(dissenting). I dissent from a majority of the court whereby the conviction of the defendant is about to be affirmed, and vote for reversal and that the defendant be granted a new trial upon the grounds: First, that the verdict of the jury, finding the defendant guilty of the crime charged, was contrary to the weight of the evidence, and that the evidence at the trial was insufficient to show the defendant’s guilt beyond a reasonable doubt; second, that during the trial errors occurred which prejudiced defendant’s rights and which require a reversal of the judgment of conviction; and third, that the defendant was denied a fair trial.
The defendant, a member of the vice squad of the New York police department, was charged with giving false testimony in Magistrates’ Court in connection with the prosecution of one Icie Sands, an alleged vagrant and prostitute. The alleged prostitute was found guilty of vagrancy in Magistrates’ Court and sentenced to imprisonment. Subsequently, at an inquiry instituted by a referee appointed by this court, the alleged negro prostitute, Icie Sands, one Matthew Pridgen, claimed by her to be a cousin but who turned out to be simply an habitue and procurer of her brothel, and one Chile Acuna gave testimony to the effect that the said Icie Sands was one of many unfortunate women who had been framed by the police and that the defendant had sworn falsely in the prosecution of the alleged prostitute in Magistrates’ Court. *443Upon the testimony of the three witnesses mentioned, the defendant was indicted by the grand jury of New York county for the crime of perjury. His trial under the indictment resulted in the judgment appealed from.
The defendant entered upon the trial under a presumption of innocence. It must be borne in mind that the trial of the defendant in Court of General Sessions was held soon after the revelations as to the alleged “ framing ” of dissolute women by members of the vice squad of the New York police department, and at a time when public feeling ran high and prejudice had been aroused against members of the vice squad for such claimed dishonest practices. A sensational public press, ever ready to seize upon the spectacular, did "much to influence the public mind against; honest peace officers as a whole for wrongful acts committed by a comparative few. It was at such a time and under such unfavorable circumstances that the defendant was indicted and tried. There was not a scintilla of evidence, nor was there any claim, that; the defendant had received anything as a consideration for the alleged false testimony which he was charged with having given in Magistrates’ Court. The testimony was merely that he had sworn falsely. For six and a half years the defendant had been, connected with the police department of the city of New York, and prior thereto he had been an employee of the health department of the city. He bore an unblemished reputation, and his official service had been without a stain. At the trial, superior officers and others, including a chaplain of the police department, all testified to his good reputation for truth and veracity. Notwithstanding an entire absence of motive for false swearing, his blameless past record, and the testimony of his superior officers and others as to his good character, he was convicted by the trial jury upon the uncorroborated testimony of a negro prostitute, a negro inmate of her establishment, and that of a self-confessed thief. The last mentioned — the witness Acuna — was a self-confessed criminal. His testimony at the trial was such that the jury was not justified in placing the slightest credence thereon. He posed as a so-called “ stool pigeon ” for the police in the alleged “ framing ” of lewd women. Acuna admitted on cross-examination that he received seven dollars a day, excluding Sundays, from the so-called Seabury investigation, and also had received from another Source a like sum of seven dollars a day for testimony which, he gave at such investigation. He also admitted, on cross-examination, that he received $400 from the New York Daily News and $2,000 from the New York Evening Graphic, “ tabloid ” publications of New York city, to enable the so-called purveyors of news to *444obtain, to use the vernacular, a “ scoop ” over less sensational newspapers. His testimony was contradictory and evasive. His admissions branded him as a creature of the lowest type. His testimony failed to coincide in material particulars with that of Icie Sands. The testimony of this woman and of her consort, Pridgen, was no more reliable. And yet it was upon the testimony of this trio that the defendant was convicted. The jury’s verdict in this case upon such. testimony can only be explained by the fact that the circumstances were such that the defendant was not accorded a fair trial. There were errors committed at the trial which, in my opinion, require a reversal of the judgment of conviction, and that the defendant be granted a new trial. But one or two of these errors need be mentioned. The witness Acuna was permitted by the trial court, against the objection of defendant’s trial counsel, to explain the circumstances under which he had been previously convicted of the crimes of larceny and of attempted extortion, and to testify that he was not, in fact, guilty of such crimes with which he was charged. The woman, Icie Sands, was likewise permitted, against the objection of defendant’s attorney, to explain a prior conviction on her plea of guilty to a charge of prostitution. The court charged the jury that, in determining the weight to attach to the testimony of these witnesses, it might take into account their explanations and protestations of innocence. I think the receipt of such testimony and the charge of the trial court with reference thereto, that the jury might give such explanations such weight as the jury deemed proper, were errors prejudicial to defendant’s rights.
A further grave error, which deprived the defendant of a fair trial, occurred under the following circumstanees: After a protracted trial, lasting many days, and after the testimony had been declared closed, on March 10, 1931, the case was adjourned until the following morning, when summation of counsel was to be made. The justice presiding at the trial, on the reassembling of court on the morning of March 11, 1931, in his discretion, permitted the assistant district attorney to reopen the case and introduce further evidence contradictory of the defendant’s testimony that just prior to the raiding of the Icie Sands’ apartment he, in company with a fellow-police officer, had stood opposite the Sands’ apartment and had seen an unknown man enter the same. The assistant district attorney evidently felt that his case was a weak one and that, unless he could show that defendant could not see a person entering said apartment from the place where the defendant and his fellow-officer stood, the defendant was likely to be acquitted by the jury. Accordingly, the assistant district attorney went to the place in question in the *445late afternoon of March, tenth and there, in company with a police officer assigned to the district attorney’s office, by the name of Leech, attempted to conduct certain experiments. These experiments were conducted at a later hour of the day from that at which the defendant had testified he observed the unknown man enter the Sands’ apartment and at a time of year when the light was not the same. The experiment was conducted under conditions, of fight and visibility, quite different from those prevailing when the defendant testified as to what he had seen. While it is entirely permissible to conduct experiments at a later day, the conditions should be essentially the same. The defendant testified that he had observed the unknown man entering the building on April 5, 1929, between two and half-past two o’clock in the afternoon. The experiments conducted by the district attorney and his companion were conducted on March 10, 1931, at a quarter to five in the afternoon, a time of the year and of the day when the conditions of fight were much poorer than at the time when defendant testified he made his observations. It was said by Curtis in his work on the New York Law of Evidence (§ 805, at p. 611) that “ To render experiments admissible, however, the conditions must be essentially the same as those in existence at the time of the occurrence of the fact sought to be demonstrated.” (See, also, Wigm. Ev. § 460.) In People "v. Fiori (123 App. Div. 174, 185) it was held that in order to render an experiment admissible, the circumstances and conditions must be similar. In that case the court said: “ It is undoubtedly true that evidence of this character is admissible, and very commonly resorted to, but the circumstances and conditions must be similar.” In Richardson on Evidence (4th ed. § 170, p. 120) the textwriter states: “ Thus, tests as to whether a thing could be seen or heard, or a person identified, under given circumstances of time and place, are ordinarily rejected. The evidence of tests in such cases is rejected because it is practically impossible to prove that the tests were made under exactly similar conditions as to fight, sound, atmospheric conditions, etc. If it should be satisfactorily established that the tests, in every particular, were made under like conditions that prevailed at the time in question, the tests would be competent and admissible.”
On the morning of March 11, 1931, when the assistant district attorney, upon his application, was permitted to open the case, he first put Leech upon the witness stand, but Leech failed to meet the emergency and, under a plea of poor eyesight, was unable to give testimony to contradict the defendant. Thereupon the district attorney, who had throughout conducted the trial of the defendant in behalf of the People and who was about to sum up the People’s *446case, evidently disappointed that Leech had failed to support his contention, himself took the witness stand and testified, in effect, that it was a physical impossibility for one to see a person enter the Icie Sands’ apartment from the.point where the defendant had testified he stood when he saw the unknown man enter said apartment. We thus have the situation of the district attorney, a quasi-judicial officer supposed to act with entire* impartiality in the discharge of his official duties, when Leech (the police officer assigned to his department) would not contradict the defendant in his testimony, in a last attempt to bolster up his case, taking the witness stand himself and testifying to his experiments conducted the evening before under conditions of light quite different from those prevailing when the defendant testified he had made his observations. The zeal of the district attorney, in his endeavor to save his cage, was, in my opinion, quite unwarranted. While prosecuting officers, in the discharge of duty, are not to be criticised for their zeal in attempting to secure convictions of those on trial for crime whom they believe to be guilty, and while undoubtedly the assistant district attorney in this instance was actuated by honest motives, his action in taking the witness stand himself in behalf of his client worked a serious wrong to the rights of the defendant. While the assistant district attorney in this case is not to be charged with intentional wrongdoing, the fact remains that his act must have had a most potent effect upon the jury and may well have resulted in the verdict in favor of the cause he so zealously espoused. Such practice was entirely contrary to the Canons of Ethics of the New York State Bar Association and the Canons of Ethics of the American Bar Association, and requires reversal. In canon 5 of the Canons of Ethics of the New York State Bar Association it is stated: “ The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. He should avoid oppression and injustice of any kind whatsoever.”
Canon 19 of the New York State Bar Association’s Canons of Ethics provides as follows: “When a lawyer is a witness for his client, except as to merely formal matters, Such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court in behalf of his client.”
The Canons of Ethics adopted by the American Bar Association are Substantially the same as those of the New York State Bar Association.
Had the assistant district attorney desired to disprove the testimony of the defendant and his ability to see, from the point where *447he stood, one entering the Icie Sands' apartment, he could have done So with witnesses other than himself. Having taken the witness Stand himself in what, it seems to me, was a failure to observe the standards of ethics set up by the New York State Bar Association and by the American Bar Association, the assistant district attorney then proceeded, not to leave the trial of the case to other counsel, but chose himself to continue in the trial and to sum up the case in behalf of the People. Whatever virtue there may be to the Canons of Ethics adopted by the bar associations, there was a plain violation thereof in this case.
The testimony of the assistant district attorney directly contradicts the testimony of defendant. Here the defendant was on trial for perjury, and this sworn officer of the law saw fit to take the witness stand and to give testimony to the effect that defendant was committing perjury on this very trial. The effect of such testimony upon the jury must have been most prejudicial to the defendant. The jury must have given great weight to the testimony of this quasi-judicial officer, supposedly acting with impartiality between the People and the accused, and who, immediately after giving such testimony, summed up the case for the People.
In People v. Fielding (158 N. Y. 542), Judge Vann, writing for the Court of Appeals, in discussing the conduct of a public prosecutor in the trial of a criminal action (at p. 547), referred to such prosecutor as “ a giicm-judicial officer, representing the People of the State, and presumed to act impartially in the interest only of justice.” Judge Vann then continued: “ If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.”
Numerous decisions of our courts have placed the stamp of their disapproval upon, and judgments of conviction have been reversed by reason of, conduct of prosecuting officers much less prejudicial to the rights of defendants on trial for crime than that resorted to at the trial here under review. (People v. Teiper, 186 App. Div. 830; People v. Manganaro, 218 N. Y. 9; People v. Wolf, 183 id. 464, 468; People v. Fielding, 158 id. 542, 546; People v. Greenwall, 115 id. 520; People v. Esposito, 224 id. 370, 377; People v. Henry, 196 App. Div. 177; People v. Mull, 167 N. Y. 247, 248.) I think the action of the assistant district attorney in this case was unwarranted. The defendant’s rights were thereby prejudiced and the right of a fair trial was denied him. The error *448was a vital one and should not be lightly glossed over or ignored under the provisions of section 542 of the Code of Criminal Procedure. That section is only applicable where mere technical errors have occurred not affecting substantial rights of a defendant. The charge against the defendant was a serious one. If he was guilty of the crime of which he was accused, he should be punished. But he should be given a fair trial, and convicted upon evidence free from error. That he did not have in the trial here under review.
The judgment of conviction should be reversed, and the defendant granted a new trial.