I join in the decision about to be made as to the defendants Kleinman and Silverman. I also agree that the judgment against defendant Singer must be reversed. I dissent, however, from so much of the decision as orders a new trial as to Singer and vote to dismiss the indictment as to him. Except as hereinafter indicated, I share the views expressed in the opinion of the learned presiding justice.
Concededly the testimony of Anzalone is the crux of the case against Singer. If it were true and not corroborated, the People’s case falls. If it were untrue, the judgment against Singer should be reversed and the indictment dismissed. That his testimony was contradictory in at least one important particular even Mr. Todd, the Special Assistant Attorney-General, admits. That it was contradictory in other essential particulars is not disputed. After Anzalone was indicted and while he was in jail and unable to furnish bail, he requested an interview with an assistant to the special prosecutor. He had one and perhaps two interviews, and on March sixteenth made an affidavit and on the same day testified before the extraordinary grand jury. ' That the statements in his affidavit and his testimony before the grand jury were at variance with his testimony on the trial is admitted. Although at the trial the special prosecutor would not fix the date when Anzalone first communicated and had his first conference with Singer, it is now conceded the date was April twenty-ninth. In his affidavit Anzalone stated that Singer, in the latter part of April, called him on the telephone and asked him to come to his office. He made the same statement before the grand jury. This, he said, was the first communication from Singer. On his direct examination he testified he first learned Singer wished to contact him when he found a message on his desk, written by Nittoly, to that effect; and that he then telephoned Singer and at his request called at the latter’s office, when Singer asked him to offer Cohn a bribe. *180Neither in his affidavit nor before the grand jury did he mention that it was Nittoly who received the first message from Singer and left word for him to call Singer. On cross-examination he testified he personally received the first call from Singer. When he was reminded that on his direct examination he said the first call came through Nittoly, he admitted his testimony on direct was not true. Finally he said that, regardless of the statement in his affidavit (which is the same as his grand jury testimony) and his direct testimony on the trial, he personally received the first message from Singer. This is a most important element in the People’s case because it was the People’s contention that this call resulted in the conference at which Singer proposed that Anzalone attempt to corrupt Cohn. Moreover, if Anzalone’s ultimate statement were true and he personally received the call, then obviously Nittoly’s testimony furnishes no corroboration in that respect. Mr. Todd, in his affidavit in opposition to the motion for a new trial, while admitting the discrepancy between the statements in Anzalone’s affidavit and grand jury testimony and his trial testimony, attempts to explain it by saying that his [Anzalone’s] prior statements were made before he had an opportunity to discuss the matter with Nittoly and Sicilia, and as a result of subsequent discussions with them Anzalone’s recollection was refreshed. Mr. Todd further states he therefore was satisfied that Anzalone’s first communication with Singer was the result of a message left for him by Nittoly. The fact is that at the trial Anzalone testified he never talked to Nittoly at any time about his testimony so far as Singer was concerned.
In his affidavit and on his direct examination Anzalone stated Singer telephoned him a second time a few days after the first call and told him “ not to bother, that the case had been adjourned.” In his cross-examination he said he did not know whether he received the second call personally or through Nittoly. Later he testified he did not personally receive the second call but learned of it through a message written by Nittoly. While he admitted he did not so state in his affidavit he again testified the second message came through Nittoly.
In his affidavit he states that after the grand jury voted not to indict the Luckmans, Singer telephoned him to come to his office. He further states he did so and Singer told him that Cohn did not vote to dismiss. Nowhere in his affidavit does he state that Solovei was present at that conference, nor does he even mention Solovei. Nor did he so state when he again appeared before the grand jury on May 16, 1936. In fact, before the grand jury he testified that Solovei was not present and he never talked “ about *181this matter with Solovei.” In his direct-examination he said Solovei was present and participated in the conversation. He further testified: “ I don’t remember just who said it, but they told me that, they said ‘ What the hell kind of a friend is this Teddy Cohn? There were 14 voted for [no] indictment and he did not vote at all.’ I said: ‘ I told you in the beginning that the man would not go through with it. What do you want off me? ’; and I walked out of the office.” On cross-examination he explained that his failure to state in his affidavit that Solovei was present was due to a faulty memory. His testimony in this respect is palpably false. He also said that prior to the trial he never told any one, not even the men in Mr. Todd’s office, that Solovei was present' at his conference with Singer in the latter’s office, and that the first time he ever told any one that Solovei was present was at the trial. Later, when asked why he did not tell Mr. Todd and his assistants that Solovei was present, he replied: “ I did tell him about him. They know about it.” He finally admitted that his first statement was not true and insisted he told a member of Mr. Todd’s staff that Solovei was present. Mr. Todd, in his affidavit in opposition to the motion for a new trial, admits that when Anzalone appeared before the extraordinary grand jury on May 16, 1936, he testified that Solovei was not present at the interview with Singer. Mr. Todd also states that, “ Subsequently and after further reflection on the matter, his [Anzalone’s] recollection was different, and he testified before the extraordinary grand jury that Solovei was present at the conference.” Mr. Todd further states that, as he believed Anzalone’s later grand jury testimony and disbelieved his earlier testimony, he was under no obligation to call the earlier testimony to the attention of Singer.
Assuming, as the People contend, that this conference took place, it was another very important element in the People’s case, because it confirmed the People’s claim that Singer enlisted Anzalone to corrupt Cohn. The only evidence that there was such a conference was Anzalone’s testimony. Singer and Miss Singerman denied there was any such conference. In view of his affidavit and grand jury testimony, it is impossible to credit Anzalone’s testimony on the trial that Solovei was present at that conference, unless we are willing to accept his statement that he never thought of it until he testified at the trial.
In his affidavit Anzalone says: “ A couple of nights later ”— that is, after his first interview with Singer on April twenty-ninth — he called Cohn on the telephone and went to the latter’s home and offered him $100 to vote against indictment in the Luckman case. In his direct examination he téstified that he went to Cohn’s home *182and offered Mm the bribe on the evening of April twenty-ninth. If Singer sent him to corrupt Cohn, he surely would remember whether he went to Cohn’s home on the very day he agreed to approach him or at some subsequent time.
On March twelfth, the day he was indicted, Anzalone saw his attorney, Mr. Turk. When asked if he wrote out a statement for Mr. Turk, he said he did not remember. Later he said he did make such a statement and signed it and left it with Mr. Turk. When asked if he had any objection to the statement being produced and received in evidence, the court, at Mr. Todd’s request, advised him of his rights, and he refused to consent. Of course, this was his privilege, but under the circumstances his refusal is significant.
While I recognize that the State is neither required nor expected to discover and call witnesses of high character to establish the guilt of the accused, and that even a criminal may tell the truth, no court should permit a judgment based on Anzalone’s testimony to stand. To do so would be a reflection upon the administration of justice. Of course, if Anzalone at one time had given one version of his contacts with Singer and on the trial had given another, and was corroborated, a jury question would be presented and an appellate court would not be justified in disturbing the verdict, unless it was against the weight of the evidence or clearly wrong. That, however, is not the situation here. Not only did Anzalone in his affidavit of March sixteenth give one version of his dealings with Singer and repeat it to the extraordinary grand jury and give a totally different version on the trial, but at the trial he admitted that his first sworn statements were true and Ms testimony at the trial to the contrary was false. The testimony of Nittoly, who was called to corroborate Anzalone as to the telephone calls, not from Singer but from Miss Singerman, his stenographer, is fully set forth in the opinion of the presiding justice. I will not repeat it but merely state that I do not agree that it is sufficient to connect or tend to connect Singer with the commission of the crime alleged. It is difficult to understand how it can be held that Nittoly’s testimony corroborates Anzalone, or, even that a jury could so find, when Anzalone admitted that in several essential particulars Ms testimony, which Nittoly assumed to corroborate, was false, and in other particulars its falsity, though not admitted, is apparent.
It is stated in the opimon of the learned presiding justice that the rule concerning corroboration enunciated in the earlier cases was modified in People v. Dixon (231 N. Y. 111) and that the rule, as modified, is reiterated in People v. Crum (272 N. Y. 348). *183Assuming this to be so, although the opinion in neither case so states, it is emphasized in the two cases cited that the corroborative evidence must tend to connect the defendant with the commission of the crime in such a way “ as may reasonably satisfy the jury that the accomplice is telling the truth.” Obviously no jury could be satisfied from anything that Nittoly said, assuming he was worthy of belief (and he was a convicted perjurer and forger, with a forceful motive to injure Singer), that Anzalone told the truth at the trial, because Anzalone admitted he did not tell the truth, and even if he made no such admission his perjury is clear.
In People v. Ledwon (153 N. Y. 10) the defendants were charged with homicide in the first degree. The jury found one guilty of murder in the second degree and the other of manslaughter in the first degree. The evidence of the People in the main was furnished by a small boy. His statements were contradictory, he having testified different ways on the question of whether the deceased committed suicide or whether he was choked to death by the defendants. The court said: “ So long as the burden is upon the People of not only removing the presumption of innocence, but of estabhshing the guilt of the accused beyond a reasonable doubt, a mere scintilla or even some proof is not sufficient to warrant the submission of the case to the jury. (People v. Owens, 148 N. Y. 648.) It follows that whenever a criminal charge is submitted to the jury upon such proof, against the objection and exception of the defendant, a question of law is presented. We think that in this case it must be held, as matter of law, that the proof was of that character and fell so far below the standard prescribed by the statute that the case should have been withdrawn from the jury.” The court further said: “ The maxim, falsus in uno, falsus in omnibus, must still be given some force as a legal principle. Whatever qualifications may have been attached to it in modem times, we think this is a case for its practical application. To hold that this verdict and judgment, based as they are upon testimony conceded to be involved in ‘ hopeless contradictions/ are beyond review in this court, would be a reproach to the administration of justice. The defendants were, Under the plain provisions of the statute, entitled to have the jury directed by the court to acquit. The request was made in substance, and the refusal of the court to grant it was error.”
What was said in the Ledwon case applies, at least with equal force, to the instant case.
No jury and no court can say what part of Anzalone’s testimony is true, and the presumption of innocence was not and never can be removed by such evidence and guilt established beyond a reason*184able doubt. In my opinion Anzalone’s testimony was not only unbelievable but incredible as matter of law. It is still the law that “ Insufficient evidence is, in the eye of the law, no evidence.” (Matter of Case, 214 N. Y. 199, and cases cited; Serina v. New York Railways Cory., 238 App. Div. 302.) Therefore, as there was no evidence upon which to base a verdict of conviction against Singer, he was entitled to have the jury directed to acquit him, and the indictment against him should be dismissed.
To order a new trial is futile, for it is inconceivable that any court would sustain a conviction based on the inconsistent and contradictory testimony of Anzalone, who is a confessed criminal and an admitted perjurer and who has demonstrated that he js unworthy of belief. The conclusion is irresistible that his motive in testifying on the trial that one or more of the telephone messages were received by Nittoly and relayed to him was to make the latter available as a corroborating witness. Without Nittoly he could be of no aid to the prosecution and would not have gained the immunity which he was promised and received.
As to defendant Kleinman, judgment of conviction and order denying motion to dismiss the indictment reversed on the law, motion granted, and indictment dismissed. Appeals from remaining orders dismissed.
As to defendant Silverman, judgment of conviction and order denying motion for a new trial pursuant to section 465, Code Criminal Procedure, reversed on the law and the facts and motion for a new trial granted.
As to defendant Singer, judgment of conviction and order denying motion for a new trial pursuant to section 465, Code Criminal Procedure, reversed on the law and the facts and motion for a new trial granted. Order denying motion for an inspection of the grand jury’s minutes unanimously affirmed. Appeal from the remaining orders dismissed.