Opinion
April 10, 1942.
Appeal from Court of General Sessions of the County of New York, MULLEN, J.
Peter L.F. Sabbatino of counsel [ Edward J. Fontana with him on the brief], for the appellant.
David DuVivier of counsel [ Stanley H. Fuld with him on the brief; Frank S. Hogan, District Attorney], for the respondent.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
The charge of the court, urging the jurors to agree upon a verdict, included the statement "It isn't important what verdict it is. It is that you arrive at a verdict if you possibly can." That statement constituted error which requires the reversal of the judgment. Although the attention of the court was subsequently directed to the error by a motion for a mistrial, it was not corrected and may have influenced certain of the jurors to agree upon a verdict in which they would otherwise not have concurred.
The case was a doubtful one, as the jury appears to have realized. At the time of the erroneous statement the jury had been unable to agree after deliberation of more than thirteen hours. It rendered its verdict within two hours thereafter. We cannot say that this statement to the jury, which the court declined to retract or correct, may not have influenced certain of the jurors to surrender their belief, sincerely entertained, that the guilt of the defendant was not established beyond a reasonable doubt.
The judgment of conviction should be reversed and a new trial ordered.
Judgment unanimously reversed and a new trial ordered.