Opinion
March 18, 1938.
Judgment of the County Court of Nassau county convicting the defendant of the crime of robbery in the second degree, and orders, affirmed. The proof in the case, especially the testimony of Teresa Franzese, contains such other evidence as tends to connect the defendant with the commission of the crime as required by section 399 of the Code of Criminal Procedure.
Accepting the testimony of Mrs. Franzese as true, it is not "such other evidence as tends to connect the defendant with the commission of the crime." (Code Crim. Proc. § 399.) The strongest inference that can be drawn from the testimony of Mrs. Franzese is that the appellant had knowledge or information about the crime which would be detrimental to those then under arrest, charged with the crime. Such information might have been acquired innocently and subsequent to the commission of the crime. When evidence can be construed as pointing toward the accused's innocence as well as toward his guilt, the inference of innocence must be drawn. ( Matter of Irving, 198 App. Div. 414, 416.)