Opinion
Argued January 8, 1931
Decided February 10, 1931
Appeal from the Kings County Court.
Max Turner for appellant.
William F.X. Geoghan, District Attorney ( Henry J. Walsh of counsel), for respondent.
We think the judgment of conviction should be reversed on the ground that justice will be promoted by granting a new trial.
The identification of the defendant by witnesses who had seen the struggle from a distance in the hallway of an apartment house is at least doubtful enough to make it improper to execute the death penalty without every reasonable safeguard for the avoidance of mistake.
We think the case is conspicuously one where a view of the premises should be ordered to enable the jury to determine whether an identification in such conditions is one that ought to be accepted.
The judgment of conviction should be reversed and a new trial granted.
CARDOZO, Ch. J., LEHMAN, KELLOGG and O'BRIEN, JJ., concur; POUND, CRANE and HUBBS, JJ., dissent.
Judgment reversed, etc.