261 A.D. 864 | N.Y. App. Div. | 1941
On an appeal by the defendants from conviction and sentence this court handed down its decision on October 31, 1940 [260 App. Div. 452], that the judgment of conviction be reversed “ upon the law and facts, and new trial-granted upon the ground that the defendant Shambrock was not permitted to testify fully as to his whereabouts on the night of the alleged crime.” The People now move to resettle the order entered upon this decision so as to strike out the statement that the reversal was upon the facts as well as upon the law. Upon the appeal no question was raised by the defendants with regard to the facts or to the weight of the evidence. No point was made that the convictions were not justified by the evidence presented upon the trial, nor did the majority or dissenting opinion discuss the sufficiency of the evidence. The sole questions involved were the constitutionality of section 295-1 of the Code of Criminal Procedure and whether this section was applicable to the defendants as well as to their witnesses in their behalf, and the argument dealt solely with these questions. The mere posing of these questions demonstrates that they are of law only. The motion should be granted. Motion granted. Present — Hill, P. J., Bliss, Heffernan, Sehenek and Foster, JJ.