
    The People of the State of New York, Respondent, v. Joe Louis Howard, Appellant.
   Judgment unanimously reversed on the law and facts and a new trial granted in accordance with the Memorandum. Memorandum: Evidence adduced at the preliminary hearing by the defendant and not controverted clearly established that the defendant was insane and a mental defective at the time he made certain statements to the police later used on the trial. The failure of the People to sustain the burden of proving beyond a reasonable doubt that such statements were the product of a rational and meaningful act of volition required the suppression of such statements by the court (see Blackburn v. Alabama, 361 U. S. 199). The failure of the court to suppress the statements was prejudicial error requiring a reversal of the judgment of conviction. The indictment being a one-count indictment in common-law form and a charge of common-law murder as well as felony murder having been submitted to the jury, the jury’s finding of guilt of murder first degree while in the act of committing a felony without a finding as to common-law murder precludes a retrial on common-law murder. (Appeal from judgment of Monroe County Court, convicting defendant of murder, first degree.) Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.  