I agree that People v. Walker (198 N. Y. 329) mandates the conclusion reached by the court. However, I do not agree with either the logic or the philosophy of the decision, and suggest that the decision made 55 years ago be re-examined.
On this trial no evidence offered by the defendant was excluded. Nor was he subjected to any prejudice. Nor was the law incorrectly explained. No one entertains the slightest doubt as to his guilt and, perforce, there must be accord that, barring a miscarriage of justice, a verdict of guilty of the same crime must be the result of a new trial. It should be axiomatic that a new trial which would only duplicate the results of the first is unnecessary. A new trial should not be ordered merely to provide the opportunity for a result not warranted by the evidence. A rule of law which prescribes such a result must be inherently unsound.
While various pragmatic reasons are given for maintaining the rule—none of which is believed to be sound — mention will be made only of the reason advanced in the Walker case. The *571theory is that the value of the goods being an element of the crime, it must be passed on by the jury. The opinion concedes that every trial involves countless possible issues. Many of these are not disputed. For instance, in this case defendant did not dispute that he was the person named in the indictment, that he had the jewelry in his possession at the time of arrest, or that he was in the premises where the larceny was committed on the night in question. All of these he might have contested, and the jury would have had to pass on the issues thereby created. Neither did he in his testimony contest the value of the jewelry; in fact, he insisted on its having a value in excess of $100 as a factor in a patently unsuccessful attempt to make a plausible explanation of his possession. However, his counsel demanded that the “ issue ” go to the jury. The Walker opinion concedes that, in the absence of contest, undisputed facts may be deemed established and need not be passed on by the jury, even though essential to the crime (p. 335). No other rule would make sense. But the case makes an exception that, even though the evidence shows no dispute, if the defendant requests that the existence of the fact be submitted to the jury, it must be. This rule either allows the jury to pass on something not in issue or defines as an issue something conceded in the testimony. Just how such a rule protects the innocent is not clear. In reality, there is no issue and the rule that says there is should be re-examined and extirpated.
Rabin, J. P., Valente, McNally and Staley, JJ., concur in Per Curiam opinion; Steuer., J., concurs in result, in opinion.
Judgment of conviction unanimously reversed and a new trial ordered.