Opinion
May 12, 1944.
Appeal from County Court of Tompkins County.
Appellant was indicted for grand larceny, first degree, and forgery, third degree. It was claimed that she embezzled $1,696.38 from her employer and that she kept false accounts in order to conceal her theft. The jury disagreed as to the grand larceny count in the indictment, but found appellant guilty of the forgery count. While the jury was deliberating it wrote a note to the Trial Judge asking if it might find a verdict of guilty on the forgery count without finding the same verdict on the larceny count. The note was delivered to the Judge while in chambers, and he wrote an answering note to the jury stating that it was within its province to find a different verdict upon each count. The jury was not called in for such further instructions and the District Attorney, with commendable frankness, concedes that defendant's attorney, who was present when the note was received by the Judge and the answer written, took exception to the procedure. We know of no authority for such procedure. If the jury desired further instructions it should have been recalled and such instructions given in open court with full opportunity to the defendant to be present, to take exception to the instructions as given and to request further instructions. Judgment of conviction reversed on the law and facts and a new trial granted. Bliss, Heffernan and Brewster, JJ., concur; Hill, P.J., and Schenck, J., dissent and vote to affirm under section 542 of the Code of Criminal Procedure.