People v. Flanagan

The defendant had testified in the Supreme Court as a witness in a civil action against the Long Island Railroad Company. He was then confronted with a written statement prepared two years before by an investigator for the railroad. Asked if it bore his signature, he first told the court that he did not remember signing it, “ I could say ‘ no.’ ” The court then said: “ It doesn’t make any difference whether you remember signing it or not; that is not my question; did you sign it? A. No. Q. Is that your signature? A. No.” If the witness did not recall his act of signing, the question whether his name was, or was not, his signature, may have become a matter of belief, or opinion; so that his answer, if wrong, may not have amounted to the crime of perjury. The signature had not been denied until the court had called for a direct answer, regardless of how far the witness could remember such signing. The peculiar situation certainly involved the rule of reasonable doubt. The learned County Court gave a special, and perhaps over-exact, meaning to the term “ convinced,” holding that if one were convinced he was beyond all doubt. In our view, however, the proofs did call for a plain charge, in substance as requested, that the jury *137should be convinced or satisfied of defendant’s guilt beyond a reasonable doubt; so that the refusal was clear error.

Hence the judgment of conviction should be reversed and a new trial ordered.

Blackmar, P. J., and Mills, J., concur; Kelly and Jaycox, JJ., vote to affirm.

Judgment of conviction of the County Court of Queens county reversed and new trial ordered.