People v. Malizia

Frank, J. (dissenting).

The dissent herein is predicated upon one specific proposition and concerns only the first count in the indictment under which count the defendant was charged with feloniously selling a narcotic drug.

Pursuant to section 399 of the Code of Criminal Procedure the court was requested to charge as follows: “ I respectfully ask Your Honor to submit to the jury as a question of fact whether or not Malone is an accomplice of the defendant as to first and fourth counts of the indictment, and if they find that he is, they must acquit him, as there is no other evidence in the…