court. As a matter of fact, the fourth point in the brief of the learned district attorney before that court (p. 121) states as a proposition: "It was not error for the court not to charge as a matter of law that the witness Mancini was an accomplice.' The case was presented both before the trial court and upon the appeal with Mancini occupying merely the position of a material witness held under bail and not as an accomplice. He was produced before the jury as apparently, and on this motion is asserted to be, one who was merely a spectator or "innocent bystander" to the criminal conspiracy, not as a principal then under secret indictment as a co-conspirator. By some arrangement he was not required to plead to the indictment until June 25, 1918, after the trial of this defendant, and then he pleaded not guilty, which plea on December 13, 1918, he changed to a plea of manslaughter in the second degree, and thereupon his sentence was suspended. In reality his position was similar to that of the three witnesses in the first Becker trial, who were concededly implicated with him and obtained immunity by giving evidence tending to convict the defendant in that case. That conviction was reversed (People v. Becker, 210 N. Y. 274) largely because the court held that it was questionable whether there was any testimony corroborating the testimony of these witnesses as to the guilt of the defendant. Upon the appeal from the second trial the court held that there was evidence in the case, other than that of the accomplices, tending to connect the defendant with the commission of the crime.

In reviewing the second trial the Court of Appeals said: "The jury were properly warned that in weighing the words of Rose, Vallon and Webber, the fact that these witnesses had been granted immunity provided they did not actually fire the fatal shots, should be taken into account, and the further fact that they had an interest to shield themselves in the testimony they should give." (215 N. Y. 126, 140, 33 N. Y. Crim. 193.) In the case at bar no such warning was given with

regard to Mancini, and in that respect the Becker jury was in a better position to pass upon the credibility of the witnesses referred to than the jury in the present case if, as seems not unlikely, an arrangement for immunity had been made with Mancini.

The assistant district attorney who opposed the present application contends that even without regard to the testimony of Mancini there was sufficient corroboration of the story told by Daniello to support the conviction of the defendant, but he does not specify how otherwise it was corroborated. I regret that I cannot concur in the contention. Such corroboration as there was came from the mouths of other members of the conspiracy who were equally steeped in the crimes committed. If, then, we regard Mancini as an accomplice in the crime, his testimony is valueless as corroboration of the testimony given by Daniello, also an accomplice. I am accordingly forced to the conclusion that the jury would in all probability not have found a verdict of guilty against the defendant if the real facts which are now known concerning Mancini's indictment as a principal in one of the murders had been known to the trial court and explained, in its legal effect, to the jury. Indeed, I am not at all sure that if the facts concerning his indictment and the suspension of his sentence had been disclosed to the Court of Appeals a different result would not have been reached in that court.

There remain for consideration certain matters involved in the decision of this application which are discussed in the brief submitted in opposition by the district attorney. He cites the case of People v. Priori (164 N. Y. 459), in which the Court of Appeals declared the rule applicable to such a motion as this as follows: "Newly discovered evidence in order to be sufficient must fulfill all the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) It must have been discovered since the trial; (3) It must be such as could not have been discovered before the trial by

the exercise of due diligence; (4) It must be material to the issue; (5) It must not be cumulative to the former issue; and (6) it must not be merely impeaching or contradicting the former evidence." (P. 472.)

As to the first of these conditions I assume that the language employed by the court is equivalent to the language used in section 465 of the Code of Criminal Procedure, viz.: "Where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict.” This phase of the case has already been considered and requires no further comment. As to the second and third conditions, the moving affidavit of defendant's counsel states: "At the close of the trial of this defendant, the court, not being aware that Mancini had been indicted in this conspiracy and the counsel for the defendant and defendant not having been able to obtain such information, the following discussion took place between the trial court, the trial district attorney and the counsel for the defendant." And in his memorandum, submitted to the court, he says that he had stated under oath that he did not know the fact that Mancini had been indicted in this conspiracy. The district attorney does not meet these statements with anything more substantial than surmises that defendant and his counsel must have known of Mancini's indictment for the murder of Ferrazano.

The question of Mancini's participation in the conspiracy as a principal as affecting the right of the prosecution to use him as a material and disinterested witness to corroborate Daniello was a close one. Good faith, not alone to the court presiding at the trial, but also to the jury and to the defendant. on trial for his life, demanded that the district attorney reveal the fact to them, if he was aware of it, that Mancini was under indictment as a principal and not merely held as a material witness under bail. Moreover, if it were the fact, as the defendant now claims, that an agreement then existed between

the district attorney's office in New York and Brooklyn to permit Daniello and Mancini to plead to crimes of a lesser degree and to obtain suspended sentences in consideration of giving evidence against this defendant upon his trial, then that scrupulous good faith which is expected of a prosecuting officer required a disclosure of the fact of the indictment of Mancini so that court and jury might judge the weight to be given to his evidence in the light of such agreement. On the contrary, however, it appears, as has already been stated, that Mancini had been charged with the crime of murder of one of the three members of the Morello gang, whose death was one of the objects of the conspiracy. This had been done by a secret indictment on the same day on which the defendant herein had been indicted for the murder of another one of the three victims of the conspiracy. The statement to this effect in the moving affidavit is not contradicted by the answering affidavits, and, as to its having been secret, it is corroborated by the affidavit of Higgins, a county detective, who avers that the deputy clerk of the Court of General Sessions of New York City informed him that the original indictment was secret by order of the court and that the names of the other defendants could not be disclosed to him because some of them had not been apprehended. Under all these circumstances I am of the opinion that the defendant has met the conditions stated as to discovery and due diligence as to the indictment of Mancini.

As to the fourth, fifth and sixth conditions above stated: The evidence in question is certainly material (see 5 Chamberlayne Ev., § 3754), and it was not cumulative in its nature, nor does it merely impeach or contradict the former evidence.

To my mind the fact that no affidavit by the learned district attorney or his trial assistant is submitted in contradiction of the statement that the fact of Mancini's indictment was known to the district attorneys of Kings and New York counties at the time of defendant's trial is significant. Their silence upon this point seems quite remarkable in view of the serious charge

made in the moving affidavit.

In my opinion the answering

affidavits are singularly unsatisfactory and incomplete, and were it not for that fact, I should have less difficulty in reaching a conclusion more satisfactory to my own mind and conscience and one which would not involve the expense and labor of a new trial of this defendant.

In the light of all that has been stated in this memorandum, which I fear only inadequately covers the matters involved in this application, I have concluded, in the exercise of the judicial discretion which the law reposes in the court, to grant a new trial to this defendant.

Motion granted.

COUNTY COURT - DELAWARE COUNTY.
October, 1919.

THE PEOPLE v. EDWARD M. WILLI.

(109 Misc. 79.)

(1) LIQUOR TAX LAW-CONSTITUTIONALITY OF SECTION 30(P).

A statute should be construed so as to effectuate the legislative intent if possible.

The Legislature intended that the provisions of subdivision P of section 30 of the Liquor Tax Law should only operate prospectively.

The first sentence of subdivision P of section 30 of the Liquor Tax Law, that "It shall not be lawful," etc., should be read as though it declared "It shall not hereafter be lawful for any person, etc., to sell, expose for sale, give away liquors, etc., if they shall have knowledge or reason to believe that such liquors are sold, etc., to a person in a city or town where the business of trafficking in liquors is prohibited."

(2) SAME.

It is unlawful under subdivision P of section 30 of the Liquor Tax Law to possess liquors in dry territory unless the same is prescribed by a physician, and though an indictment charging a violation of the