People v. Spitzer — 294 N.Y. 5

Majority

p. 5

The People of the State of New York, Respondent, v. Irving Spitzer, Appellant.

Argued November 21, 1944;

decided December 30, 1944.

p. 6

Jacob W. Friedman for appellant.

The trial court improperly expressed an opinion as to defendant’s guilt. (People v. Kelley, 253 App. Div. 430 ; People v. Intersimone, 266 App. Div. 280 .)

Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.

Appellant was not deprived of a fair trial by any alleged indication of the court’s belief in his guilt. (People v. Cooke, 292 N. Y. 185 .)

Defendant was indicted for and convicted of the crimes of burglary in the third degree, committed as a second offense, and petit larceny. The court clearly and forcibly indicated in his main charge and also in a charge made in response to a request that he believed the defendant guilty of the crimes for which he was indicted and that he should be convicted. This left for the jury no fair opportunity for consideration of the question of criminal intent which was an essential element of the crimes charged and the main point in issue in the case.

For the errors thus committed, and preserved for consideration by exceptions, the judgment should be reversed and a new trial ordered.

Lehman, Ch. J., Loughean, Rippey, Conway, Desmond and Thacheb, JJ., concur; Lewis, J., taking no part.

Judgment reversed, etc.

Cases cited

People v. Cooke 292 N. Y. 185 N.Y. 1944-03-02 p. 6