¶1 (dissenting). On a previous appeal, we expressly agreed with the contention of the District Attorney that “ The uniform consistency with which Funicello’s trial testimony tallies in its details with those confessions [Summerfeld’s] is cogent proof of its veracity and accuracy.” (282 N. Y. 276, 281.) A new trial has been had for the three defendants other than Summerfeld and a second jury, without recourse to the confessions of Summerfeld, have again found the defendants guilty upon ample evidence. We need not speculate whether the jury found Funicello to be an accomplice or not, for it is submitted that his testimony setting forth in minute detail the perpetration of the crime is corroborated by independent evidence as to each of the defendants. The corroborative evidence need not show the commission of the crime. (Code Crim. Proc. § 399; People v. Mayhew, 150 N. Y. 346, 353; People v. Swersky, 216 N. Y. 471, 480; People v. Cohen, 223 N. Y. 406, 426; People v. Dixon, 231 N. Y. 111, 116; People v. Reddy, 261 N. Y. 479, 484.) The corroboration is not restricted to any particular point and may vary according to the circumstances of the particular case. Matters in themselves of seeming indifference may so harmonize with the narrative of the accomplice as to furnish the tendency to connect the defendant with the commission of the crime. (People v. Becker, 215 N. Y. 126, 139, 140.)
¶2 It is submitted that as to Feolo, the independent evidence tending to connect him with the commission of the crime is, upon the record, stronger than that concerning Brabson. An officer of the New York City Police Department, one Frederick Knocke, identified Feolo as the man who shot him while fleeing from the scene of the murder. Speaking of Feolo, Officer Knocke testified: “ Well, there is something about this man that you can’t forget; it is one of *390 those things, you can remember his face a lifetime.” The record shows Officer Knocke was a careful witness. Instead of testifying as do many witnesses to the conclusion, “ That is the man,” he first testified to the facts from which the ordinary witness draws the conclusion, namely, “ I see the man that looks like the man that shot me.” Questions and answers of Officer Knocke were as follows: “ Q. Do you see in this courtroom the man who shot you? A. Yes, sir. Q. Will you point him out. A. That man sitting next to the court attendant looks like the man that shot me. … Q. So that the record may be clear, which man were you pointing to? A. To that man sitting there, wearing the glasses, next to the court attendant, sitting to the left of the court attendant.”
¶3 Any doubt as to what the officer meant was removed when, upon cross-examination, he was asked to qualify his testimony and said: “ A. Well, I told him I want to be absolutely sure— Q. That’s right. A. I was absolutely sure that he looks like the man. … Q. You appreciate the fact, do you not, that there are any number of persons who look alike and who resemble others — resemble one another? A. Well, this— Q. I mean, just answer the question. You know that to be a fact, as a police officer, do you not? A. Well, there is something about this man that you can’t forget; it is one of those things; you can remember his face a lifetime.”
¶4 It was for the jury to weigh this evidence and, if believed, to be satisfied it tended to connect this defendant with the commission of the crime. In People v. Strollo (191 N. Y. 42, 62) the witness said that “ the defendant resembled the man Strollo ” except that the defendant was stout and had a moustache. Later, on being shown- a photograph of the defendant, the witness declared: “ That picture resembles the man whom I have seen before … under the name of Strollo.” The court in affirming the judgment of conviction of murder held that this testimony was evidence of identification. When the testimony of Officer Knocke is read as a whole, as we are compelled to do, it is impossible *391 to say that it does not connect the defendant Feolo with the commission of the crime.
¶5 As to Mastrone, there is likewise evidence independent of the testimony of the accomplice tending to connect him with the commission of the crime. This defendant, at his own request, sought an interview with the District Attorney. He volunteered the statement that he had “ fingered ” this speakeasy as a suitable place for a crime. This statement included a self-serving declaration, a denial that he had selected the place for this robbery, but rather for an extortion as the proprietor was an ex-convict who would fear to complain. Mastrone admitted that he had made more than one inspection of the physical condition of these premises. The jury were entitled to disbelieve his denial and draw the inference from the affirmative evidence in the admission that Mastrone had selected this place for this robbery since if the crime were extortion, no inspection would be necessary, whereas, if a holdup were intended, then a get-away was necessary and an inspection to facilitate such get-away became essential. (People v. Johnson, 185 N. Y. 219; People v. Demasco, 240 N. Y. 170.)
¶6 It is submitted that upon this record, if the jury found Funicello to have been an accomplice, there is independent evidence to inculpate defendants Feolo and Mastrone as well as Brabson in the commission of the murder.
¶7 Error is claimed in that sentence in the charge wherein the trial judge said to the jury, “ Independent and corroborative proof tending to connect the defendants with the commission of the crime is essential but need not be of great probative force.” When the sentence referred to is read in connection with the charge as a whole on the subject of corroboration, no error is present. In using the sentence objected to, the court was obviously referring to the fact that the corroborative evidence was needed not in reference to the case as a whole, but only to some material fact. In the sentence in the charge immediately following the sentence objected to, the court said that the whole case need not be proved by the independent testimony, but only *392 evidence from an independent source of some material fact tending to connect the defendant with the commission of the crime. In no event has there been shown to be any error here affecting substantially the rights of the parties. (Code Crim. Proc. § 542.) The convictions should be affirmed.
¶8 Lehman, Ch. J., and Rippey, J., concur with Loughran, J.; Finch, J., dissents in opinion, and votes to affirm the convictions of all the defendants, in which Lewis, J., concurs; Sears, J., dissents only as to the defendant Brabson; Conway, J., concurs in the opinion of Finch, J., as to the defendants Feolo and Brabson but votes to reverse and for a new trial as to the defendant Mastrone upon the ground that there is no corroboration as a matter of law.
¶9 Judgments of conviction of Feolo and Mastrone reversed and new trials ordered.
¶10 Judgment of conviction of Brabson affirmed.