People v. Kearns

214 A.D. 804

Opinion

Judgment of conviction of the County Court of Kings county reversed upon the law, and a new trial ordered. It was error for the court to indulge in the remark as to the defendant’s ability to produce on his own behalf an “ available witness,” referring to one of defendant’s companions. The law placed no such duty upon the defendant. The trial court also erred in its charge on the subject of character evidence, limiting the application of such testimony to “ a doubtful case ” and “ a close case.” This remark and charge, while not excepted to, constitute ground of error, and in our opinion call for a reversal, in the interests of justice, under section 527 of the Code of Criminal Procedure. Kelly, P. J., Jaycox. Kelby and Kapper, JJ., concur; Rich, J., dissents and votes to affirm.