I dissent from so much of the majority opinion as affirms the conviction of defendant Bauer of attempted grand larceny, first degree.
I do, however, concur with the result reached by the majority for a reversal of the convictions on the conspiracy count, but on the sole ground there was no evidence of any conspiratorial agreement. At the only three-way meeting of the alleged conspirators no illegal combination was formed, since the only ‘ ‘ agreement ’ ’ made was between Bauer and Gmerek to meet again the following week. At this precise moment, the alleged conspiracy did not exist and the record is completely devoid of any other evidence as to the formation of a conspiracy.
I must, however, disagree with the conclusion reached by the majority which affirms Bauer’s conviction of attempted grand larceny.
It is conceded that the consummated crime of larceny by false pretenses could not have been committed. The majority agree that at the time the $2,000 was given to Bauer, Gmerek was not relying on any representations made by Bauer nor was he deceived thereby, and they further admit that upon these facts it was “ impossible to charge defendant with larceny ’ ’. They would nonetheless find criminal responsibility of an attempt to commit larceny because of his false statements as to his influence and as to his having talked with certain officials, and they conclude that he thus intended to cheat Gmerek out of the $2,000.
To put the case in proper perspective we approach the facts as they relate to the charge of attempted grand larceny, first degree by false pretenses. It is undisputed that since Gmerek handed over the $2,000 to Bauer with the consent of both the District Attorney and Gmerek there could have been no common-law larceny since such a charge is unsupportable if the-owner consents to the taking. If a completed act cannot as a matter of law constitute a crime (such as common-law larceny) it follows that there cannot be a conviction of an attempt to commit the crime (People v. Jaffe, 185 N. Y. 497; People v. Teal, 196 N. Y. 372; People v. Rollino, 37 Misc 2d 14). However, the *477indictment here charges an attempted grand larceny, by false pretenses and onr review of the evidence must, therefore, be directed to determine whether there was an intent to steal and whether there was an ineffectual act toward its commission.
Defendant’s plea of not guilty was a denial of every allegation in the indictment (Code CCrim. Pro., § 338). At the conclusion of the People’s case, defendant unsuccessfully moved for a dismissal on the ground there had been a failure to make out a prima facie case. This motion, of course, raised the vital issue of intent. All dismissal motions were renewed and denied upon the close of the evidence, to which exception was taken. By his notice of appeal from the judgment as well as from all orders made during the trial, defendant’s motion for a dismissal and claim of failure to make out a prima facie case are not only preserved but require us to pass upon the critical question of intent (People v. Wrieden, 299 N. Y. 425; People v. Adelstein, 9 A D 2d 907).
Although we are reversing the conviction on the conspiracy count (which contained a charge of an intent to bribe), because of a failure to prove a conspiratorial agreement, we are compelled to resort to conjecture as to the jury’s basis for the verdicts of guilty on both the conspiracy and attempted larceny counts. If on the conspiracy count they found an intent to bribe certain officials, it would be anomalous for them to have also found Bauer to be possessed of an intent to steal from Gmerek. If he intended to bribe public officials, it could not also be found he intended to steal from Gmerek. It cannot be determined on which ground the jury returned its “ general ” verdict on the first count. Where a multicount indictment is submitted to a jury resulting in multiple verdicts and the evidence is insufficient to justify submission as to any one count, “ the conviction must be reversed since it cannot be known on which ground the jury based its verdict ” (People v. Sullivan, 173 N. Y. 122, 126-127). Hence, if we presume the jury found a conspiracy to bribe, the verdict on the second count is fatally defective and a new trial must follow (People v. Standish, 5 A D 2d 726). By a reversal of the first count, we cannot clear the way to affirm the second count. A view that we might assume the jury found a conspiracy to defraud is subject to what has been condemned as unwarranted reliances upon ambiguous circumstantial evidence. We have held that the convictions on the first count must be reversed but the point is that we have no way of knowing what, in fact, the jury found Bauer’s intent to be. In this connection it should be noted that the only *478direct evidence of Bauer’s intention was Ms announced plan to bribe certain public officials. Inconsistency and uncertainty abound where certainty is required.
There has been no showing beyond a reasonable doubt that Bauer possessed any intent to commit larceny by false pretenses. The majority cite authorities for the proposition that a conviction of attempted larceny may be sustained if two requirements are met, viz., (1) an intent to commit the crime of larceny and (2) an ineffectual overt act toward its commission. The critical element lacking is any evidence of an intent to steal from Gmerek, at whose request the entire chain of events was set in motion. In this connection we take note of Gmerek’s testimony presented as part of the People’s case and given after he stated he had reviewed his testimony and the case with the prosecution. Regarding his conversation with Bauer he was asked:
“ Q. All right. Did you ask for any receipt? [for the $2,000] A. No sir. •
“ Q. Did he offer any receipt? A. Yes, sir, he did offer a receipt.
“ Q. And what did you do or say at that point? A. Well, I believe that he had offered me a promissory note, and I refused it and that was the extent of it.
“ Q. What did you say when you refused the promissory note? A. What did I say?
“ Q. Yes. A. I don’t recall.
“ Q. Do you recall what he said at that particular junction? A. Well, he said, £ What happens if I die or—? ’ He says, £ I might die tomorrow, ’ or something to that nature.
“ Q. And he was willing to write this note out in your presence, was he, and give it to you? A. It was my belief that this was his intention.” [Bracketed matter supplied].
When again queried concerning any conversation relating to money, he testified as follows:
££ Q. All right. Then what was said specifically now; I will ask you that question again; on the 19th, in regard to the two thousand dollars? A. Well, he offered to give me a promissory note on the two thousand dollars, and if he didn’t come across, I would get the two thousand dollars back.”
The majority would hold that the quoted testimony showing Bauer’s offer of a receipt or a promissory note as a money back guarantee and his announced intent to bribe public officials could be disregarded by the jury in order to find an intent to steal from G-merek. With this, I disagree since there is neither any direct evidence of any such intent nor any proper circum*479stantial evidence thereof. That a promissory note was not offered on December 22 does not alter the admitted fact that it was offered by Bauer and refused by Gmerek, on December 19. Any finding of guilt on this second count disregards the very reasonable hypothesis that Bauer asked for and received the money for the purpose of offering it to certain officials.
Adopting the theory advanced by the majority that this ‘‘ crime as defined in the statute depends upon the mind and intent of the wrongdoer,” there is a complete lack of evidence to show an intent to steal. Conversely, a reading of the quoted testimony (which is completely consistent with the recorded transcriptions) affirmatively reveals an absence of any such intent. The theory advanced to justify a conviction proceeds on the proposition that reliance must be placed on the testimony of Gmerek (an admitted extorter), as to Bauer’s expressions of influence but that no reliance or substance is to be accorded to Gmerek’s testimony regarding Bauer’s offers of a money back guarantee. While Bauer’s announced intent to attempt to bribe public officials is not to be condoned, such cannot be transformed into an intent to steal from Gmerek.
Relevant to the vital inquiry regarding the actions and intent of the participants, it should be noted that the jury, following this lengthy trial and deliberations of over four hours, had returned for instructions and rereading of testimony on several occasions. One request with which there was no compliance, despite the presence of the court stenographer at (and presumably before) the time the jury returned with verdicts, was to have read back certain of Gmerek’s testimony. Defendant quite properly raises this claim of prejudicial error and argues that the jury was entitled to have the Trial Judge comply with the mandate of section 427 of the Code of Criminal Procedure and cites People v. Gonzales (293 N. Y. 259) and People v. Lorens (16 A D 2d 135). This is especially true in light of the jury’s obvious confusion and their desire to search the evidence for the requisite elements of the charged crimes. The requested testimony was relevant to defendant’s statements and actions, some of which the majority leans upon for affirmance of the second count. Furthermore, the majority has indulged in the unwarranted assumption that the information sought by the jury concerned only the alleged conspiracy. The fact is that the jury asked “to have the Court Stenographer read back the testimony of Gmerek on the original meeting ”. The majority has relied heavily on Gmerek’s testimony of this meeting in order to establish the basis for the false statements attributed to Bauer and which, as they say, forms a basis and foundation *480for the affirmance of the conviction of attempted grand larceny. Here, as in People v. Westerman (7 A D 2d 943) where the conviction was .reversed for a failure to give information requested by the jury, the information sought pertained to a vital point. What was Bauer’s intent? Both People v. Gezzo (307 N. Y. 385, 396) and People v. Gonzalez (293 N. Y. 259, 263, supra) stand for the unassailable proposition that under section 427 of the Code of Criminal Procedure ‘ ‘ the court must give the information requested, and where the court fails to give information requested upon a vital point no appellate court may disregard the error under section 542 of the Code of Criminal Procedure ”. The language of the court in Westerman (7 A D 2d 943, 944, supra) is most appropriate: “ If the testimony had been read, the jury might well have found defendant guilty but it may also be argued that after having heard the testimony, the jury might have acquitted the defendant. The court made no inquiry as to the reason for the request, but it is a fair assumption there must have been some disagreement or other justifiable reason for it. Under the section (427) it was mandatory on the part of the court to acquiesce in the request, of the jury and failure to do so constitutes reversible error.”
Considerable reliance has been placed on People v. Gardner (144 N. Y. 119) and People v. Moran (123 N. Y. 254) in order to sustain this conviction. They are readily distinguishable since in neither of these cases was there any doubt at all as to defendant’s intent to (1) pick an [empty] pocket as in Moran and (2) to extort money [from one not in fear] as in Gardner.
Bauer’s mental processes must be deduced from and are revealed by Gfmerek’s testimony and the transcripts of certain conversations. The only conclusion which flows from the offers made by defendant is that he had no intention of cheating Gmerek and further if he did not produce results, the money would be returned.
Additionally, it is unquestioned that subsequent to the first meeting of these men, Bauer had telephoned the District Attorney and, while he did not on this occasion discuss the Gmerek case, it is evident from his quoted remarks that he intended to do so in order to carry out his previously announced intention ■ to offer a bribe.
To establish defendant’s guilt beyond a reasonable doubt it was of first importance to prove his intent to steal (People v. Powell, 22 A D 2d 959), a finding that must here rest upon an unsupported inference, and an essential element which is entirely lacking. Moreover, it is axiomatic that legal proof of an intent to steal in this case must rest upon circumstances. *481As such it can of necessity he shown only by circumstantial evidence. In determining,the force, vitality and validity thereof we must, therefore, be governed by the long-established rules of this type of evidence. In this regard, no escape can be had from the quoted testimony in these opinions and its effect on the well-settled rule that not only must all the circumstances be consistent with and point to the accused’s guilt, “ but they must be inconsistent with his innocence ” (People v. Fitzgerald, 156 N. Y. 253). Do these “ circumstances ” exclude to a moral certainty every other hypothesis except that of the accused’s guilt? The answer clearly is, no. (See People v. Weiss, 290 N. Y. 160; People v. Woltering, 275 N. Y. 51.) By Gmerek’s testimony as to his conversation with Bauer, the prosecution has provided adequate and persuasive evidence that Bauer lacked the requisite criminal intent to steal. Bauer’s offers of a receipt, a promissory note and a money back guarantee of success put the lie to any larcenous design. Furthermore, to reconcile his offers to Gmerek of written assurances of satisfactory results, with the prosecution’s theory that Bauer intended to steal the $2,000, necessitates not only a resort to an inference based upon an inference, but actually a stretching of the imagination. “ In this case where the prosecution, of necessity, resorted to circumstantial evidence to establish defendant’s guilt, there was imposed upon the People an unusual burden which required not only the elimination of ‘ reasonable doubt whether his guilt is satisfactorily shown’ (Code Grim. Proc. § 389) but also the elimination of uncertainty as to those asserted facts from which inferences of defendant’s guilt were drawn. Close scrutiny of this record reveals however that in the vital phases of the proof uncertainty abounds where certainty is required. The instances to which we have referred, and others not mentioned, leave us unconvinced that the evidence upon which the judgment of conviction rests satisfies the test for circumstantial evidence ” (People v. Taddio, 292 N. Y. 488, 497).
We cannot shirk our obligation to uphold this time-tested rule of law simply because the jury may have found defendant had a wicked motive regarding his announced intent to interfere with the duties of public officials. This defendant is as much entitled to the benefit of a rule of law as the most blameless member of society. To disregard the rule in this case and thus avoid the well-established requirements of circumstantial evidence would but lead to erosion of the rule and endanger the rights of all. (People v. Mirenda, 23 N Y 2d 439; People v. Donovan,, 13 N Y 2d 148, 154 [and cases therein cited].)
*482In order to determine the existence of an intent to ¡steal, the jury was required to resort to pure conjecture and speculation. In so doing “ conjecture has filled the gaps left open by the evidence, and the presumption of innocence has yielded to the presumption of guilt ” (People v. Galbo, 218 N. Y. 283, 294). In this connection and in an assessment of the state of the evidence we are mindful of the statement in People v. Leyra (1 N Y 2d 199, 210-211) wherein the court stated “as we wrote in People v. Woltering, supra (275 N. Y. 51, 61), ‘ by indulging in the same inferences that the jury has been permitted to draw, the court may feel defendant is guilty ’, but such a feeling is a far cry from proof of guilt. To allow the conviction to stand, therefore, ‘ would violate principles which have stood the test of time and permit convictions where proof of guilt, in the accepted sense is, lacking ’. (People v. Woltering, supra, 275 N. Y., at p. 61.) ”
We are required by statute to grant a new trial when, as here, we are “ satisfied that the verdict * * * was against the weight of the evidence or against the law, or that justice requires a new trial, whether any exception shall have been taken or not, in the court below.” (Code Crim. Pro., § 527; People v. Cashin, 259 N. Y. 434; People v. Guidarelli, 22 A D 2d 336; People v. Lewis, 13 A D 2d 714; People v. Hull, 12 A D 2d 815; People v. Savage, 5 A D 2d 846.) All three of these conditions abound in this case for the several reasons indicated.
The conviction on the second count should be reversed, on the law and the facts, and a new trial granted.
Wither, Bastow and Henry, JJ., concur with Del Vecchio, J. P.; Gabrielli, J., concurs with the majority as to the reversal and dismissal of the first count, and votes to reverse the conviction of defendant Bauer on the second count (attempted grand larceny, first degree), and grant a new trial on that count of the indictment, in an opinion.
Judgment of conviction (in first above-entitled action) for conspiracy reversed, on the law and facts, and first count of indictment dismissed; judgment of conviction for attempted grand larceny, first degree, affirmed.
Judgment of conviction (in second above-entitled action) unanimously reversed on the law and facts, and indictment . dismissed.