Opinion
May 14, 1943.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment of conviction reversed on the law and facts as a matter of discretion and a new trial granted. Memorandum: The evidence is sufficient to sustain the judgment appealed from and it would be our duty to affirm were we not convinced that, upon the whole case, the defendant did not have a fair trial. Under the peculiar facts of this trial we think the learned Trial Judge abused his discretion and committed reversible error in denying the defendant's request for a reasonable adjournment so as to enable him to produce his alibi witnesses from a distant state. Other alleged errors are called to our attention but we do not deem it necessary to consider them. The interests of justice require that the defendant be given a new trial. All concur, except Crosby, P.J., who dissents and votes for affirmance. (The judgment convicts defendant of the crime of robbery, first degree.)