People v. Gernstein , 194 A.D. 983 ( 1920 )

Judgment of conviction affirmed. All concur, except Lambert and Clark, JJ., who dissent upon the grounds: First, that it was reversible error for the court to admit evidence of the declarations of one Cassidy for the purpose of establishing that the defendant entered into a conspiracy to commit the crime set forth in the indictment. It was not alleged as one of the acts or means by which the crime was committed. Second, that it was error for the court to refuse to charge that the defendant could not be convicted of the crime of burglary, third degree, for breaking out of the Fitzmauriee building, under a charge in the indictment that the crime of burglary was committed by means of breaking in. Third, that it was error for the court to refuse to charge that the defendant could not be convicted of the crime of burglary, third degree, for entering the building by means of threat or artifice, under the indictment which charged breaking into the building as the only means and act constituting the crime of burglary in the third degree.