(dissenting). I was one of the bare majority of four who voted to affirm the judgment of conviction when this case was first before us (306 N. Y. 863). Although the record evidence was far from strong, I concluded that there was sufficient to justify a verdict of guilt. The new matter which has been developed and adduced upon the motions for a new trial, as well as upon the application for an order in the nature of a writ of error coram nobis, has radically changed the picture, and I cannot now, consistent with the dictates of conscience or the demands of due process, adhere to my original vote of affirmance, A refusal to direct a new trial will not only work *227an injustice upon Salemi but, even more important, will do a disservice to the administration of the criminal law.
The conviction against the defendant depended primarily upon the testimony of two witnesses, Paul Janson, who identified defendant as the killer, and James Forlenza, the deceased’s brother, who testified that the victim had made a dying declaration to him, naming defendant as his assailant.
As to Janson, proof not before the jury demonstrates that he was probably insane at the time he testified against the defendant, and, as to Forlenza, the newly discovered evidence creates a real doubt as to whether he ever received a dying declaration from his brother. No more need be said about the evidence relating to Janson, for it is indisputable that he was committed as an insane person on the very day after the jury returned its verdict of guilt against defendant.1 And very little more need be said about the testimony bearing upon the authenticity and existence of the alleged dying declaration. It is enough to observe that, had the new matter been before the jurors at the trial, they would have heard — from witnesses of the highest character, whose honesty and sincerity are beyond all suspicion — not only that Forlenza was not at his brother’s bedside in the hospital during the period he said he spoke to the latter and received the declaration, but that, in point of fact, the victim was in no condition, physically or mentally, to have uttered any statement. There was, it is true, conflicting testimony, but the vital thing is that the jury never heard the evidence which, if credited, would have gone far toward destroying the prosecution’s ease.
In arriving at my decision that there should be a reversal and a new trial, I would not be understood as saying that the defendant is not guilty — I do not know whether he is or not — or that the jury, with the new evidence before it, would have returned a verdict of acquittal. My view is simply that the original jury, or another, could reasonably and conscientiously have reached a verdict contrary to the one that was reported, *228on the basis of the matter recently uncovered and not adducible by the defense at the time of the original trial.
The judgment of conviction should, upon this reargument, be reversed and a new trial granted.
. This material was before the court, in connection with an appeal from an order denying a motion for a new trial, when we originally affirmed the judgment of conviction. However, it did not then have the same impact as it does today when considered with the other evidence brought to our attention by the more recent applications.