
    The People of the State of New York, Respondent, v. Frank Camoroto and Others, Appellants.
    Second Department,
    June 11, 1909.
    Evidence — crime—witness — contradictory testimony on preliminary examination.
    Where on the trial oí an indictment for assault, a witness who was 300 feet away from the defendants claims to have identified them by their profiles while running away, it is error to refuse to allow defendants’ counsel on cross- ■ examination to ask if, on the preliminary examination, the witness did not testify that it was foggy, that he had no clear view of the men and saw nothing but their backs.
    Appeal by the defendants, Frank Camoroto and .others,, from a judgment of the County Court of Kings county, rendered on the 4th day of June, 1908, convicting the defendants of the crime of assault in the second degree, and also from an order entered in the office of the clerk of the county of Kings on the 5th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.
    
      Thomas O. Whitlock, for the appellants.
    
      Peter P. Smith, Assistant District Attorney [ John F. Clarke, District Attorney, with him on the brief], for the respondent.
   Hirschberg, P. J.:

The judgment must be reversed for an error in ruling upon the evidence. It is true, as claimed by the respondent, that mere technical errors, not necessarily affecting the substantial rights of the appellants, should be disregarded, as provided by section 542 of the Code of Criminal Procedure, but the error presented herein does not seem to be one of that character.''

A witness was called on the trial, on behalf of the People, by whose testimony it was sought to identify the defendants. They were 200 feet away from the witness at the time. The day was rainy, and he claimed to have identified them by their profiles while they were in the act of running away. On cross-examination he was asked if he had not testified on the preliminary examination in the Magistrate’s Court that it was a foggy day, that he had no clear view of the men, and that they were so far away that he saw nothing but their backs. The defendants’ counsel stated that the object of the evidence was to prove that the witness had testified on the occasion referred to that for the reasons stated he could not identify the defendants. The court ruled that such evidence would not be allowed, and that the minutes of the lower court must be produced for the purpose of showing any difference in the testimony. The proposed evidence was vital to the defense and its exclusion was clearly erroneous. (People v. Thornton, 46 Hun, 643, 644; Oderkirk v. Fargo, 61 id. 418, 422; Wiberg v. Nassau Electric R. R. Co., 54 App. Div. 541, 543.)

The judgment and order should be reversed.

Woodward, Burr, Rich and Miller, JJ., cdncurred.

Judgment of the County Court of Kings county, convicting the appellants of the crime of assault in the second degree, and order denying motion for new trial reversed and new trial ordered.  