People v. Di Carlo

790 ■Memorandum bt the Court. As to defendant O’Neill, the record establishes (1) that gambling places were operated in his precinct; (2) that he had full knowledge that such operations were taking place; (3) that there was sufficient proof from which a jury could say that he failed to use available means to suppress such operations. As to whether this was willful neglect of duty is a question of fact for the jury. (State v. Brattrud, 210 Minn. 214; Note 134 A. L. R. 1250, 1251, 1258; People v. Glermon, 175 N. Y. 45, revg. 78 App. Div. 271, S. C. 37 Misc. 1.) Although the record supports the charge that the other two defendants violated the law insofar as gambling is concerned, there is no proof in the record from which it could be found that they had aided and abetted O’Neill in neglect of his duty. The conviction on the fourth count should be reversed and the fourth count dismissed as to- defendants Di Carlo and Tronolone. As to defendant O’Neill, we cannot say that he was not prejudiced by his trial with the other two defendants. In the interest of justice his conviction should be reversed and a new trial should be granted to him. As to the conviction of Di Carlo and Tronolone on the first count, the record supports such conviction. As to defendant Joseph Di Carlo: Judgment of conviction on the first count affirmed. Judgment of conviction on the fourth count reversed on the law and the indictment so far as it relates to the fourth count dismissed as to such defendant. Order dismissing the second and fifth counts affirmed. As to defendant John F. Tronolone: Judgment of conviction on the first count and order overruling demurrer affirmed. Judgment of conviction on the fourth count reversed on the law and the indictment so far as it relates to the fourth count" dismissed as to such defendant. Order dismissing the second and fifth counts affirmed. As to defendant Thomas F. O’Neill: Judgment of conviction reversed on the law and facts and a new trial granted in the interest of justice. Order dismissing the fifth count affirmed.