People v. Gastone

[52]

CONREY, P. J.

Defendant was convicted of the' crime of grand larceny. He appeals from the judgment and from an order denying his motion for a new trial.

On behalf of appellant it is claimed that the verdict is contrary to the evidence in that the evidence is not sufficient to support the verdict; that the verdict is “contrary to law in that the evidence taken does not establish as matter of law that the defendant committed the offense found by the jury by the verdict.” These contentions are without merit. The testimony of the complaining witness fully described the facts constituting the crime charged and identified the defendant as the guilty person. Our attention is not directed to any errors claimed in the course of the trial, either in the reception or rejection of evidence or in the instructions given to the jury. The facts found as indicated by the verdict of the jury are entirely sufficient to establish the commission of the offense by the defendant.

The only other point made in support of the appeal relates to alleged misconduct on the part of the district attorney at the trial of the case. The defendant testified as a witness in his own behalf. In giving that testimony he stated that at the time of his arrest the complaining witness, Bppiek, was present; that Bppiek took a picture from his pocket and said, “He is the man.” On cross-examination of the defendant the district attorney showed to the witness a photograph and asked if that was the picture which he saw at the time referred to in his direct testimony, and if he had seen that picture before. The witness having replied in the negative to these two questions, the district attorney asked, “Do you know whose picture that is?” The witness replied, “That is me.” The district attorney then offered the picture for “identification,” but it was not received in evidence and was not referred to any further during the trial.

The defendant moved for a new trial on various grounds, including that of misconduct of the district attorney prejudicial to the defendant occurring during the progress of the trial. In support of this motion affidavits were introduced with respect to the conduct of the district attorney at the time of the above-mentioned cross-examination of the defendant with reference to the photograph. The photograph of the defendant did not show him in prison garb, but it