Opinion
June 27, 1945.
Present — Taylor, P.J., Dowling, Harris, Larkin and Love, JJ.
Judgment of conviction affirmed.
All concur, except Harris, J., who dissents and votes for reversal and for granting a new trial in the following memorandum:
Proof as to other crimes in the vicinity of the killing of Mrs. Kennedy was received without proper foundation. In its charge, the court refers to such crimes as part of the res gestae. Such testimony may have been admissible in rebuttal but only to substantiate the truth of the contents of the confessions. The ruling of the trial court and its charge as to a violation of section 165 of the Code of Criminal Procedure, was insufficient to advise properly the jury. ( People v. Malinski, 292 N.Y. 360, revd. in part sub nom. Malinski v. New York, 324 U.S. 401.) With the above in mind, it cannot be said that the defendant was not prejudiced on his trial. (The judgment convicts defendant of the crime of murder, first degree, with a recommendation of leniency.