224 A.D. 415 | N.Y. App. Div. | 1928
The defendant has been convicted of the crime of grand larceny in the second degree. He is charged, in substance,
The defendant, a builder, operating under the name of Sam Evans, Inc., was engaged at the time of the delivery of the check in the construction of a house at Great Neck, Nassau county, N. Y. He had contracted on May 25,1927, with one Ring for the furnishing and installing of heating and plumbing fixtures in the premises. The contract among other things provided for the payment of about $1,300 upon the installation of roughing, and the setting of the tubs and boiler.
Ring, the complaining witness, testified that early in June, 1927, defendant requested that he install the boiler. This he testified he declined to do unless defendant paid for the boiler and for the work already performed. He says that the defendant thereupon agreed to deliver a check for $1,000, to be applied on account of the boiler and of the roughing payment. He delivered the boiler on June 29, 1927, and received that day from defendant the check in question, which was subsequently dishonored. The workman who installed the boiler testified that it was done on June twenty-ninth, and that prior thereto it had been in the yard of the complaining witness. This constitutes substantially all of the evidence tending to connect the defendant with the crime charged.
The question before us for determination relates to whether or not the check was given, as claimed by the complainant, to pay for the boiler, or whether, as claimed by the defendant, it was given to the complainant and received by him as a post-dated check for his accommodation, to be applied on the first payment due under the contract. Upon the controversy presented by this issue, the defendant testified: “ Q. Tell us what conversation you had with Mr. Ring which led you to give him this check for a thousand dollars? A. Well, Mr. Ring came in on the 29th and wanted to know if he could get a payment. I said: ' Mr. Ring, I am getting my first payment on the 1st from the Finance Company and that day I will give you a check/ but he said: ‘ I want the check today because I am going away on my vacation over the 4th. of July, and I want to use the money; ’ and I told him particularly at that time that there wasn’t any money in the bank, that he couldn’t use it. I assumed at that time he was banking in the same bank I was, and when he accepted that check he knew at the time there was no money. Q. Did he tell you he was in the same bank you were in? A. No. Q. What did he say about that? A. He said
It seems that defendant was disappointed in obtaining sufficient funds with which to meet the check, the title company not having advanced him the amount he expected. The prosecution not only failed to establish the guilt of the defendant beyond a reasonable doubt, but the preponderance of the evidence conclusively shows the defendant to be innocent of the crime charged against him; but this is not all. The defendant claims further, and I think with reason, that he did not receive a fair trial.
The assistant district attorney in cross-examining the defendant was permitted to interrogate him upon collateral matters which the jury had no right to consider in arriving at their verdict. For instance, the district attorney asked him: “ Q. And you are not a i citizen yet? A. No. Q. Have you ever tried to be? A. Yes. Q. Why did you fail to become one? A. Because the man that had my second papers died the time I was getting ready for it. Q. How long ago was that? A. 1920. Q. Did you start over again? A. No.” Of what interest was it to determine the question as to whether defendant was a citizen of the United States? Surely it
The judgment of conviction should, therefore, be reversed and a new trial granted.
Seeger and Scudder, JJ., concur; Lazansky, P. J., and Young, J., concur in result, upon the ground that defendant was not accorded a fair trial.
Judgment of conviction of the County Court of Nassau county reversed upon the law and the facts and a new trial ordered. r