Opinion
July, 1931.
Judgment of conviction and order of the County Court of Kings county affirmed. No opinion.
Young, Carswell, Scudder and Davis, JJ., concur;
The case was a close one on the facts. The defendant was prejudiced in the following respects: By the remark of the court at folio 288, "That's enough to show that an outsider did not start it;" the question asked by the court re origin of the fire (fols. 301, 302); the testimony of witness Tiederman (fol. 309) that the fire was not caused by electric wiring, although he had made no examination thereof; testimony adduced by the court that, if candles were used, they were consumed by the fire (fols. 235, 236, 272); the court's statement (fols. 375) that the reason that "Tarlowsky [jointly indicted with defendant] is not here is because he cannot be found," of which there was no proof; the failure of the court to charge properly as to the presumption of innocence (fols. 380, 381); the statement of the court (fol. 384), "This is, so far as the witnesses are concerned, a one-sided case. Not a single witness was put on the stand by the defendant," justifying the jury in drawing an erroneous inference from defendant's failure to take the stand; the error in the charge at folio 387; the charge of the court at folio 395, "Likewise, the smell of kerosene, saturating, as alleged, practically everything," which was not in accordance with the proof; the charge of the court at folio 402 re motive when there was no proof of defendant's financial condition; the charge of the court (fol. 405) as to when arson would be murder in the first degree. While defendant did not take an exception in each instance, the errors were such as to compel the conclusion that defendant did not have the fair trial to which he was entitled.