Opinion
Argued June 10, 1942
Decided July 29, 1942
Appeal from the Kings County Court, LEIBOWITZ, J.
Alfred A. Duffy, Louis E. Drago and Samuel Goldstein for Carlo Barone, appellant.
Samuel Bader and Harry G. Anderson for Dominick Grippo, appellant. William O'Dwyer, District Attorney ( Henry J. Walsh and Thomas Cradock Hughes of counsel) for respondent.
In spite of the attempt of the trial judge to protect the defendant Grippo, the behavior of the co-defendant Barone at the trial made a fair consideration of the evidence against Grippo by the jury impossible.
As to the defendant Barone, the judgment of conviction should be affirmed.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
As to the defendant Grippo, the judgment of conviction should be reversed and a new trial ordered.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY and DESMOND, JJ., concur; FINCH, LEWIS and CONWAY, JJ., dissent.
Judgments accordingly.