(dissenting). One Hyman, while employed by a corporation in The Bronx in 1947, was the victim of a robbery in the office of his employer at eleven o ’clock in the morning. Two men participated in the robbery. When Hyman was called to testify in 1950, following the arrest of the defendant, he testified that he was not sure that the defendant was one of the men at his place of business when the crime was committed and would not swear to that fact. Two men were then on trial for the commission of the crime — the defendant Spinello, and one Principe. Hyman was then asked whether he went to the police station on the day of the robbery after being informed that the police had two men for him to look at. Hyman said that he saw two men there and he presumed that they were the same two men then in court. He stated that he identified one of those two men at the station house and indicated the defendant Spinello; that he spoke to neither of the two men then or at any time. He said that he assumed it was Spinello who was standing at the door and that that day he identified Spinello he thought he was the man but was now not sure after the lapse of three years.
I agree with Justice Callahan in his opinion below as to the purpose of the enactment of section 393-b of the Code of Criminal Procedure. Our court, in 1914, reversed the case of People v. Jung Hing (212 N. Y. 393) because on a trial where the issue of identification was close, evidence was permitted that witnesses who testified as to the defendant’s identity had made similar statements in the police station. Our court pointed out that such statements in the police station were nothing more than the unsworn confirmation of testimony of witnesses who had not been impeached except by the usual contradictions of opposing witnesses and that it was error of such serious import that a reversal was required even though no objection or exception had been taken. (The case was a capital one.) Judge Werner, who had written the opinion in People v. Katz (209 N. Y. 311), distinguished that case.
The Legislature added section 393-b of the Code of Criminal Procedure in 1927, by chapter 336 of that year. It was solely in order to permit a witness in a similar situation to testify that he had previously identified the defendant so as to bolster his credibility. It was never intended that a defendant could *205be convicted upon the testimony of one who failed to identify him at his trial as the perpetrator of a crime when a witness under oath, because in a police station three years before, when not under oath, he had identified him as such perpetrator. Tet that is what the Trial Judge charged in this case.
It is the law in this State both by Constitution and statute that an accused may only be convicted upon testimony given under oath by witnesses who confront him and who are subject to cross-examination upon their testimony then given. The accused may not be convicted upon sworn testimony that the witness when unsworn said that the accused was the perpetrator of the crime. That is what was done here and that was the theory upon which the District Attorney and the Judge proceeded (see folios 361, 362, 367, 368).
The District Attorney in his brief in our court at page 19 makes that clear. He concedes the factual situation as 1 have indicated it both as to identification and testimony in the following three paragraphs.
11 The statement of the appellant that ‘ there was no sworn testimony that Spinello was at the scene of the crime,5 is not borne out by the record.
“ The record shows that the complainant swore, at the trial, that he identified the defendant Spinello at the station house.
‘ ‘ He also identified him at the trial, although he stated that because of the lapse of time he was not sure.55
On that concession it is quite apparent that the People have not made out a prima facie case against the defendant Spinello. In other words the District Attorney realizes that if the testimony of Hyman on the stand was all that he had, excluding the testimony as to the unsworn identification, there would be no case against the defendant. That is why the motion to dismiss at the end of the People’s case should have been granted.
Except as indicating the theory upon which the case was tried by the District Attorney, the charge is not important since the motion to dismiss at the end of the People’s case should have been granted. It is unimportant too whether the defendant called witnesses or whether, as mentioned in the opinion below, he made no effort through his attorney to explore the circumstances of the identification in the station house. Since no witness under oath on the trial pointed out the defendant as *206the perpetrator of the crime, whether or not the defendant made conflicting statements as to his whereabouts on the morning of the crime had no probative force. The jury could not consider such conflicting statements as proof of guilt because no one oil the trial under oath had testified that the defendant was present at the scene of the crime when it was perpetrated. For that reason People v. Deitsch (237 N. Y. 300) is inapposite. There an adult witness under oath placed the defendant at the scene of the crime.
The indictment against Principe was dismissed at the close of the People’s case.
I vote to reverse and to dismiss the indictment upon the ground that the People failed to establish the guilt of the defendant beyond a reasonable doubt. The motion to dismiss at the close of the People’s case, which was denied, with exception taken, should have been granted.
Loughean, Ch. J., Lewis, Dye, Fuld and Fboessel, JJ., concur with Desmond, J.; Conway, J., dissents and votes to reverse and dismiss the indictment in a memorandum.
Judgment affirmed.