Opinion
October 31, 1960
Appeal by defendant: (1) from a judgment of the County Court, Dutchess County, rendered May 26, 1959, convicting her, after a jury trial, of perjury in the second degree, and sentencing her to serve a term of 60 days; and (2) from each and every intermediate order. Judgment reversed on the law and a new trial ordered. The findings of fact implicit in the jury's verdict are affirmed. With respect to the fundamental rule applicable to prosecutions for perjury, the Trial Judge failed to charge the jury that a conviction for perjury may not rest only upon the uncorroborated testimony of a single witness ( People v. Doody, 72 App. Div. 372, 383, affd. 172 N.Y. 165; People v. Quinn, 228 App. Div. 822; People v. Henry, 196 App. Div. 177, 183; People v. Gleason, 285 App. Div. 278, 286). Although there were no exceptions or requests to charge on behalf of the appellant, in our opinion the failure to charge that rule was prejudicial to appellant's rights and requires a new trial in the interests of justice (Code Crim. Pro., § 527), particularly since the corroborating evidence was of slight probative value and might well have been disregarded by the jury if they were instructed as to the rule to be applied. We also regard as error the instruction to the jury to the effect that their verdict must be the same under each of the two counts of the indictment (cf. People v. Moore, 261 App. Div. 876). No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment of conviction. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.