
    The People of the State of New York, Respondent, v. Jack Spickler, Appellant.
    (Argued January 8, 1931;
    decided February 10, 1931.)
    
      Max Turner for appellant.
    The verdict of the jury finding the defendant guilty of the slaying beyond a reasonable doubt is opposed to the weight of the evidence. (Code Crim. Pro. § 528; People v. Becker, 210 N. Y. 274; People v. Guadagnimo, 233 N. Y. 344; People v. Klvana, 241 N. Y. 481.)
    
      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
    The defendant’s guilt was proved beyond a reasonable doubt. (People v. Seppi, 221 N. Y. 62; People v. Trybus, 219 N. Y. 18; People v. Seidenshner, 210 N. Y. 341; People v. Taylor, 138 N. Y. 398; People v. Ferraro, 161 N. Y. 365; People v. Sanducci, 195 N. Y. 361.)
   Per Curiam.

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 a,t 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.  