December 24, 1937.
Appeal from County Court of Kings County.
Although there was ample evidence to sustain the conviction, the trial judge erred in a substantial way prejudicial to the appellant, (1) in excluding testimony by Officer McCaffrey as to appellant's declarations at the time of the arrest and while defendant was in possession of the alleged stolen goods; such declarations were admissible as part of the res gestoe (Wharton's Criminal Evidence [11th ed.], § 493); (2) in his charge on the subject of the appellant's failure to call as a witness his alleged accomplice, Manning ( People v. Kearns, 214 App. Div. 804. See People v. Ferguson, 245 id. 837; People v. Kilroe, 201 id. 549, 555); (3) in his charge on the subject of the weight to be given to the testimony of defendant as an interested witness ( People v. Viscio, 241 App. Div. 499, 502; People v. Gerdvine, 210 N.Y. 184. See People v. Cohen, 223 id. 406, 422). Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.