
    The People of the State of New York, Respondent v. Russell Merrihew, Appellant.
   Appeal from a judgment of conviction of County Court, Ulster County. The record as now settled by the Trial Judge does not show defendant’s presence before the court when the additional instructions were given by the court to the jury, and we infer from the proceedings taken on settlement of the record that he was not then present. (Code Grim. Pro., § 427; People v. Silver, 234 App. Div. 871.) On the new trial the question whether the exhibit offered in evidence was an “ instrument or weapon ” of the “ kind commonly known as a blackjack ” (Penal Law, § 1897, subd. 1) should be specifically submitted to the jury as a fact question, as well as the question whether, aided by the statutory presumption, the People had established as a fact defendant’s possession of the instrument by showing it was in the trunk of his car. Judgment reversed on the law and facts and new trial ordered. Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ., concur.  