Judgment of conviction affirmed; no opinion.
Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Conway, J., votes to reverse and grant a new trial upon the ground that the identity of the defendant as the person who committed the homicide was not shown with sufficient certainty to preclude a reasonable possibility of error. (People v. Seppi, 221 N. Y. 62, 68; People v. Davino, 284 N. Y. 486, 489.) Chief Judge Crane, in People v. Crum (272 N. Y. 348, 350), set forth clearly.and succinctly the measure of our obligation in a capital case. He said: “ A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.”
This defendant was convicted upon the altered and changed testimony of unreliable witnesses, upon conjecture and upon inferences flowing from inferences. [See 302 N. Y. 941; 303 N. Y. 627.]