Opinion
March, 1930.
Judgment of conviction of the County Court of Queens county reversed upon the law and the facts and a new trial ordered. A careful examination of the evidence compels the view that the defendant's guilt was not established beyond a reasonable doubt. Moreover, the testimony relied upon as corroborative of the prosecution's chief witness does not corroborate that witness' testimony, so far as the character and content of his version of the conversation between himself and the defendant is concerned, the conflicting version of which conversation, as testified to by the defendant on trial of People v. Berg, is made the basis of this prosecution for perjury. This so-called corroborative testimony is just as consistent with the defendant's version of the character and content of the talk which he claims to have had with the prosecution's chief witness as it is with the character and content of that witness' version, no matter on what day that conversation was had, since that version, as given by the defendant on the Berg trial, was coupled with an assertion that no third party was present at the time that conversation was had. On the present state of the proof, the case thus reduces itself merely to an oath against an oath, which is insufficient to sustain a perjury conviction. ( People v. Stone, 32 Hun, 41, 42; People v. Doody, 72 App. Div. 372, 383; affd., 172 N.Y. 165; Underhill's Crim. Ev. [2d ed.], § 468.) Lazansky, P.J., Young, Carswell, Scudder and Tompkins, JJ., concur.