Opinion
October 6, 1949.
Present — Taylor, P.J., McCurn, Love, Vaughan and Piper, JJ.
Judgment of conviction reversed on the facts and in the interests of justice, and a new trial granted. Memorandum: We find in the record evidence sufficient to justify submission to the jury of the question of defendant's guilt of the misdemeanor of fraudulently selling chattel mortgaged property in violation of section 940 of the Penal Law. We think, however, that the learned Trial Judge failed to adequately instruct the jury on the question of defendant's criminal intent. The jury might well have been told that "An honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the defendant is prosecuted innocent, would be a good defense." ( People ex rel. Hegeman v. Corrigan, 195 N.Y. 1, 12.) In our opinion, the interests of justice will be best served by granting the defendant a new trial. All concur. (The judgment convicts defendant of the crime of fraudulently disposing of mortgaged property.)