Opinion
Argued May 16, 1951
Decided July 11, 1951
Appeal from the Court of General Sessions of New York County, DONNELLAN, J.
Rudolph Stand and Julius Stern for appellant.
Frank S. Hogan, District Attorney ( Richard G. Denzer, Charles W. Manning and Jack M. Cotton of counsel), for respondent.
Judgment of conviction affirmed; no opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and FROESSEL, JJ. CONWAY, J., votes to reverse and grant a new trial upon the ground that the identity of the defendant as the person who committed the homicide was not shown with sufficient certainty to preclude a reasonable possibility of error. ( People v. Seppi, 221 N.Y. 62, 68; People v. Davino, 284 N.Y. 486, 489.) Chief Judge CRANE, in People v. Crum ( 272 N.Y. 348, 350), set forth clearly and succinctly the measure of our obligation in a capital case. He said: "A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt."
This defendant was convicted upon the altered and changed testimony of unreliable witnesses, upon conjecture and upon inferences flowing from inferences.