(dissenting). When defendant was tried, convicted and sentenced to death, all the important proof against him consisted of eyewitness identification testimony by witness Janson, and testimony by James Forlenza of an alleged dying declaration in which the victim is supposed to have named defendant as his slayer. On the trial record as it then stood, and despite the mystery as to motive or background, we held that the jury’s guilty verdict was not against the weight of evidence. But, since our affirmance, quantities of new evidence have come to light, the existence and weight of which we must recognize. To my mind, the new proofs insistently demand a new trial for this defendant. In voting for such a new trial this court would not be passing on defendant’s guilt nor would we be reviewing again the weight of evidence as to that question. We would be seeing to it that this man does not go to the electric chair until a jury has heard this strange new series of conflicting and confusing narratives, many of them highly favorable to defendant. We would be upholding defendant’s fundamental right to a full trial by jury.
Let us assume that the new information, not known at the trial, as to witness Janson’s mental condition, does not meet the requirements that new evidence to call for a new trial must be more than merely cumulative or contradicting or impeaching, that it must be such as could not by due diligence have been discovered before the trial and that it must be such as would, if produced at a new trial, probably change the result (Code Crim. Pro., § 465, subd. 7; People v. Priori, 164 N. Y. 459). Let us go further and assume that the highest court of New York is so tightly bound by that rule that we must close our eyes to everything but the rule. On those two assumptions, even, I still think that a new jury should decide whether or not it is safe to accept the testimony of a witness who went straight from the courtroom to a mental institution, and the seriousness of whose mental illness was certainly not disclosed during the trial to defense counsel. It is unreasonable to charge defense counsel with lack of diligence in discovering the facts as to Janson, facts which *229were diligently kept from him by those whose duty it was to disclose all pertinent information about a witness, especially in a first degree murder case. It cannot be stressed too much that Janson was the only witness who identified defendant as the killer.
If the jury had been permitted to learn that Janson was at least temporarily insane during the trial, the jury might have had to rely, for a finding of guilt, on Forlenza’s testimony as to a dying declaration. That testimony obviously came as a complete surprise to defense counsel at the trial. To say now that the latter should have stopped the trial and made a prompt and thorough investigation, as to the probability or possibility of that declaration ever having been made at all, is to demand the impossible. Even if a long delay in the trial, for such an investigation, could have been had, how could any lawyer in such a situation have guessed at the existence of testimony which it has since taken months or years to uncover ? How could defense counsel have imagined that elaborate investigations later made would turn up two physicians, two nurses, two police officers and several other persons, each prepared to give testimony of greater or less definiteness, completeness and weight, to the effect that the dying declaration could not have been made by decedent or heard by Forlenza? Such testimony is “ cumulative ” in the broadest sense only of that term since there was no real opportunity or effort to try out the precise question at the trial. For the same reason, it cannot be said to be merely “ contradictory ”. It is brand new evidence to show that an alleged fact surprisingly testified to (not the fact of guilt but the alleged fact of a dying declaration) simply could not be true. To say that all this neAV material (or any of it) could with due diligence have been produced at the trial by the defense is to ignore reality. How could defense counsel, having no reason to expect dying declaration testimony, have been expected to prepare himself with medical proof that the victim Avas in fact unable to speak? There simply Avas no such issue in the case until James Forlenza took the stand. The charge against defense counsel of lack of due diligence is particularly unfounded as to the victim’s special nurse Cancro, now a most important witness for defendant, whose very name could not be learned till long after the trial.
*230The important dispute of fact on a new trial would be as to whether the victim could or did talk. Since at the last trial defense counsel could not have anticipated that any such dispute would arise, diligence in preparing for it is simply not in the picture at all.
This court, since it cannot directly review an order not in the original judgment roll, denying a motion for a new trial on newly discovered evidence, reaches the same result by ordering a reargument (People v. Regan, 292 N. Y. 109) as we did here. But such a reargument brings up not only the newly discovered evidence, but the whole record, old and new. We cannot, or at least should not, treat the alleged newly found evidence as something separate and off by itself. We should picturé the trial record as it would look with the new testimony added. After thus re-examining the total record, our duty is to say whether or not a new jury, hearing all of it, might well come to a different conclusion.
And our power to order a new trial is not limited by the rules as to newly discovered evidence. Having heard a reargument of the entire proceedings, we have now the same powers of disposition and decision as in any other appeal in a capital case. Among those is the power to order a new trial if justice so requires (Code Crim. Pro., § 528). I strongly feel that the interests of justice demand a full trial of this cause before a jury which can hear all the witnesses.
The judgment should be reversed and a new trial ordered.
Conway, Ch. J., Froessel and Burke, JJ., concur with Dye, J.; Fulo, J., dissents in an opinion in which Desmond and Van Voorhis, JJ., concur; Desmond, J., dissents in a separate opinion in which Fuld and Van Voorhis, JJ., concur.
Upon reargument: Judgment of conviction affirmed. And upon such reargument there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: The defendant argued that he was deprived of due process of law under the Fourteenth Amendment of the United States Constitution in respect to the exhumation proceedings by the trial court upon the hearing on the application for a new trial. This court held that the defendant’s constitutional rights were not violated.