On the 31st day of October, 1938, the deceased, Thomas J. Hitter, a fireman, returned to his fire house after cashing the pay checks of his fellow firemen. As he stopped his automobile outside the fire house, his assailant drove alongside, shot him, jumped from the automobile, ran around the automobile of Hitter to the front right-hand door, shot him again, took the money from the pocket of deceased, ran back to his own automobile and sped away.
The question for the jury was one of identity, which is always a difficult one. None of the witnesses who saw the occurrence was nearer to it than seventy feet. One saw only the left profile of the assailant and did not see the defendant until in the hallway of the court house some seventeen months later. Another witness, who could not identify the defendant, said that the assailant seemed to have a peculiar way of running; that it was more or less of a shuffle. The other three went to the office of the Parole Commission about seven weeks after the occurrence and saw the defendant who had been directed to report as a parolee.
Of those three, one said that on the day of the homicide the assailant ran as though bowlegged or as if he had a club foot; that there was something wrong with one of his feet and that her recollection was that the assailant was without a coat. At the parole office that witness said she would like to see the defendant without a coat. He then had on a camel's hair coat. Later in the day at the station house she asked to have that coat removed and then identified the defendant.
The second of these three witnesses said that the defendant at the time of the homicide had on a gray hat and gray top coat. At the parole office that witness said he would like to see the defendant with his hat on. Later he said he became positive in his identification when he saw defendant again later in the day in the station house and in the District *Page 488 Attorney's office the following morning. He said he wished to see the man in a gray coat and hat and to see his profile and to see the hat pulled over his eyes, the way he had it on the day of the homicide. He said the clothing had some part in making him positive in his identification. He testified that he did not say definitely that the defendant was Hitter's assailant until in the District Attorney's office on the day following his visit to the parole office. There he wished to see defendant's profile. That witness noticed nothing about the manner in which the assailant of Hitter ran, whether with a limp or a dragging foot.
The third witness noticed that Hitter's assailant wore a gray overcoat and had an odd shaped nose and dark complexion. He did not notice anything peculiar about the man's gait; he trotted. He said that apart from the dark complexion and the odd shaped nose there was nothing unusual about the assailant.
Apparently, from the record, the defendant is neither bowlegged nor club-footed. There was no evidence of flight or enrichment.
The defendant was not tried until fifteen and one-half months after his arrest.
The defendant interposed an alibi. We cannot say as matter of law that it was destroyed: Ludwig did not testify; the testimony of the witness Bellilo is unreliable and the witness Lemal did not recall the date of the cashing of the check which was involved as part of the alibi.
As was said by CRANE, Ch. J., in People v. Crum (272 N.Y. 348,350): "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." *Page 489
"The identity of the defendant as the person who committed the homicide was not in this case shown with sufficient certainty to preclude a reasonable possibility of mistake." (People v.Seppi, 221 N.Y. 62, 68.)
The judgment of conviction should be reversed, and a new trial ordered.