People v. Smith

258 A.D. 800, 15 N.Y.S.2d 538, 1939 N.Y. App. Div. LEXIS 7006

Opinion

The People appeal from an order of the County Court of Orange, county dismissing an indictment against the defendant for manslaughter in the first degree and manslaughter*^ the second degree. Order reversed on the law,, motion denied, and the indictment reinstated. There was sufficient evidence submitted to .the grand jury which, unexplained or uncontradicted, warranted the grand jury in finding the indictment. (Code Grim. Proc. § 258.) It is conceded by the district attorney that illegal evidence against respondent, consisting of a charge of larceny, without conviction, was improperly received in evidence before the grand jury. In the opinion of this court,, the reception of that testimony as well as the record of his brother, a codefendant, was harmless in view of the circumstances surrounding the altercation which led to the killing. Lazansky, P, J., Carswell, Johnston, Adel and Taylor, JJ., concur.