SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 24, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLIE JOE WILSON, APPELLANT
Appeal from judgment of Monroe County Court convicting defendant of manslaughter, first degree and unlawful possession of firearm.
Bastow, P. J., Goldman, Del Vecchio, Marsh and Henry, JJ.
Memorandum: While the Grand Jury testimony of the eyewitnesses gives a completely contradictory version of the story of the shooting from their testimony on the trial and could be used by the District Attorney to impeach their credibility (Code Crim. Pro., § 8-a) such testimony could not be used to supply deficiencies in their trial testimony in providing substantive and affirmative proof of guilt. (See People v. Freeman, 9 N.Y.2d 600.) None of the eyewitnesses, and the District Attorney relied upon their testimony to establish the facts of the shooting, gave testimony to the facts as narrated in their Grand Jury testimony and the testimony they did give neither established that the defendant intentionally fired the gun that caused the victim's death or that the shooting was other than an accidental discharge while the defendant and the victim were tussling for the gun.
Judgment insofar as it convicts defendant of manslaughter first degree unanimously reversed on the law and facts and a new trial granted and otherwise judgment affirmed.
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