Respecting the People's accomplice-witness Reles, the trial judge in his charge to the jury said: "Reles, as a matter of law, is an accomplice, and on his testimony alone there cannot be any conviction. You have heard a lot in this case about accomplices and corroboration, what is this and what is that? Now I will tell you what the law is. The statute says, `A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.' That does not mean that there has to be independent proof of every essential element in the crime. That means two things: first, there must be proof that the crime has been committed, from an independent source, and second, there must be proof of some fact which ties the defendant in in such a way that it will convince you that the accomplice was telling the truth. It does not have to be overwhelming, but if there is proof from independent sources of different steps which show you that Reles was telling the truth, and you believe his story, it is enough. Whatever human witnesses may do as to stating what did or did not happen, whatever lapses of memory there may be on the part of human witnesses, there are certain physical facts which cannot be altered, cannot be changed. The first fact in this case is the condition of the body when found burning in the lot. You have pictures of it, how this body was trussed up and tied, to correspond with the tale as to what was done to Feinstein that night. That is a physical fact."
I believe that these forthright sentences would denote to the mind of the average person the idea that the condition of the body of the murdered man (Feinstein) was a physical fact which in itself — irrespective of the quality of the testimony of the human witnesses — was in law sufficient support for the "tale" of Reles. The trial judge, as I believe, said and intended to say that evidence in corroboration of an accomplice is legally sufficient when it shows to the jury that the accomplice told the truth *Page 387 and that, therefore, it is enough that his testimony correspond with the unalterable and unchangeable physical facts of the crime charged.
If this was the meaning of the charge, then these judgments of conviction cannot stand.
Under the law of this State, the test of the sufficiency of evidence adduced in confirmation of an accomplice is that it shall tend in some degree to connect an identifiable person with the commission of the crime. (People v. Feolo, 284 N.Y. 381;People v. Kress, 284 N.Y. 452.) In fact we have specifically held that evidence which merely shows that the crime was committed in the fashion described by an accomplice is not such corroboration of his testimony as is required by the statute. (Code Crim. Proc. § 399; People v. Maione, 284 N.Y. 423.) Even so, this court now finds only "minor inaccuracies" in the foregoing words of the charge. The cases I have just cited are cited in the prevailing opinion to sustain the conclusion of the court that "the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision."
"In reaching that conclusion," say the court, "we are influenced by one of the last instructions to the jury given by the trial judge, when, upon request made on behalf of both defendants, he charged — `that even if the jury believes the testimony of the witness Reles they cannot convict on his testimony unless it is corroborated by other independent, believable evidence tending to connect the defendant with the commission of the crime.'" The court is impressed by "the accuracy and clarity of that statement of the law." But that statement must be taken to have been qualified by the earlier and more colorful words of the trial judge which I first put down above — unless indeed we are to ignore the repeated admonition in the prevailing opinion that the charge is to be read as a whole. More than that, this last quoted single conventional sentence of the trial judge (which has so much influenced this court) was a mere paraphrase of the statute (Code Crim. Proc. § 399). *Page 388 In truth, that sentence added little to the charge. "The better practice for the court in a criminal case, emphatically in a capital case, even when uninvited by the defendant, is to present to the jury the case on trial in all the phases in which the jury ought to consider it. * * * The trial judge should not as a rule limit himself to stating good set terms of law culled from the codes and the reports. Jurors need not legal definitions merely. They require proper instructions as to the method of applying such definitions after reaching their conclusions on the facts." (POUND, J., in People v. Odell, 230 N.Y. 481, 488.)
So we come back to the instructions of the trial judge which are first set out in this opinion. The jury actually had nothing else to go by in appraising the value of the testimony of Reles. These instructions are simple combinations of normal English words. Yet the difference that now divides this court is one in respect of the ordinary meaning thereof. The majority say that the trial judge thereby gave expression to the proposition that, "The statute is not satisfied if the corroborative testimony tends only to establish the credibility of the accomplice." To my mind, the words of the trial judge say quite the contrary. I can only add that the jury's understanding of any connotation of those words is beyond our finding out.
But the ultimate question in this case is not a question of rhetoric. The ultimate question is one that goes to fundamentals of the fair administration of the criminal law. "If trial by jury is to be maintained, the right of every accused person to be tried in accordance with established forms of law must be respected." (People v. Marendi, 213 N.Y. 600, 619.) It is to be said for the trial judge that high authorities in other places would sanction his charge as I have read it. (7 Wigmore on Evidence [3d ed.], § 2059, p. 327.) When so read, however, it is opposed to the settled construction of the statute which in this State regulates the sufficiency of proof required to support the testimony of an accomplice. The reason of the statute is this: "A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the *Page 389 truth of that history, without identifying the person, that is really no corroboration at all." (See People v. Feolo, supra, at p. 388.)
I believe that the charge of the trial judge cannot fairly be reconciled with this principle and that in consequence the defendants did not have a legal trial. Accordingly, I vote to reverse the judgments of conviction and to grant a new trial.
LEHMAN, Ch. J., and FINCH, J., concur with LEWIS, J.; CONWAY, J., concurs in separate opinion in which FINCH, J., concurs; LOUGHRAN, J., dissents in opinion in which RIPPEY and DESMOND, JJ., concur.
Judgments of conviction affirmed.