People v. Armstrong , 147 N.Y.S.2d 281 ( 1955 )

Appeal from a judgment of the County Court, Richmond County, convicting appellant on two counts of grand larceny, first degree, under section 1293-a of the Penal Law, and on one count of forgery, second degree, under section 881 of the Penal Law, after trial before the court and a jury, and from an intermediate order disallowing a demurrer to the indictment. Judgment and order reversed on the law and demurrer to the indictment allowed. It is ordered that the ease be resubmitted to another Grand Jury. Appellant was indicted on five counts, the first two charging him with the larceny of a certain Lincoln automobile, the third (which was found in a separate superseding indictment and consolidated with the original indictment) with the larceny of a Buick automobile, the fourth with uttering a forged registration certificate for a Mercury automobile and the fifth with uttering a forged registration certificate for the Lincoln referred to in the first two counts. A demurrer to this indictment was disallowed, and after trial appellant was convicted on the second, third and fifth counts and acquitted on the first and fourth. In our opinion, the alleged forgery of the Mercury registration contained in the fourth count, is not a crime of a character similar to the larceny of the Lincoln and Buick automobiles set forth in the first, second and third counts, and could not he included with those crimes in the same indictment under section 279 of the Code of Criminal Procedure. Its inclusion paved the way for the admission of prejudicial evidence and improper and inflammatory remarks by the assistant district attorney. The demurrer should have been allowed and the case resubmitted to the same or another Grand Jury. In any event, numerous errors occurred on the trial which deprived appellant of a fair trial, and even were the demurrer to be disallowed, the interests of justice would require a reversal and the granting of a new trial. Nolan, P. J., Wenzel, MacCrate, Schmidt, and Ughetta, JJ., concur.