(dissenting). To see this ease whole and in proper focus, it must be borne in mind that defendant’s conviction rests solely upon his confessions and that the trial court so charged the jury, advising that, absent those confessions, “ defendant must be acquitted, for the reason that the Court rules, as a matter of law, that all of the other evidence in the case * * * even if accepted by the jury as true, is insufficient upon which to predicate a verdict of guilty. ”
The trial judge charged unequivocally that Dr. Helfand had promised defendant, “ in order to induce him to confess,” that he would not be prosecuted for murder in the first degree, that such promise was authorized by the district attorney and that defendant confessed in reliance upon it. Consequently, as the trial court went on to charge, that confession was inadmissible as a matter of law. (See Code Crim. Pro., § 395.) In view of that charge'— which, of course, became the law of the case — it follows, as a matter of ineluctable logic, that any and all other confessions to the district attorney or those associated with him in the investigation and prosecution of this very homicide, must also be deemed to have been induced by that promise, and likewise inadmissible. Accordingly, when the court further instructed the jury that it might find that the confessions to assistants of the district attorney and to a police captain — made within an hour or two after immunity had been promised — had not been induced by the promise, it pursued a course that was not only opposed to logic, but incompatible with the law of the case. That was error highly prejudicial to defendant.
Nor does the existence of the confession that defendant made to Herrschaft, his friend and business associate, change the situation or permit an affirmance. True, that confession may stand in a category different from those made to prosecutor and police; other considerations, considerations separate and apart from the district attorney’s promise, may have prompted defendant to confess to his friend. I am willing to assume, therefore, that the court was warranted in leaving to the jury the question whether or not the promise induced defendant’s confession to Herrschaft, but that does not dispose of the matter. Since the jury also had before it the two confessions made to *474the law enforcement officials, and since those confessions played a not unimportant part at the trial, no court can say that the jury, in reaching its verdict, either relied solely upon the confession to Herrschaft or disregarded entirely the other confessions. That being so, the conviction cannot be upheld. (Cf. Stroble v. California, 343 U. S. 181, 190.)
I would reverse the judgment and order a new trial.
Lewis and Desmond, JJ., concur with Dye, J.; Froessel, J., concurs for affirmance under the provisions of section 542 of the Code of Criminal Procedure; Fuld, J., dissents in opinion in which Lottghran, Ch. J., concurs; Conway, J., not sitting.
Judgment of conviction affirmed. [See 304 N. Y. 844.]