Opinion
May 31, 1949.
Appeal from County Court, Nassau County.
Judgment reversed on the law and a new trial ordered. The District Attorney concedes it was error for the court to charge that the jury could determine whether there was unnecessary delay in arraigning the defendant. ( People v. Snyder, 297 N.Y. 81.) It cannot be said that, if properly instructed that there was, as matter of law, unnecessary delay, the jury would have given the same weight to the testimony of the troopers who had delayed the arraignment. There is no certainty that all the jurors in arriving at the verdict found as a fact that there was undue delay and weighed the testimony as to the confession on such finding. The error was not, therefore, harmless. There was no error, however, in permitting the District Attorney to cross-examine defendant as to what questions were put to him and what answers he gave as to the reason for his discharge from the Navy. The defendant asked for a preliminary determination of whether his confession had been induced by threats and assaults. The People were entitled to prove all that defendant said and did during the examination to show his state of mind and that time was consumed in questions and answers rather than in assaults upon defendant. The charge in reference to the alibi defense would not warrant a reversal, in view of the repeated statements by the Trial Judge that the defendant had no duty to prove anything. Were it not for the error in the charge as to delayed arraignment, the findings of fact implicit in the verdict of the jury would be affirmed. Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.