
    The People of the State of New York, Respondent, v. Francis Carroll, Appellant.
   Judgment of the County Court of Suffolk county convicting defendant of the crime of rape in the first degree, and order denying motion to set aside the verdict and for a new trial, reversed on the law and a new trial ordered. The defendant did not have a fair trial. The remarks of the assistant district attorney and the reading in evidence of the former conviction in this action, as well also as the determination in this court by a divided vote, were highly prejudicial. In view of the fact that the ease has been twice tried before the county judge, it is suggested that the district attorney move for the removal of the cause to the Supreme Court. Lazansky, P. J., Hagarty, Carswell and Adel, JJ., concur; Davis, J., dissents and votes to affirm. The guilt of the defendant was established by the verdicts of two juries on separate trials, so that I have no doubt on the subject. Under the circumstances, the errors were not prejudicial, and the judgment of conviction should be affirmed under the provisions of section 542 of the Code of Criminal Procedure.  