. Y. 27.) ”
The judgments should be reversed and a new trial ordered.
Dissenting Opinion
(dissenting). Since defendant entered no objection or exception to the County Judge’s charge concerning accomplice corroboration, and never in any manner or at any time during the trial raised any such question, the point is not
The judgment should be affirmed.
Lewis, Dye, Fttld and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents, in opinion in which Loughran, Ch. J., concurs.
Judgments reversed, etc.