(dissenting). If every explanation of a defendant in a criminal case must be accepted as true by experienced trial judges who have the opportunity to appraise'Ms credibility, then *16this statute, so necessary for the protection of the public, is a waste of words. It would indeed be an unresourceful defendant who, found with a blackjack, could not devise some plausible story to account for his possession. The credibility of such explanations is for the triers of the facts.
There are many reasons for believing that the defendant’s possession of the blackjack was not accidental or innocent. The police officer had been requested by one Scherer to accompaBy him to the home of the defendant, with whom Scherer desired to discuss some controversy relating to Scherer’s wife. Obviously, Scherer anticipated the possibility of an attack, for otherwise he would not have requested the protection of the officer. That these fears were not groundless is established by the fact that the defendant answered the door bell with a blackjack in his hip pocket available for immediate use.
The defendant, apparently not aware that the police officer was at his door with Scherer, answered the door bell without his coat on and with the blackjack protruding from his hip pocket. His explaeation then and at the trial was that about three-thirty of that morning he had found the blackjack in the subway where he was employed as a conductor, that he had placed it in his coat pocket and had inadvertently taken it home. This improbable story was rendered even more improbable by other circumstapces to which the defendant testified. The defendant attempted to account for the fact that the blackjack was found in his hip pocket when he opened the door rather than in his coat pocket where he claims first to have placed it, by testimony that he bad moved it from one pocket to the other because a passenger had observed it in his coat pocket and had asked what he was doing with such a weapon. .But how a passenger in the subway could have observed an object of such small size in the defendant’s coat pocket is difficult to understand. The trial court had the right to conclude that this was so improbable that it must have been concocted to explain the presence of the blackjack in the defendant’s hip pocket (where such weapons are commonly carried when intended for use rather than for safe-keeping) when he answered the door bell without his coat.
There was a rule of the Interborough Rapid Transit Company requiring employees who had found articles in subway trains to turn them in at the conclusion of work. The defendant attempted to explain the failure to comply with that rule by testimony that he had forgotten that he had the blackjack when he ceased work, even though not long before, as he testified, he was reminded of that fact by the passenger who had asked him what he was doing *17with a blackjack. After failing to turn in the blackjack as required by the company rules the defendant took it to his borne and, as he claimed, was not aware that he had it on his person when confronted by the police officer and Scherer at the door. In view of the extreme improbability of all these explanations the question of the defendant’s credibility was for the trial judges, who had the opportunity, denied to us, of observing the defendant’s demeanor and expression as he gave his evidence on the witness stand. Deprived of these advantages we ought not to substitute our judgment for the judgment of the triers of the facts (People v. Becker, 215 N. Y. 126), especially in a case in which the justice who presided at the trial declared that he and his associates entertained no doubt of the defendant’s guilt.
I accordingly dissent and vote to affirm the judgment of conviction.
O’Malley, J.. concurs.
Judgment reversed and information dismissed.