Opinion
Argued March 30, 1931
Decided April 14, 1931
Appeal from the Supreme Court, Appellate Division, First Department.
Joseph M. Proskauer, J. Alvin Van Bergh and Solomon H. Lifschitz for Antonino Montforte, appellant.
Frank Oliver and Samuel Gottlieb for Michael McCloskey, appellant. Charles B. McLaughlin, District Attorney ( Sol Boneparth, Samuel J. Foley and Herman J. Fliederblum of counsel) for respondent.
A witness called by the defendant McCloskey was asked by the district attorney upon cross-examination if he had refused to sign a waiver of immunity when called before the grand jury. The attorney for the defendant McCloskey did not object to the question, but stated, "I want him to answer." The attorney for the defendant Montforte objected to a similar question asked the same witness. The objection was overruled and an exception taken by the attorney for Montforte. The learned trial justice refused to charge "that the jury may draw no unfavorable inference from the fact and that the refusal in no way affected his credibility." To the refusal to charge as requested the attorney for Montforte duly excepted. There was, therefore, no objection taken by the defendant McCloskey either to the receipt of the evidence or the refusal to charge as requested. The attorney for the defendant Montforte took exceptions which raised the question. We are satisfied, however, that the error in the ruling, if any, was so trifling in its effect as to the only defendant who excepted that it could not have affected the finding of the jury and must be disregarded under section 542 of the Code of Criminal Procedure. We have examined the other questions raised by the counsel for defendants and do not find any error which requires the reversal of the judgment of conviction.
The judgment of conviction should be affirmed.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN and HUBBS, JJ., concur; KELLOGG and O'BRIEN, JJ., dissent and vote for reversal as to the defendant McCloskey on the ground that his guilt is not established beyond a reasonable doubt.
Judgment affirmed.