Opinion
March 13, 1951.
Appeal from Bronx County Court.
Judgment affirmed.
I dissent and vote to reverse the conviction and for a new trial upon the ground (1) that, on the theory of a conspiracy not charged in the indictment or embraced within the two substantive counts of misdemeanors, highly prejudicial evidence was received concerning acts and declarations of third persons not in the presence of the defendant and (2) that the jury was erroneously charged, in effect, that in order to find Sullivan and Cavalluzzo to have been accomplices, it would be necessary to show not only that they knew of and participated in the making of the false records as charged but also that such false records were made pursuant to a conspiracy that had as its motive an interfaith adoption.
Peck, P.J., Glennon, Cohn and Callahan, JJ., concur in decision; Shientag, J., dissents and votes to reverse, in opinion.
Judgment affirmed. No opinion.