People v. Allen

246 A.D. 612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Judgment of the County Court of Kings county convicting the defendant of burglary in the second degree and rape in the first degree reversed upon the law and a new trial ordered. We have examined the record and find no error as to the facts. The court committed prejudicial error in refusing to permit defendant’s witness Burley to be sworn and questioned. The privilege granted a witness to refuse to testify on the ground that his testimony would tend to incriminate or degrade him is merely an option of refusal and not a prohibition of inquiry. It does not appear what evidence this witness might have given. It may be that important facts might have been brought out to the advantage of the defendant, in no way self-incriminating. The prosecution has not shown that this error was not prejudicial to the defendant. We are also of the opinion that the court erroneously refused defendant’s requests to charge at folios 1248-1251. Appeal from order entered September 14, 1934, dismissed. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.