People v. Baumstein , 5 A.D.2d 794 ( 1958 )

Appellant was convicted by a City Magistrate sitting as a Court of Special Sessions of the City of New York, Borough of Queens, of violating section 986 of the Penal Law (book-making) and was sentenced to pay $50 or to serve 10 days. The fine was paid. The appeal is from the judgment of conviction and from the sentence. Judgment reversed on the law and the facts, information dismissed, and fine remitted. The proof fails to establish guilt beyond a reasonable doubt. After appellant had been found guilty, evidence was presented by and on behalf of his codefendant, without participation by appellant in such portion of the trial. Accordingly, such evidence has no bearing on this appeal. No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction. Nolan, P. J., Belddck, Ughetta and Hallinan, JJ., concur; Murphy, J., dissents and votes to affirm the judgment of conviction, with the following memorandum: Appellant had $88 in bills on his person, also a book which the officer characterized as a “pay off”, and a slip with names of horses on the reverse side, they being horses that had run the previous day. Also found on the appellant was a National Racing Program. Under all the circumstances there was sufficient evidence pointing to his guilt.