People v. Levine

Appellate Division of the Supreme Court of New York

People v. Levine

265 A.D. 513, 39 N.Y.S.2d 938, 1943 N.Y. App. Div. LEXIS 6339

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

DecidedFebruary 26, 1943

StatusPublished

This text of 265 A.D. 513 (People v. Levine) 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. Levine, 265 A.D. 513, 39 N.Y.S.2d 938, 1943 N.Y. App. Div. LEXIS 6339 (N.Y. Ct. App. 1943).

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Per Curiam.

Though defendant makes no complaint concerning that portion of the court’s charge which permitted the jury to find defendant guilty of perjury if any one of the seven assignments stated in the indictment was supported by the evidence, he urges that the submission of the 4th, 5th, 6th and 7th assignments was error. As to these four specifications, the evidence did not support the charge of false swearing. Where the attention of the court on the trial was specifically called to the question and the court upon objection by the defendant refused to withdraw from the consideration of the jury the assignments which had not been sustained by the proof, this court cannot disregard the, error. Particularly is this true since at the trial the prosecutor in effect conceded that these specifications should not be submitted to the jury. (Wood v. People, 59 N. Y. 117, 122; People v. Root, 94 App. Div. 84, 91.)

We think, too, that the court’s charge was prejudicial. At the outset the court informed the jury that the Legislature had defined perjury and ‘ ‘ they have done something about it. ’ ’ Then the court went on to say “ And the Grand Jury has submitted this indictment to you, and they have done something about it. They accused this defendant of a crime, and the District Attorney, through the witnesses, has submitted the evidence to you. So they have done something about it, and you, as the sole and exclusive judges of the facts, must do the rest. After all, you see, the true administration of justice resides in the jury box.” This language, which the court did not correct, must have given the jury the impression that the court was directing it to complete the last step in the prosecution by bringing in a verdict of guilty. Though the court also charged the jurors that they were sole and exclusive judges of the facts, we do not think the error was cured. In People v. Kohn (251 N. Y. 375, 379) the court said: “ Certainly a jury, which must find a verdict of guilt, in obedience to instructions, is not a judge of the fact, despite all wordy assurances to the contrary voiced by the trial judge. We think that the instructions involved serious error, and that the judgment of conviction must be reversed.” The court’s charge [515]*515“ should he the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals.” (People v. Odell, 230 N. Y. 481, 487 ; People v. Kinney, 202 N. Y. 389, 397.)

The judgment should, accordingly, be reversed and a new trial ordered.

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Per Curiam.

Though defendant makes no complaint concerning that portion of the court’s charge which permitted the jury to find defendant guilty of perjury if any one of the seven assignments stated in the indictment was supported by the evidence, he urges that the submission of the 4th, 5th, 6th and 7th assignments was error. As to these four specifications, the evidence did not support the charge of false swearing. Where the attention of the court on the trial was specifically called to the question and the court upon objection by the defendant refused to withdraw from the consideration of the jury the assignments which had not been sustained by the proof, this court cannot disregard the, error. Particularly is this true since at the trial the prosecutor in effect conceded that these specifications should not be submitted to the jury. (Wood v. People, 59 N. Y. 117, 122; People v. Root, 94 App. Div. 84, 91.)

We think, too, that the court’s charge was prejudicial. At the outset the court informed the jury that the Legislature had defined perjury and ‘ ‘ they have done something about it. ’ ’ Then the court went on to say “ And the Grand Jury has submitted this indictment to you, and they have done something about it. They accused this defendant of a crime, and the District Attorney, through the witnesses, has submitted the evidence to you. So they have done something about it, and you, as the sole and exclusive judges of the facts, must do the rest. After all, you see, the true administration of justice resides in the jury box.” This language, which the court did not correct, must have given the jury the impression that the court was directing it to complete the last step in the prosecution by bringing in a verdict of guilty. Though the court also charged the jurors that they were sole and exclusive judges of the facts, we do not think the error was cured. In People v. Kohn (251 N. Y. 375, 379) the court said: “ Certainly a jury, which must find a verdict of guilt, in obedience to instructions, is not a judge of the fact, despite all wordy assurances to the contrary voiced by the trial judge. We think that the instructions involved serious error, and that the judgment of conviction must be reversed.” The court’s charge [515]*515“ should he the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals.” (People v. Odell, 230 N. Y. 481, 487 ; People v. Kinney, 202 N. Y. 389, 397.)

The judgment should, accordingly, be reversed and a new trial ordered.

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Bluebook (online)

265 A.D. 513, 39 N.Y.S.2d 938, 1943 N.Y. App. Div. LEXIS 6339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-levine-nyappdiv-1943.

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