People v. Carder

(dissenting in part). With the rest of the court I concur to affirm the judgment of conviction of defendant Carder. However, with regard to defendant Monaghan, I think it was impossible for the jury to keep out of *1040their minds Carder’s confession fully implicating Monaghan in the crime no matter how often they were told by the court that Carder’s confession could be considered only on the question of Carder’s own guilt; and accordingly severance should have been granted (People v. Rossi, 270 App. Div. 624, 629; People v. Feolo, 282 N. Y. 276, 281, 282). This basic difficulty of limiting the jury’s consideration of Monaghan’s guilt only to the evidence properly admitted against him is pointed up by the momentary lapse of the learned trial court in its charge to the jury in which he referred to “ all the testimony in the case ” in considering Monaghan’s guilt.

I dissent in part and vote to reverse and direct a new trial as to defendant Monaghan.

Peck, P. J., Callahan, Breitel and Bastow, JJ., concur in decision; Dore, J., dissents in part and votes to reverse and direct a new trial as to the defendant John Monaghan, in opinion.

Judgment as to the defendant Richard Wayne Carder unanimously affirmed. Judgment as to the defendant John Monaghan affirmed. No opinion.

Judgment appealed from affirmed.