Opinion
April, 1930.
Judgment of conviction reversed upon the law and the facts and a new trial granted. Hagarty and Scudder, JJ., concur, being of opinion that despite the fact that the confession of Fagan was excluded as against this defendant, the reference thereto by the district attorney in his summation was prejudicial even though the court stated that it would refer to the exclusion of this proof in its charge, and did refer to it; Lazansky, P.J., concurs upon the ground stated and upon the further ground that the guilt of this defendant was not established beyond a reasonable doubt; Rich and Kapper, JJ., dissent and vote to affirm.