The defendant was found guilty by a unanimous decision of three justices of the Court of Special *98Sessions, each experienced in the trial of “ shoplifting ” cases. We may safely assume that these justices would hesitate to convict in a case of this character unless the evidence clearly satisfied them of the defendant’s guilt. They heard the testimony from the mouths of the witnesses and were thus afforded opportunity to observe the demeanor of each and his or her manner of testifying. It was for these triers of the facts to pass upon their credibility and not for an appellate court. (Boyd v. Boyd, 252 N. Y. 422.)
The prevailing opinion censures the store detectives for not having returned with the defendant to the glove and ring counters to have her alleged statement that she had purchased the articles corroborated by the saleswomen. The detectives had seen what had transpired and, if their testimony was to be believed, knew as a fact that the defendant had not purchased the articles. In these circumstances it would have been a mere futile gesture to have complied with her request. Moreover, it is to be noted that the defendant when apprehended was unable to produce a sales slip for either article.
I attach little importance to the fact that the saleswomen, who were called as witnesses by the defendant, were unable to say whether they remembered having sold the articles to the defendant. They were busily engaged waiting on other customers at the time in question. The fact that each was unable to recall having made a sale to the defendant tends to support the People’s case. If the defendant had made a purchase it is quite likely that each of these saleswomen would have had some recollection of the sale.
In these circumstances I vote for affirmance, as I am of opinion that the defendant’s guilt was clearly shown and that the justices of Special Sessions should not be again called upon to retry a case where in all probability the result will be the same as on the first trial.
Finch, P. J., concurs.
Judgment reversed and a new trial ordered.