(dissenting). There was no confession by the defendant of the homicide, and, therefore, cases such as People v. Lytton (257 N. Y. 310) have no application. Nor do I have any doubt that, where other evidence of the essential facts is available, a conviction for rape may be obtained without the testimony of the woman ravished. But the defendant has been convicted of murder in the first degree as a felony murder and not of rape, though rape was the underlying felony.
In scrutinizing the evidence I think that the proof is insufficient to support a finding beyond a reasonable doubt that the defendant was the one who strangled the deceased, or that such strangulation occurred during the period between the inception and the consummation of the rape. There is no doubt that the decedent met her death by strangulation. The body of the deceased was found in the hallway on the fifth floor, at the same location where the defendant admitted that on the prior night he had sexual intercourse with her after a struggle, in which he struck her. From this we may suspect that the defendant choked the decedent in accomplishing his purpose to rape her. But mere suspicion is not enough for a jury to have found such fact. There must be evidence of a legally sufficient quality to justify a finding that the murder was committed by defendant and accompanied the rape. In this case any inferences to such effect rest on other inferences rather than evidentiary facts.
There was evidence that the defendant was the last person seen with the deceased. At that time, however, they were on the fourth floor. The defendant was heard to ask her to come upstairs, but she refused. They then headed downstairs. The *161jury was required to infer that they had both gone upstairs later, and to infer further that in a struggle on the fifth floor the defendant choked the deceased to death in the course of or preparatory to a rape. And the inference must be drawn as to the coincidence of the crimes.
There was evidence of false statements by the defendant as to where he had left the deceased. These statements might indicate a consciousness of guilt, but guilt of what — homicide, or rape, or some other moral delinquency? In fact, the other evidence strongly indicates that the defendant did not know of the death of the deceased until the following morning, so that the false statements could not indicate consciousness of homicide.
The body of the deceased was found in a public hallway of a tenement house, six to eight hours after the defendant had left her. The medical examiner, who first saw the remains about 10:30 a.m., was unable to fix the time of death other than between two and ten hours prior to his first examination. I fail to find evidence in this record pointing to the defendant with sufficient certainty and exclusiveness of opportunity as to establish beyond a reasonable doubt that he was the one who committed the homicide. There is no proof establishing that the death of the deceased was accomplished after inception of the attempt to rape and before the completion or abandonment of that crime so as to constitute a felony murder (People v. Ryan, 263 N. Y. 298).
Accordingly, I vote to reverse the judgment of conviction and dismiss the indictment.
Peck, P. J., Glennon and Cohn, JJ., concur with Bergan, J.; Callahan, J., dissents and votes to reverse and dismiss the indictment, in opinion.
Judgment affirmed.