Opinion
December 21, 1942.
Appeal from court of Special Sessions, New York County.
Present — Martin, P.J., Townley, Glennon, Untermyer and Dore, JJ.
Judgment unanimously reversed and a new trial ordered.
Upon the present record the guilt of the defendant for the violation of section 986 of the Penal Law (Cons. Laws, ch. 40) is not established beyond a reasonable doubt. The evidence fails adequately to connect the defendant with papers which contain the names of race horses and the amounts wagered thereon or the scratch sheets with pencil notations. The defendant testified that the notations on these papers were not in his handwriting and the People offered no evidence to the contrary. There is no evidence of any money received by the defendant in connection with the placing of any bet. Almost the only suspicious circumstance is the proximity of the defendant to these sheets of paper, but this, in the absence of other proof, is insufficient.
We have concluded to order a new trial rather than dismiss the information so that the People may be afforded the opportunity to establish by further proof some connection between these papers and the defendant, if such evidence exists.
The judgment of conviction should be reversed and a new trial ordered.