People v. Gardner — 178 A.D. 947

Majority

p. 947

Fourth Department,

May, 1917.

The People of the State of New York, Respondent, v. Putnam Gardner, Appellant.

Headnote

Crime — attempt to rape evidence.

Appeal from a judgment of conviction of the County Court of Jefferson county, rendered on the 8th day of November, 1916.

The defendant, an old man nearly eighty years of age, has been convicted of attempting to rape a girl of eight. The conviction rests upon the testimony of the child and a man whose reputation is not

p. 948

the best, and is so inherently improbable and contrary to the surrounding circumstances and other credible testimony that we think the conviction should not be sustained. We are convinced after careful consideration of all the evidence that the verdict is against the weight of the evidence. All concurred. Judgment of conviction reversed and new trial granted, upon the ground that the verdict is against the weight of the evidence upon the question of the commission of the crime of which the defendant was convicted.