Opinion
December 29, 1942.
Appeal from Chenango County Court.
On the facts the proof was clearly sufficient to justify the jury in finding that defendant's guilt was established beyond a reasonable doubt. Defendant raises but two issues on appeal: (1) that the District Attorney's summation was in part inflammatory and prejudicial; (2) that the trial justice erred in denying defendant's motion for a new trial made on the ground of some colloquy between witnesses in the presence of some jurors. While we do not approve of all the District Attorney said in his summation nevertheless we do not feel that the remarks complained of were so prejudicial as to require a reversal of the conviction. The colloquy in question is alleged to have occurred between Lydia Beam, a witness for the People, and her daughter, Doris Beam, who lived with defendant and was a witness for him. Both witnesses testified on the trial and their relationship was a matter of record, as was also the relationship between the daughter and the defendant. Moreover there is no evidence in the record as to what was said between the two witnesses when they met, or that any juror heard any part of their conversation. Judgment of conviction affirmed.
I dissent and vote to reverse the judgment of conviction on the ground that the remarks of the District Attorney were prejudicial and inflammatory. The trial court made a serious error in permitting such an unwarranted license of tongue.