The People of the State of New York, Appellant, v. Charles H. Mullens and William Solomon, Respondents

The People of the State of New York, Appellant, v. Charles H. Mullens and William Solomon, Respondents. [MAJORITY] The order appealed from should be reversed insofar as it dismisses counts 1 and 4 of the indictment, which relate to the 1935 transaction and the motion to dismiss said counts denied. Although there was less evidence before the grand jury than before the court on the former trial, we think that there was sufficient evidence before the grand jury to warrant it in finding these counts against both defendants within the scope and purport of the decision by the Court of Appeals on appeal from the former judgment of conviction herein (292 N. Y. 408). On the other hand, we are constrained by the decisions of the Court of Appeals in this ease and in People v. Nitzberg (289 N. Y. 523) to affirm said order insofar as it dismisses counts 3 and 6, which relate to the 1937 transaction. Present —■ Glennon, J. P., Dore, Cohn, Callahan and Van Voorhis, JJ.; Glennon and Cohn, JJ., dissent from the reversal of the dismissal of counts 1 and 4 of the indictment and vote to affirm the order appealed from in all respects on the opinion of Streit, J., of the Court of General Sessions. Settle order on notice.