As a second offender the defendant has been convicted of robbery in the first degree and sentenced *66to prison for thirty years. The complainant was the sole witness on identification. The man who robbed him at the point of a gun wore large, green goggles. The complainant secured only a side view of the defendant’s eyes. He testified they were large, but was unable to state their color. Nor was he able to state whether the criminal wore a hat or a cap or whether, if he wore either, it was pulled down over his eyes. He was unable to give any description of the manner in which the [robber was dressed, the color of his clothes or of his shoes, or of the manner of walk.
The hold-up took place about eight o’clock in the evening as the complainant was checking up cash receipts in his store. He testified that the sum of $445 was taken from him. He was prevented from immediately pursuing the robber because the latter had taken possession of his trousers. However, the complainant immediately notified the police by telephone.
The following morning, about ten or ten-thirty o’clock, he saw the defendant pass by his place of business and observed that he entered a cigar store in the neighborhood. At the time he thought the defendant looked like the man who held him up and notified the police. After the arrest the -complainant went to the station house where he again saw the defendant. His identification was not immediate, but after he was taken by the arresting officer to a hallway and was asked, “ How does he look to you? ” he then said that the defendant was the one who robbed him. So, too, on the trial, his identification was positive.
When the defendant was arrested neither the green goggles nor any money was found upon him, nor were the complainant’s trousers recovered. A black revolver found on the top of a mirror in a room occupied by the defendant and others, in the home of the defendant’s parents, and which the complainant said “ looked like ” the revolver used in the hold-up, had dust on it when found by the officer. The defendant’s father testified that it belonged to him, and not to the defendant.
In my view this evidence 'was insufficient to establish beyond a reasonable doubt that the defendant was the person who committed the crime. In addition, it is to be noted that the defendant appeared the following morning in broad daylight in front of the complainant’s store. Is it likely that he would have subjected himself to the possibility of an arrest by exposing himself in full view of the complainant immediately after the crime? And is it probable that he would not have had on his person some of the proceeds of his crime?
I think, too, that prejudicial error was committed. There was insufficient evidence of identification of the revolver introduced in *67evidence. The complainant testified only that it looked like the gun the robber used. Its admission in evidence was objected to and an exception taken. In my judgment it should not have been received as no proper foundation was laid. Particularly is this so for the reason that the dust on the revolver would indicate that it had not been used the previous evening in the manner disclosed by the evidence.
Improper statements prejudicial to the defendant were made in the summation of the district attorney. In referring to the identification and the arrest, the district attorney stated: “ Picks out a defendant who has been here before.” When this was objected to the trial justice ruled that the remark was proper. Again, the district attorney, referring to the same subject, stated to the jury: “ A man that has been convicted of the same kind of charge before.” Objection that this remark was improper was overruled and exception taken.
It is true that the defendant was a second offender and the indictment so charged and proof in support of this allegation in the indictment was offered before the jury. However, it seems to me that the remarks of the district attorney were calculated to prejudice the defendant. They indicate that a conviction was being urged upon the ground that the defendant had a prior conviction. The jury were not entitled to consider the prior conviction on the issue of defendant’s guilt. His identity was the only issue for their consideration. (People v. Gowasky, 244 N. Y. 451.)
I am not unmindful that the defendant did not take the stand nor of the fact that there were some contradictions and inconsistencies in the testimony of witnesses called on his behalf to establish his alibi. Nevertheless, I am of opinion that the evidence of identification here was of too flimsy a character to warrant the severe judgment pronounced. In addition there were the prejudicial errors already discussed.
I, therefore, vote for a reversal and a new trial.
Judgment affirmed.