The defendant has been convicted of the crime of grand larceny in the first degree. He was accused of having stolen a special patrolman’s badge from the person of one Frank Gatto. Upon the trial the prosecution endeavored to prove that the defendant was accused by the complaining witness of having committed this crime and that in the face of that accusation the defendant remained silent. The witness apparently did not understand, or at least did not respond to the questions put to him in regard to the matter. He evidently thought that the questions referred to, or he desired to testify to, an identification of the defendant. It is true that the evidence which the district attorney desired to elicit occurred at an interview in which the complaining witness identified the defendant as the person who stole his badge. . In the course of this examination the witness testified to an identification of the defendant. I think this identification, however, was merely incidental and that it does not violate the rule laid down in People v. Jung Hing (212 N. Y. 393). If the evidence which the People sought to elicit was competent, its competency was not destroyed by the fact that it also elicited other evidence which was incompetent. (Hope v. People, 83 N. Y. 418; People v. Place, 157 id. 584, 598; People v. Orr, 92 Hun, 199, 203; Abb. Tr. Br. Crim. Causes [2d ed.], 411, 514.) The evidence which the People sought to elicit *536was that the defendant remained silent when accused of the crime. This evidence was competent. (Kelley v. People, 55 N. Y. 565; People v. Ferrara, 199 id. 414, 424,430; Abb. Tr. Br. Crim. Causes, 557, 558.) The question put to the witness in relation to his accusation of the defendant and the defendant’s silence under the accusation is criticised as being leading and also as assuming a fact not in evidence. The whole course of the examination indicates clearly that the defendant’s counsel did not object to the identification of the defendant but did object to what was said at that time. The objection made to the question was general — no ground for the objection being stated — but the previous objections indicated that this objection was based upon the contention that any evidence of what was said at this time was incompetent. The court’s attention should have been called directly to the point involved in the objection. Aside from that, a witness later testified to the same incident and testified that the complaining witness did make the accusation against the defendant in practically the language embraced in the district attorney’s question. It having been shown by independent testimony that this incident actually occurred, the defendant was not harmed by the assumption in the question addressed to the complaining witness. The mere fact that the question was leading is insufficient to justify a reversal.
The judgment of conviction should be affirmed.
Jenks, P. J., Putnam and Kelly, JJ., concurred; Black-mar, J., read for reversal.