The inherent improbability—not to say, as does Dr. Prince, "impossibility"—of making any such accurate identification on the basis of a fleeting glimpse of an unknown man in the confusion of a sudden alarm is affirmed by the testimony of two other eyewitnesses. Ferguson and Pierce, from a window above Splaine and Devlin, on the next floor of the factory, had substantially the same view as the two women. They found it impossible to make any identification.
Thus Ferguson:—
He thinks that he did testify at the inquest in response to the question "How did that man look?" as follows:—"I can't tell it [sic] all. I only had a quick glimpse of him. He looked like an Italian with a growth of beard. It seems just as he shot he just got up from the front seat, and it seems to me he was pulling his cap over his hair."
He did testify at the inquest in response to the question "If you saw a picture, could you recognize him?" as follows:—"I feel pretty sure I could not."
Q. And you can't recognize him now? A. No, sir. (R. 548–9.)
Then Pierce:—
Q. Would you be able to tell the men, the chauffeur, and the man in the front seat? A. I don't think so. I have had pictures shown me by the state police and if it was a matter of looking at a million pictures I couldn't say. I just saw a dark man with a gun, that is all. (R. 544.)
an identification based upon reliable and decisive observations carried by a definite recollection to a conclusion whose correctness admits of no reasonable doubt. If this is a correct estimate of her testimony the conviction ought not to stand and the man be executed." People v. Klvana, 241 N.Y. 481, 487–8 (1926).
