There was overwhelming proof of defendant's guilt in the testimony of four witnesses, — James and Funicello, who testified to the defendant's confessions; the Coombs woman, who testified she saw the defendant enter the hallway of the premises at 66 West 139th Street, New York City, with the deceased, who very shortly thereafter was found dead under the stairway leading from this hallway, and the Williams girl, who testified she saw him at the foot of this stairway under which the deceased lay dying as he left the building. The trial court instructed the jury to acquit unless the testimony of James or Funicello was accepted as true. The jury found the defendant guilty of murder in the first degree. The decision of the court reversing the judgment of conviction is put upon the ground that the testimony of James and Funicello is not "of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt". We are unable to concur in this decision because of the rulings of this court in People v.Peller (291 N.Y. 438); People v. Buchalter (289 N.Y. 181,230), and People v. Becker, 215 N.Y. 126). In voting to affirm a judgment of conviction in People v. Buchalter (289 N.Y. 181), LEHMAN, Ch. J., said (at p. 230): "Evidence coming from a polluted source has failed to remove reasonable doubt of the defendant's guilt from my mind. All that is immaterial, if the jury is convinced of guilt on sufficient evidence and no errors and defects affected the verdict." This ruling of the Chief Judge was implicit in the affirmance of the judgment of conviction in that case by a majority of the court, and inPeople v. Peller (291 N.Y. 438, 446) this statement of the rule was confirmed by the court.
In People v. Becker (215 N.Y. 126) the rule was applied to a situation strikingly similar to the situation presented in this case. There Rose, Webber and Vallon employed the gunmen who killed Rosenthal and the question was whether or not the defendant instigated them to hire the assassins. Admitting their complicity in the murder, these accomplices having been promised that they would go free, provided they did not actually fire the shots, testified that they were set in motion by Becker, and his guilt depended on the truth or falsity of their testimony. Indeed the jury was instructed "if the jury disbelieve the *Page 304 testimony of Rose, Webber and Vallon in its main essential features, they must acquit this defendant" and this court held that there could be no conviction of the defendant unless the jury believed the testimony of the three accomplices. Dealing with the correlative duties of court and jury in this situation, Chief Judge WILLARD BARTLETT, writing the opinion of the court, said (p. 136): "Extensive as is the power of review vested in this court on an appeal from a judgment of death, the law does not intend to substitute the conclusions of fact which may be drawn from the evidence by seven judges for the conclusions of fact which have been drawn from the evidence by twelve jurors, unless we are clear that the view of the facts taken by the jury is wrong. It is our duty to affirm, if the trial was fair and without legal error and the verdict was not against the weight of evidence. We are to see to it that the trial was fair and that there was sufficient evidence, within recognized rules of law, to support the verdict; this done, the responsibility for the result rests with the jurors." (Italics in the original.)
Characterizing the witnesses, the court said (p. 140): "Of course these accomplices were very bad men; accomplices in murder always are; but it is almost a truism in criminal law that if the testimony of bad men were absolutely rejected many murderers would escape the punishment which they deserve."
And in concluding its opinion the court said (p. 158): "We desire that the views which lead us to affirm this judgment shall be made unmistakably clear. Doubtless, a very strong argument can be made in favor of the defendant, based upon the inducement of the avowed accomplices to swear falsely, their opportunity to fabricate evidence, and the lack of conclusiveness in the corroboration. All this, however, was a question for the jury with whose determination we are not justified in interfering unless we can say that it was plainly wrong — which, as already stated, we cannot say. Therefore, unless the rules of law which have heretofore governed the disposition of criminal appeals are to be changed merely because there might have been a refusal to convict on this evidence, we think (1) that they required the submission of the issues of fact to the jury; (2) that the case was fairly and impartially tried; (3) that no *Page 305 errors of law were committed prejudicial to the defendant, and (4) that the verdict cannot be deemed to be against the weight of evidence or against law within the meaning of section 528 of the Code of Criminal Procedure. It is not our duty to try the case over again upon the printed record. We have not seen the witnesses. We are deprived of the aid furnished by their appearance, demeanor, facial expression and manner of testifying. These advantages the jury enjoyed; and there being sufficient evidence in quantity and quality to take the case to the jury, their verdict, in the absence of any of the statutory grounds for reversal, is conclusive even upon the Court of Appeals."
Unless it can be said that the conduct of the trial was unfair and prejudicial to the rights of the defendant, these rules seem to require affirmance. We agree with Judge LOUGHRAN's comments on the sentiments expressed by the prosecutor. They were worse than "inexact" and his lack of candor may not be condoned. His failure to disclose the names of witnesses who it turned out were known to some of the jurors was equally deplorable; but we do not think that such conduct rendered the trial unfair or in any way prejudiced the jury's fair and dispassionate consideration of the issues.
There is a further consideration of the evidence in this case which seems to require affirmance. If the testimony of the Coombs woman or the testimony of the Williams girl was believed by the jury, the defendant's alibi was demonstrably false. The verdict of guilty imports such a finding. From this situation it follows that in order to set aside the verdict we must not only reject the testimony of James and Funicello as unworthy of belief but the testimony of Williams and Coombs as well. We are unable to find any basis within our competence for concluding that the verdict was against the weight of the evidence.
The judgment of conviction should be affirmed.
LEHMAN, Ch. J., RIPPEY and CONWAY, JJ., concur with LOUGHRAN, J.; THACHER, J., dissents in opinion in which LEWIS and DESMOND, JJ., concur.
*Page 306Judgment of conviction reversed, etc.