[143 N.Y.S.2d 363] Michael J. Rano, Endicott (Harry S. Travis, Binghamton, of counsel), for defendant-appellant.
Robert E. Fischer, Dist. Atty. of Broome County, Binghamton, for respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.
After a trial defendant has been convicted of the crime of criminal negligence for causing the death of a young woman by striking her with his automobile. The indictment specified that he was driving while intoxicated, and had defective brakes on his automobile. To indicate the vital importance of the principal question before us, it should be mentioned that the record discloses tht the real issue litigated was the question of defendant's intoxication.
Sufficient competent evidence was adduced at the trial to present a fair question of fact to a jury as to the defendant's guilt, but we are constrained to conclude that errors of a substantial and prejudicial nature invaded defendant's right to a fair trial.
After defendant's arrest and while he was in jail the police sent a doctor to examine him. The People called the doctor as a witness at the trial, and at a certain point in his testimony, the following ensued:
'I requested, as is the procedure, permission to take a----
'Mr. Travis: I object to this, your Honor, and call your Honor's attention to the fact that this has no bearing on the issue here. It is immaterial and irrelevant. It is no competent proof.
'Mr. Fischer: This has been anticipated, your Honor. We are offering this particular testimony merely for the purpose of showing that the man had a fair examination.
'The Court: Objection overruled.
'Mr. Travis: May I have an exception, please, and I would also move for a mistrial upon the District Attorney's assertion that this is offered ...