Judgment of the County Court of Nassau county, convicting the defendant of attempted grand larceny in the first degree and conspiracy, and orders, reversed upon the law and the facts and a new trial ordered. The defendant’s guilt was not established beyond a reasonable doubt. Further, in response to defendant’s request to charge that the “ defendants in a criminal case do not have to call a witness on their behalf to prove anything,” *838the court stated: “ They do not have to, but the failure of the defendant to call witnesses which the jury may believe they could call may be considered by the jury. The rule that the defendants need not appear upon the stand does not apply to the rule as to whether they should produce evidence if it is within their power to do so. * * * They are not obliged to. The People still must prove the guilt, but you are asking me to charge that there is no inference to be drawn by the jury by their failure to produce witnesses, which the jury believe they may be able to produce. I cannot charge that.” This was error. No presumption arises and no unfavorable inference may be drawn against the defendant for omitting to call witnesses under the circumstances disclosed by this record. (People v. Sweeney, 41 Hun, 332, 343; People v. McGovern, 105 A.D. 296" court="N.Y. App. Div." date_filed="1905-07-01" href="https://app.midpage.ai/document/people-v-mcgovern-5196521?utm_source=webapp" opinion_id="5196521">105 App. Div. 296; People v. Kilroe, 201 id. 549; People v. Kearns, 214 id. 804.) Lazansky, P. J., Hagarty, Scudder, Tompkins and Johnston, JJ., concur.