People v. Destro — 217 A.D. 819

Majority

p. 819

Fourth Department,

October, 1926.

The People of the State of New York, Respondent, v. Louis Destro, Appellant.

Headnote

Crimes — trial — improper to permit plaintiff’s attorney to call defendant as witness — act not prejudicial error, under circumstances, requiring reversal.

Appeal by the defendant (as stated in notice of appeal) from a judgment of the City Court of Jamestown, rendered on the 22d day of April, 1926, convicting him of the crime of unlawfully placing a minor boy in such position that his morals were likely to be impaired, constituting a violation of section 483 of the Penal Law, after an affirmance by the County Court of Chautauqua county, rendered July 12, 1926. (See Jamestown City Court Act [Laws of 1923, chap. 666], § 58; Code Crim. Proe. § 749 et seq.; Id. §§ 764-766, 770, 771.)

While we think the conduct of the counsel for the plaintiff in calling the defendant to the stand and thereby making him a witness against himself, was prejudicial, we think that in view of all the evidence in the case, it is not sufficient to require a reversal. All concur, except Taylor, J., who dissents and votes for reversal and granting a new trial, on the grounds: 1. That the transaction involving the calling of the defendant to the witness stand by the assistant corporation counsel was seriously prejudicial to the defendant. 2. That the evidence is clearly insufficient to sustain the verdict beyond a reasonable doubt. Present — Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. Judgment affirmed.