261 A.D. 876 | N.Y. App. Div. | 1941
Judgment of conviction reversed on the law and a new trial granted. Memorandum: The evidence was sufficient to support the verdict rendered against the defendant and the judgment of conviction would have to be affirmed were it not for an erroneous instruction given to the jury, when they asked for instructions, in substance, that the jury must find the defendant guilty or innocent on each of the four counts of the indictment. The law is otherwise. A jury may disagree as to any or every count of an indictment or it may acquit or convict as to one or more of the counts of an indictment and disagree as to the remaining counts. A judge “ must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict.” (People v. Faber, 199 N. Y. 256, 259. See, also, Levinson v. Zipkin, 65 Misc. 203, 206; Wilkins v. Abbey, 168 id. 416, 418; Code Crim. Proc. § 428.) We do not regard this error as unsubstantial. [See Code Grim. Proe. § 542.] The judgment of conviction should be reversed and a new trial should be granted. We do not deem it necessary to pass upon the other errors urged by the appellant and we express no opinion as to them. All concur. (The judgment convicts defendant of the crime of forgery, second degree, and petit larceny.) Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.