The evidence, if the conviction is to stand, must be the critical proof enabling the jury to say beyond a reasonable doubt that defendant was a murderer. (People v. Klvana, 241 N. Y. 481, 486.) We think the evidence here falls short of that standard. The circumstances under and the form in which the jury finally rendered its verdict is indicative of the same doubt. Sentence here should not be executed without every reasonable safeguard for the avoidance of mistake. The judgment of conviction should be reversed on the ground that justice will be promoted by granting a new trial. (Compare People v. Spickler, 255 N. Y. 408.)
All concur, except Edgcomb and Thompson, JJ., who dissent and vote for affirmance. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.
Judgment of conviction and order reversed on the facts and a new trial granted.