Opinion
March 11, 1953.
Appellant was convicted of the crime of rape in the first degree, after a trial by jury in the County Court of Franklin County. We think the evidence was sufficient to sustain a conviction of the crime of rape in some degree, but an incident occurred during the trial which we feel compelled to hold deprived appellant of a completely fair and impartial trial. Appellant had signed a written statement which recited certain acts of familiarity and indecency with complainant. He claimed he signed the same under the compulsion of duress exercised by State troopers. The statement was admitted in evidence and the Trial Judge very properly submitted to the jury the issue of whether it was voluntarily made. However, in his charge to the jury the Trial Judge referred several times to the statement as a confession. This was misleading and prejudicial, and may well have affected the jury's verdict. A careful reading of the statement shows that it was in no sense an admission by appellant of the crime of rape in any degree, and this should have been made plain to the jury. Such prejudicial error was, in our opinion, material, especially in view of the fact that different degrees of the crime charged were involved. Appellant was not sentenced in conformity with the requirements of sections 2010 and 2189-a of the Penal Law, but that omission is of no moment now since we have concluded to reverse the conviction on the merits. Judgment of conviction reversed, on the law and facts, and a new trial directed. Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ., concur.