People v. O'Brien

213 A.D. 877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1925
• Status: Published

Opinion

Judgment of conviction of the County Court of Nassau county reversed upon the law and the facts, and a new trial ordered. The reception of the statement, People’s Exhibit 11, was prejudicial error because it contained statements of extraneous wrongdoings on the part of other members of the family which were prejudicial to the defendant’s rights And to which last named facts the witness did not testify upon having his recollection refreshed. While it was competent for the district attorney to refresh the recollection of the witness (People v. Kelly, 113 N. Y. 647), the statement, however, could not be introduced in evidence. The proof of the possession of other stolen goods was competent on the question of guilty knowledge (See People v. Doty, 175 N. Y. 164; 17 R. C. L. 88), but such proof must be limited to goods shown to have been actually stolen. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur.