People v. Demasco

147 N.E. 710, 240 N.Y. 170, 1925 N.Y. LEXIS 715

• Court: New York Court of Appeals
• Decided: April 7, 1925
• Status: Published

Opinion

Per Curiam.

The conviction of the defendant rests upon the testimony of one Marino. If Marino was an accomplice of the defendant this testimony requires to be corroborated by other evidence tending to connect the latter with the commission of the crime. The jury were told over exception that as a matter of law the witness was not an accomplice and the court refused to submit to them any question of fact on the subject. They were allowed to convict, therefore, upon his testimony alone, although they might find that it was entirely uncorroborated. Under the circumstances of the case this was error. Marino originally consented to join in the robbery. He was a party to the plans for carrying it into effect. Therefore he aided and abetted in its commission. Unless he subsequently withdrew from his association with the criminals he was obviously an accomplice. Whether or not he did so withdraw depends entirely upon a somewhat indefinite story .told by him. His character is not good and his testimony in this regard is somewhat improbable. As to this matter he was also an interested witness. It was for the jury to determine the truth of his testimony. They might believe that he was a party to the original conspiracy and yet disbelieve his statement that he later withdrew.

■ The judgment appealed from should be reversed and a new trial granted to the defendant.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment reversed, etc.