People v. Fishback

273 A.D. 914 | N.Y. App. Div. | 1948

Judgment of the County Court, Queens County, convicting defendant of the crimes of conspiracy to commit an abortion and conspiracy to commit an act injurious to the public health and morals, reversed on the law and a new trial ordered. The findings of fact implicit in the verdict of the jury are affirmed. No evidence was adduced to support the court’s charge that the defendant’s examination of the victim on March 22, 1946, might be considered as an overt act; nor could the defendant’s signing of the death certificate of the victim be considered as such, as charged, insofar as the alleged conspiracy to commit an abortion is concerned. The conversation between the victim and her sister prior to the alleged abortion, in which the victim narrated the fact of her condition and her plans, was not in furtherance of the alleged conspiracy. Consequently, the sister’s testimony relating the conversation was improperly admitted in evidence. Cross-examination of one of the People’s witnesses, who had been excluded by the court from the courtroom during the trial, concerning disclosures to the witness of testimony given during her exclusion, should have been allowed. The prosecutor’s offer of the entire grand jury minutes of the testimony of a witness in evidence after the court, in the jury’s absence, had allowed defendant’s counsel only a partial and limited examination of such minutes, was prejudicial to the defendant. Exclusion of evidence of the knowledge of the People’s chief witness, a confessed coconspirator and accomplice, that she was subject to imprisonment on a pending charge of operating a hospital without a permit, considered in conjunction with the foregoing errors, is further ground for reversal. Order denying defendant’s motion for inspection of the grand jury minutes or, in the alternative, for dismissal of the indictments, affirmed. Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.