
    The People of the State of New York, Respondent, v. Edward Foller, Appellant, and Another, Defendant.
   Judgment of conviction of the County Court of Nassau county and orders denying motions to set aside verdict and for a new trial and for an arrest of judgment reversed upon the law and the facts and a new trial ordered because of errors of law in the admission of evidence at folios 144-147, 243, 244, 342-347, 349, 352, admission of People’s Exhibit 4, and of the court’s refusal to instruct the jury to disregard the statement of the district attorney in his summation at folios 459-461. These errors were highly prejudicial to defendant and were not such as come under the provisions of section 542 of the Code of Criminal Procedure. Order denying motion for a new trial upon the ground of newly-discovered evidence reversed upon the law and the facts, and motion granted. That the witness Loatwell was mentally defective was unknown to this defendant at the time of trial although proceedings for his commitment were being conducted at that time. The chief proof against defendant came from the lips of this witness. The jury might have rendered a different verdict had they known his defective mental condition. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.  