
    The People of the State of New York, Respondent, v. Alexander Wasealeaw, Appellant.
    Court of Special Sessions, City of New York, Appellate Part, First Judicial Department,
    July 25, 1934.
    
      Minton & Murphy [John Mc Kim Minton of counsel], for the appellant.
    
      William C. Dodge, District Attorney [Irving J. Tell of counsel], for the respondent.
   Per Curiam.

The appellant was convicted of a violation of subdivision 6 of section 722 of the Penal Law in that he is alleged to have placed his hand in the proximity of the trousers pocket of a man who was then asleep in the subway station at Fifty-ninth street and Seventh avenue, borough of Manhattan, city of New York.

The record discloses that there is a doubt as to the guilt of the defendant, and indeed the language used by the court seems and points to that doubt. The defendant was entitled to the benefit of that doubt and should have been acquitted. We do not think that the use of an assumed name by the defendant under the circumstances as appearing in the record in any way points to the defendant’s guilt or tends to remove that doubt. (People v. Albo, 139 Misc. 852.)

Judgment reversed on the law and facts, fine ordered repaid and defendant discharged.

All concur; present, McInerney, P. J„, Salomon and Herbert, JJ.  