Opinion
December, 1919.
Judgment of conviction reversed and new trial granted. Held, 1. That the testimony of Flannigan was not competent, either as tending to establish the charge of perjury, of which the defendant was convicted, or upon the credibility of the defendant's testimony, and it was error for the trial court to submit the same to the jury for their consideration. 2. That after the defendant had claimed his privilege in refusing to answer concerning another charge, the district attorney should not have spread upon the record the details of such alleged crime, and to do so was prejudicial. 3. That it was proper to ask the witness Hall, upon cross-examination, whether he had stated to defendant's brother that unless the civil actions were dropped he would make the charge of perjury against the defendant. 4. That the tests made to show that the defendant could not have heard the conversation between the chief of police and Birney were improperly received, because it did not appear that the conditions were similar respecting the loudness or tone of voice and other conditions to make the evidence competent. ( People v. Fiori, 123 App. Div. 174, 185, 196.) This disposition makes it unnecessary to pass upon any of the other questions raised. All concur, except Lambert, J., who dissents and votes for reversal and dismissal of the indictment.