People v. Birch

Appellate Division of the Supreme Court of New York

People v. Birch

283 A.D. 844, 128 N.Y.S.2d 407, 1954 N.Y. App. Div. LEXIS 5474

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 3, 1954

StatusPublished

Cited by5 cases

This text of 283 A.D. 844 (People v. Birch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Birch, 283 A.D. 844, 128 N.Y.S.2d 407, 1954 N.Y. App. Div. LEXIS 5474 (N.Y. Ct. App. 1954).

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Opinion

Judgment of conviction reversed on the law and facts and a new trial granted. Memorandum: Under the circumstances before us and in view of the presumption of law that a child under the age of twelve years is not competent to be sworn as a witness (People v. Klein, 266 N. Y. 188), the court was called upon to conduct a proper preliminary examination of the witness to determine whether or not the presumption of disqualification had been overcome. In our opinion the preliminary examination of the nine-year-old complainant was quite inadequate. We also feel that the charge was inadequate in that the court failed, among other things, to marshal the evidence more fully. Mere recitation of the crimes charged without further explanation of the facts which would or would not support a verdict of guilty was insufficient. (People V. Becker, 210 N. Y. 274; People v. Fanning, 131 N. Y. 659, 663; People V. Odell, 230 N. Y. 481). Moreover, we reach the conclusion that under the decisions in People v. Slaughter (278 Ú. Y. 479); People v. Berner (288 N. Y. 599), and People v. Ghurgin (261 N. Y. 661), the judgment of conviction should be reversed and a new trial granted. All concur. (Appeal from a judgment convicting defendant of the crimes of assault, second degree, and carnal abuse.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.

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Judgment of conviction reversed on the law and facts and a new trial granted. Memorandum: Under the circumstances before us and in view of the presumption of law that a child under the age of twelve years is not competent to be sworn as a witness (People v. Klein, 266 N. Y. 188), the court was called upon to conduct a proper preliminary examination of the witness to determine whether or not the presumption of disqualification had been overcome. In our opinion the preliminary examination of the nine-year-old complainant was quite inadequate. We also feel that the charge was inadequate in that the court failed, among other things, to marshal the evidence more fully. Mere recitation of the crimes charged without further explanation of the facts which would or would not support a verdict of guilty was insufficient. (People V. Becker, 210 N. Y. 274; People v. Fanning, 131 N. Y. 659, 663; People V. Odell, 230 N. Y. 481). Moreover, we reach the conclusion that under the decisions in People v. Slaughter (278 Ú. Y. 479); People v. Berner (288 N. Y. 599), and People v. Ghurgin (261 N. Y. 661), the judgment of conviction should be reversed and a new trial granted. All concur. (Appeal from a judgment convicting defendant of the crimes of assault, second degree, and carnal abuse.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.

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Bluebook (online)

283 A.D. 844, 128 N.Y.S.2d 407, 1954 N.Y. App. Div. LEXIS 5474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-birch-nyappdiv-1954.

Opinion

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