| N.Y. App. Div. | Jul 13, 1917
The defendant Milch was convicted in the Court of General Sessions of an attempt to commit grand larceny in the first degree, in that he, in conjunction with the other defendants indicted with Mm, by false and fraudulent representations attempted to induce the payment by the PMladelpMa Life Insurance Company of the amount of a policy of fife insurance issued upon the life' of one Samuel Caminsky. In view of the disposition we are about to make of the appeal, and the reasons for so disposing of it, we find it unnecessary to state the accusation and proof in detail.
The appellant in addition to pointing out alleged errors in the admission and rejection of evidence, and claiming that the evidence wholly fails to connect him with the crime, especially insists that throughout the trial the judge who presided at it evidenced such an hostile attitude towards said appellant, and otherwise so conducted the trial that the appellant was not accorded that fair and impartial trial
Present — Clarke, P. J., Laughlin, Scott, Davis and Shearn, JJ.
I agree that the defendant did not have an absolutely fair trial and that for that reason alone, if there were none other, the judgment appealed from should be reversed. I think, however, that the defendant was tried and convicted of a crime with which he was not charged in the indictment. The first count of the indictment (the second was dismissed) charges that on May 8,' 1913, the defendant with others made certain false representations to the Philadelphia Life Insurance Company in a felonious and fraudulent attempt to deprive said company of its money.
The indictment recites by way of introduction the taking out of said policy in 1911, and names several persons who were instrumental in having the policy issued. The defendant, however, is not so named and is not charged, so far as the indictment goes, with the fraud which was undoubtedly committed at that time. When it comes to charging defendant with felonious and fraudulent acts it is not even alleged that he did those acts on the 8th day of May, 1913, “ and there
The defendant, therefore, in my opinion, was convicted of a fraud in 1911 with which he was not charged in the indictment. I concur in the reversal pf the judgment.
Judgment reversed and new trial ordered. Order to be settled on notice.