People v. Becker

At about two o’clock in the morning of • July 16, 1912, in one of the most public portions of the city of Hew York at such an hour, one Herman Rosenthal was shot to death in the street. While he was a gambler and lawbreaker, his murder aroused great public interest and excitement, first, because of the barbarous defiance of law displayed in the manner of his killing, and, second, because he was about to appear before a grand jury and give evidence to establish improper relationship between members of the police force in said city and unlawful resorts, and wherefrom arose the possibility for suspicion that the police had participated in or encouraged the murder.

I think the record and events of which we may take

The underlying theory of defendant’s guilt at the trial and upon this appeal which has been advanced by the prosecution and which, as we must assume, was approved by the jury is, briefly, as follows:

It is charged that in the forepart of the year 1912 defendant entered into a partnership with Eosenthal for the equipment and maintenance of a gambling house, one Eose participating in the undertaking as a representative of the defendant; that subsequently Eosenthal became enraged at Becker because of the conduct of the latter particularly in leading a raid on the house and breaking up his business, and thereafter sought to destroy Becker’s standing and official character by approaching in turn the newspapers, the mayor, the police authorities and the district attorney with information of his unlawful relations to the gambling business; that Becker becoming alarmed by these attempts formed the purpose of having Eosenthal murdered, and secured promises of help to that end from three gamblers and criminals, Eose, Webber and Vallon, the murder compact between them being struck at a meeting held in a vacant lot in Harlem at night some time in June; that these last named individuals, after various delays and excuses, through, the assist-

It is to be well noted that in this theory there is no suggestion that defendant directly participated in the killing of Bosenthal, for, as was frankly stated in his very fair discussion of the facts by the assistant district attorney who argued the appeal, under the People’s theory the defendant may have been a thousand miles distant from the scene of the murder when the crime was committed. But the claim is that the defendant accomplished the murder by proxy twice removed through enlisting the murderous help of Bose, Webber and Vallon, and that these in turn hired another set of individuals, known throughout the record as “gangsters” or “gunmen” who did the actual shooting; and that the complete conception of this scheme occurred at a meeting between Becker, Bose, Webber and Vallon in a vacant lot in Harlem on some indefinite date shortly before the murder.

Prompt preparations were made for the trial of the defendant. The governor appointed an extraordinary term for the trial of him and of others indicted with him, and designated Mr. Justice Q-oee to preside thereat. The trial commenced October 1th, and after contin.uing for nine and a half court days, during which 3,000 pages of evidence were taken, the defendant was convicted and sentenced to death.

A limited review of the evidence on which he was convicted is essential to an intelligent consideration of the questions to be discussed on this appeal.

Notwithstanding the zealous efforts of the district attorney, who with most commendable promptness entered upon an immediate investigation of the crime, absolutely no testimony was given on the trial directly tending to connect the defendant with the murder by other than six witnesses. Without their support the People’s case utterly fails. These gave evidence of alleged conver

One of them, Luban, was produced for the purposes of the trial by the criminal authorities of a neighboring state where he was confined in jail on some conviction or charge whereof the nature does not appear. After being brought to New York and before going on the stand this witness, in a manner which we cannot but regard as significant, was given an opportunity for conference with Bose, the chief witness for the prosecution, and who was immediately to follow him upon the stand. Their evidence was entirely harmonious. Another witness, Hallen, was a degenerate lawyer and convict who also was temporarily delivered from jail to be a witness. In addition to the impeachment of their evidence furnished by their character and by the direct contradiction of other witnesses, much of the testimony of these men is, as it seems to us, inherently improbable and subject to suspicion.

Three of the other witnesses were Bose, Webber and Vallon, gamblers and lawbreakers, already referred to. Undisputedly they were guilty of the murder of Bosenthal. Soon after it occurred their complicity in hiring the men who actually killed him was established, and there was no question that they had forfeited their lives and were subject to the punishment of death. But they claimed that the defendant had instigated them to commit this dreadful crime, and by virtue of this claim they secured from the district attorney, with the consent of the court, as the stipulation recites, an agreement in writing giving immunity to them, conceded murderers, if they would furnish evidence tending to convict Becker, who thus far had only been accused of the crime.

He, too, was testifying against Becker under an agreement of immunity substantially similar in its effect to that which had been extended to the other conceded murderers, and thus we have these four witnesses acting under an agreement sparing the lives which admittedly in the case of three of them, and probably in the case of the fourth, were forfeited, provided they would give evidence to convict the defendant.

Having thus called attention to their character, and to the motives and inducements -under which these witnesses testified, I shall not enter upon any extended analysis of their testimony for the purpose of reviewing the defects and inconsistencies which are charged against it by the defendant, referring simply to a few uncontradicted featxxres.

All of the fom witnesses last named testified concerning the alleged Haxiem conference. Nobody connected with the prosecution or trial of the defendant has doubted that this conference was the very foundation upon which was built the theory of defendant’s gxxilt, for there it was that he, as claimed, definitely enlisted the aid of Bose,

While Becker on their theory was principal in, supervisor and importunate promoter of the plan to murder Rosenthal, the singular circumstance appeal’s that for days before the murder was committed there was no personal conference between him and his agents, but the proposed murder was discussed openly and at times like ■ an incident of subordinate importance between him and Rose over the telephone.

These witnesses in accordance with the terms of the immunity agreement were kept in confinement in a special place of custody and where, as the incomplete evidence which the defendant was permitted to develop indicated, ample opportunities existed for collaboration on the evidence they were to give under their life-saving agreement to convict Becker.

Outside of the evidence given by these six men, it is, to say the least, a grave question whether there is any testimony which under the test required by law corroborates them as to Becker’s guilt of murder. There is other evidence which the jury were entitled to believe tending to show a relationship of defendant with Rosenthal in the gambling business, relations and communications between him and one or two of the conceded accomplices, and that he was a “grafter” so called. But to repeat, it is very doubtful whether such evidence, in the manner provided by law, corroborates the testimony of the witnesses named in connecting Becker with the specific act

There are three other features of the People’s case developed by its own witnesses which deserve mention and consideration.

It is urged that Becker’s fear of Bosenthal’s accusations furnished a strong motive for desiring the death of the latter and that this motive greatly supports the theory of the prosecution.

There is no doubt that evidence of motive for the commission of a crime may be important, although it is perfectly well settled that it does not of itself supply the necessary corroboration required by the statute. But the evidence of such motive in this case is not very satisfying. As has been pointed out, the .People claim that the murder conspiracy was fully hatched at the Harlem conference, probably in June, and if the existence of that conference is not satisfactorily established the case against the defendant falls in utter collapse. Therefore, the inquiry becomes inevitable whether at that time Becker’s fear of Bosenthal was sufficient to lead him to resort to the desperate remedy of murder. The evidence of the People answers this inquiry by showing that at this time Becker was fully advised of Bosenthal’s movements; that the latter had failed to secure the ear of the newspapers or of any of the authorities for his accusations, and that in this respect conditions had not changed since, a short time before, Becker had expressed himself as quite indifferent to Bosenthal’s efforts.

Again, during the few days intervening the publication of Bosenthal’s affidavit accusing Becker of official misconduct, and the murder, all of the evidence, aside from that given by Bose and his co-conspirators, shows that Becker was engaged in strenuous efforts to discredit

Various explanations, not altogether convincing, are given by Rose and his associates for the failure to execute more promptly at Becker’s request the murder plan formed at the Harlem conference, and which it is said he was constantly and importunately insisting upon. Rosenthal’s disclosures showing unlawful police protection of gambling were published on Saturday and Sunday. On the latter day the Sam Paul Association took an excursion, which was attended by some three or four hundred gamblers. Rose and his associates were in attendance, and Rosenthal’s disclosures were a subject of universal discussion, in which it is quite needless to say that there was no expression of sympathy with Rosenthal. He was a “ squealer,” and whatever else happened the upheaval caused by his disclosures boded ill to the gambling fraternity and business. Rose, Webber, Vail on and Schepps were members of and identified with this body, and some or all of them had personal grievances against Rosenthal. The excursion returned Sunday night, and almost within twenty-four hours Rosenthal was murdered, as it is said by the prosecution, under a plan formed by Becker some time in the preceding month, and which had then somehow languished until after this excursion. It is said by the defense that if the exact truth could he known it would be found that the plan to murder Rosenthal was not formulated by Becker

If the Harlem conference ever occurred, as claimed by the People, it is urged that two other witnesses could have testified to it. ’ Rose and his associates testify that they went there in two automobiles driven by chauffeurs. The journey from the starting point was several miles. Rose and Webber at least had attained a position of more than ordinary notoriety in their chosen spheres. Becker was certainly a prominent personage. The conference took place in a vacant lot at night — according to some of the evidence, late at night. It lasted a considerable time, and during it Schepps, according to his story, stood and conversed with one of the chauffeurs. This all occurred a comparatively short time before the murder and alleged disclosures implicating the defendant, and it would seem as though the chauffeurs must have remembered something of it. On the cross-examination of Schepps defendant’s counsel persistently but unsuccessfully endeavored to learn the identity of these alleged chauffeurs. On the motion for a new trial it appeared, however, that during the trial their identity was disclosed to the district attorney, who procured their attendance at his office for investigation and examination, and then they were not produced on the trial. It was claimed by the People on the motion for a new trial that on such examination they simply declared themselves unable to remember any such trip as the unusual Harlem one.

On such evidence and lack of evidence, and also much testimony contradictory of it offered by the defendant, a jury has decided that Becker was guilty of the murder of Rosenthal and ought to be put to death. It is insisted by the defendant with all the earnestness possible that the People’s evidence, independent of that offered by the defendant, is so impeached and discredited that it would not afford a safe basis for a judgment in an ordinary civil action and that much less is it sufficient to sustain a verdict which will result in taking a human life, and we are asked to set it aside as against the weight of evidence.

The law does cast upon us in such a case as this the burden and responsibility of deciding before permitting execution whether a verdict is supported by the weight of evidence. That, of course, does not mean that we are to take the place of the jury in passing upon those ordinary questions of the reliability of witnesses and of the credibility of testimony which constantly arise in trials or that we are to overturn the verdict simply because as an original proposition we might have reached a different result. It does mean, however, that we must say if that question should be reached whether, taking into account the undisputed and clear infirmities of the People’s witnesses and case, we believe that there is still

While no one doubts that in the great majority of cases the character and credibility of witnesses and the believeability of testimony should be left to the final determination of a jury, yet the fact that the statute imposes upon us the absolute duty of deciding whether a verdict in a murder case is against the weight of evidence would seem to make it equally plain that the law contemplates the possibility that a jury may be swayed or led into giving an unjust and unwarranted verdict and requires us to correct the error when it does occur. Some of my associates believe that the contention of the appellant is entirely correct and that the present verdict should be thus set aside. But since the consideration of that question might lead to a difference of opinion amongst the majority members of the court, I propose to pass it, expressing no view either way, and proceed to the discussion of another proposition concerning which there will and can be no difference of opinion.

In the presence of such dangerous and degenerate witnesses as have been described and under all the conditions attending and surrounding his case, the defendant certainly was entitled to a scrupulously fair and impartial trial where nothing should be done to prejudice his case or to obscure in the minds of the jurors the elemental question whether the evidence justified them in reaching the conclusion that he was guilty of the grave crime with which he was charged. He was entitled to have his counsel and case treated with that consideration which they justly merited; that not only questions of law should be properly decided, but that questions resting more or less in discretion should be reasonably disposed of; that, however unintentionally, no spirit of hostility and of dis

We do not think that the defendant had such a trial. We think that he suffered grieviously from the erroneous disposition both of questions of law and discretion.

It is of course difficult to portray in an opinion the atmosphere which seems to have surrounded the trial of a long case. This is produced by many incidents and events which can only be appreciated by reading an entire record, and it would carry an opinion beyond permissible limits to attempt to describe many of these in detail. Even when confined to a summary and illustrations it • becomes burdensome in its length and yet this much seems necessary and just to both sides as against a mere statement of conclusions.

At the very opening of ■ the trial there occurred an unfortunate scene which fairly foreshadowed the relationship of antagonism which was to prevail between the trial judge and defendant’s counsel. When the trial was moved an application was made by the defense for an adjournment because of the sickness of one of the leading counsel and concerning the good faith of which application the district attorney expressly stated that he made no question. This motion was promptly and, very probably, properly denied. The defendant’s counsel then stated that he had another motion for postponement of the trial on the ground that defendant could not obtain a fair trial, upon which he desired to be heard, whereupon the following colloquy took place:

“The Court: Have you embodied these matters in an affidavit ?

“Mr. McIntyre: Yes, sir, I recite my facts, and will commit them to an affidavit in an instant, but if you will hear me —

“ The Court: I will not hear you.

“Mr. McIntyre: I desire to be heard.

“ The Court: I desire that you be not heard upon this matter. If you have a motion supported by affidavit I will hear it.

“ Mr. McIntyre: Will you indulge me one instant ? * * *

“The Court: No, no, stop; nothing further; I deny your motion.

“Mr. McIntyre: Are we going to be forced to trial in the face of the statement made by the district attorney that Zelig (a ‘ gang ’ leader who had just been killed) was an important witness, when he knew he was not a witness to be called on behalf of the state ? * * *

“The Court: Let us understand each other at the commencement. This is a court of justice. It is not a place for the display of eloquence or emotion. * *' ""

“Mr. McIntyre: The orderly course of justice has been disturbed by the prosecution.

“The Court: If you continue I shall be under the unpleasant necessity of directing the court officer to remove you out of court!

The incident complained of had occurred in the presence of the court, so that there was little need of an affidavit. Mr. McIntyre was the leading counsel for the defendant who bore the brunt of the subsequent trial. His client was on trial for his life, and this was the introduction of counsel to the panel from which the jury was then straightway selected.

In opening the case, notwithstanding the strenuous objections and exceptions of defendant’s counsel, the district attorney committed the serious error of making many statements either in words or to the effect that Becker was a “grafter,” and was collecting blackmail and protection money from gambling houses;, that as time went on he became more avaricious and bold and that his power became generally recognized by keepers of illegitimate resorts; that he accumulated large sums of

It could not of course be competent and proper for the prosecution to show as part of its case that Becker had been guilty of general corrupt conduct having no possible relation to the present crime. He was on trial for murder and not general official misconduct and corruption. And equally there can be no doubt about the very prejudicial character of these statements. In its quest for motive the People’s entire theory of defendant’s guilt rests on the allegation of ‘c graft ” in connection with Rosenthal, and the repeated statements to the effect that Becker’s misconduct was not confined to Rosenthal but was habitual and flagrant necessarily must have inflamed the minds of the jury. They present no vexed or uncertain question of error. While the courts are, as they should be, ready to make due allowance for some inadvertent slip made by zealous counsel in the heat and struggle of a bitterly contested trial, that consideration of course does not apply to the presiding judge, and no case will be found where there has been overlooked the failure or refusal of-

This much is practically admitted by the prosecution on the appeal and the only real answer attempted is that subsequently the defendant introduced in evidence a statement made by Rose to the district attorney wherein the former in giving a purported history of the alleged conspiracy to murder Rosenthal made accusations of extended corrupt conduct by the defendant in making collections from disorderly persons and that this cured the error. I do not think that this answer is sustained. This took place long after the statements of the district attorney had been made and allowed to sink into the minds of the jury and as a practical consideration the authoritative statements of the district attorney would be far different and more damaging than the unverified accusations of such a person as Rose.

But beyond this, as is more fully shown hereafter, the defendant’s counsel tried to obtain this statement from the district attorney while Rose was on the stand solely for the purpose of cross-examination and impeachment and the court refused to direct the district attorney to produce it for that purpose as should have been done, to which exception was taken. After this erroneous action on the part' of the court/ the defendant’s counsel did express a desire to put the paper in evidence, manifestly for the purpose of contradiction and impeachment, and finally through the action of the court he was forced into an agreement before seeing it that if the district attorney would produce the paper he would put it in evidence. Under such circumstances we think that the effect of the paper should have been limited to the purposes and extent of contradiction and impeachment for which defendant’s counsel desired it and that it should not be regarded as

The taking of evidence then commenced.

It may be stated very briefly but accurately that repeatedly without any objection, complaint or request by the very able and alert district attorney, the court on its own motion criticized the defendant’s counsel for some little peculiarity in the form of his questions which was utterly innocuous; intervened to protect the People’s witnesses on cross-examination; objected to and excluded questions asked by defendant’s counsel and on one occasion when such counsel asked if the district attorney would concede a fact about which apparently there was no dispute, the court ruled for the district attorney, “ No, I will not let him concede it.”

At times on making an objection or asking a question, which does not appear from the record to have been contumacious or ridiculous, or on attempting to make a suggestion or give a reason in what seems from the record to have been a respectful manner, defendant’s counsel was told that he .was “becoming trivial,” and commanded to “ sit down,” or “Mr. McIntyre, you know better than to object,” or that “there is no necessity of being so explosive about it,” or “Now wait, stop that manner,” or “You will save time by not indulging in so much talk,” or “No argument.” Perhaps in the interest of exactness we are justified in quoting two passages, the first of which occurred on the cross-examination of the People’s important witness Luban.

‘ ‘ The Court: This has been all gone over. I will declare this examination closed if there be no further question. The witness has been under cross-examination for two hours and a quarter.

“Mr. McIntyre: I can’t help it, your Honor.

“The Court: It will be helped unless you put the question. No discussion at all. I have told you what I will do.”

“ The Court: How is that material ?

“Mr. McIntyre: I am going to show that there was a conversation.

“ The Court: Not what you are going to show. * * *

“Mr. McIntyre: I wanted to show that there was opportunity to conspire and confer.

“The Court: Cometo order. I shall not hear what you wanted to do. I will only hear questions.

“Mr. McIntyre: Tom’ Honor asked me how it was material.

“The Court: I asked the district attorney.”

The district attorney had taken no part in the incident.

At other times haste seemed to become the essence of the trial and defendant’s counsel on asking some question or requesting some not unusual indulgence were harshly admonished to “get along” or “go along,” or “time is too precious.”

On one occasion when the leading counsel for defendant pleaded weariness and asked that his associate might take his place in the cross-examination of a witness, the request was summarily denied. On another occasion it was proposed as an apparent reason for denying counsel’s request for an adjournment that the cross-examination be turned over to his associate.

With one exception, so far as we are able to discover, every appeal by defendant’s counsel to the discretion of the court for an adjournment, for the very common leave to reopen the examination of a witness in order to correct some inadvertent omission or utilize on cross-examination of a hostile witness some newly-acquired information or to call a witness who had been absent was denied, whereas applications of a similar character on the part of the People were quite uniformly granted.

A witness named Shea was. an important one for the defense, and he was cross-examined at considerable

“Mr. Hart (defendant’s counsel): I just want to ask one question.

“ The Court: Ho. Call your next witness.

“Mr. McIntyre: We desire to call the witness for several questions.

“The Court: I shall not permit you. Time is too precious.”

It was no exception that the district attorney, without objection or criticism, was allowed a redirect examination of his witnesses.

At the close of the original examination of Schepps the following occurred:

“ Mr. McIntyre: I don’t think I can conduct the cross-examination any further on the main issue. I am too exhausted. I am too tired.

“ The Court: Let us have no more about exhaustion. We have heard enough about that.

“The Court: * * * Have you another witness

waiting, Mr-. District Attorney ?

“Mr. Whitman: Mrs. Rosenthal has been waiting all day. * * * She appears to be exhausted. I will call her if your Honor thinks best. Her examination will-take some time.

“ Mr. McIntyre: I join in the request. Wont your Honor please adjourn to-night %

“ The Court: Yes.”

On some occasions the adverse rulings of the trial judge passed beyond the limits of discretion and were erroneous as matter of law. On the cross-examination of Vallon, one of the confessed accomplices and murderers, he was asked about the immunity agreement which had been executed with the district attorney, and was quite meagre and inaccurate in his evidence about it. Thereupon the district attorney was asked, and declined to produce it unless ordered so to do by the court, and the court refused

It cannot be said that this error was corrected, because long after Vallon had left the stand and the opportunity for such cross-examination had passed the court did direct that this agreement be produced, and it was placed in evidence by defendant’s counsel.

A somewhat similar occurrence took place on the cross-examination of the People’s witness Schepps. After the murder Schepps fled to Hot Springs, Arkansas, and subsequently the defendant took the evidence of various apparently reputable people there concerning statements and admissions by him which seriously impeached the testimony which he gave for the People. Those commissions had been returned and were sealed and under the control of the court at the time of the trial, and on the cross-examination of Schepps the defendant’s counsel repeatedly urged that the court should order them opened so that reference might be made to the evidence of these witnesses for the purpose of framing exactly, as was necessary, questions to be put to Schepps as a basis for the impeaching testimony. This the court refused to do unless counsel would agree to read the commissions in evidence. The request of counsel was a reasonable one and in the interest of expedition. The ruling was objectionable, and even if it be true that finally the trial judge with a somewhat labored explanation did reverse his

Again, on the cross-examination of the People’s witness Rose, it developed, as has already appeared, that he had prior to the trial prepared and given to the district attorney a statement or confession relating to his participation in the murder, and of which a purported copy had been published in the World. Defendant’s counsel tried to utilize the latter for purposes of cross-examination, but on the objection of the district attorney this effort was stopped, He then asked the court to direct the district attorney to produce the original for purposes of cross-examination of Rose. This the court declined to do, and it was not until several days after Rose had left the stand that defendant’s counsel obtained from the district attorney this paper after he had been forced, as we think it may fairly be said, by the latter and the court into an agreement before seeing it to put it in evidence as a whole, and the court had even gone to the extent of formally compelling the defendant’s attorney to modify his description of it “ as a confession or statement to the district attorney,” so as to conform to what seemed to be the somewhat sensitive desire of the latter to have it known as “a paper.”

Rose, Vallon and Schepps were confined in a special place of detention pending the trial. They were engaged in the common undertaking of attempting to save their own lives by placing in forfeit that of Becker. As a matter of common sense there can be no doubt that it was important to know whether they were in constant communication with each other, and as matter of law there can be no doubt that it was proper to show this on cross-examination of any one of them. The exclusion of such evidence was error of law, and on such a plain and important point it is no answer to say that somewhere

The trial judge assumed what seems to us to have been a different attitude toward different witnesses. One called by the People, like Ryan, who apparently failed to give expected or satisfactory evidence, and another like Reich or Sullivan, who gave testimony in behalf of the defendant, were treated with considerable harshness, even considering all of the latter’s alleged defects, and subjected to examination and admonition by the court which plainly implies to our mind the intimation as it must have to the jury that they were committing or were liable at any moment to commit perjury. On the other side was the witness Schepps who after various negotiations returned from Arkansas with an assistant district attorney for the purpose of being a witness against Becker. There can be no possible question concerning the character of this man or concerning the extent to which the truthfulness of his evidence as a whole was impeached. On his cross-examination the court volunteered to inform him that he might decline to answer certain questions on the ground of privilege; he was excused by it from answering directly certain questions which it was proper should thus be answered and he was allowed to insult the defendant’s counsel without rebuke while the defendant’s counsel was sharply admonished that he must give the witness fair treatment.

In the cases of at least four witnesses questions asked by the defendant’s counsel were excluded or the examination terminated, the exclusion in some cases being accom

Bose, in addition to being a professional lawbreaker and one of the conceded murderers of Bosenthal, who had procured immunity from the death penalty by agreeing to give and giving evidence to convict Becker, was apparently a person of quite superior intellect and shrewdness and was especially relied on by the prosecution to sustain its theory and fasten the charge of murder on the defendant. He was described by the trial judge as “ manifestly the most important witness for the prosecution.” He was the first one of the conceded conspirators and accomplices to be placed on the stand by the prosecution and the others closely followed the line of evidence given by him. His direct examination by the district attorney commenced with the opening of court at ten o’clock and continued with a short intermission for luncheon until 2:30 in the afternoon and was of the most important character, covering a very wide range. He was then taken by the defense for cross-examination which was

Subsequently the trial judge to justify his course stated that it was in the interest of justice and for the benefit

It seems quite unnecessary, as the result of the most ordinary experience, to discuss the proposition that a jury, unaccustomed to any such confinement, at the end of a week would be able beneficially to concentrate their interest and attention on the examination of a witness after it had been continued for ten hours. It is sufficient to say so far as the defense is concerned that it did not request any such purported protection from the trial judge as he was giving, but, on the' other hand earnestly protested against it. Therefore, the prosecution alone must have derived any benefit resulting from this course and the question is, was it justified ?

It is to be admitted of course that the duration of examination of a witness must he to a considerable extent under the control of the trial judge and that he has the power if- it is unduly and uselessly protracted to finally place a limit upon it. The cross-examination of Eose was continued through six hours, but it is to be remembered that his direct examination by the district attorney who was fully advised what to ask him occupied nearly four hours; - that a cross-examination of an astute and unscrupulous witness to be of any value cannot proceed with the directness which should characterize a direct examination, but of necessity must often approach a subject in an indirect and roundabout manner, and, moreover, that during the final two hours Eose’s cross-examination was conducted by counsel after he protested that he was exhausted and was begging for indulgence and an opportunity to procure food.

But, beyond all this, it is perfectly clear that the mere loss of time in the examination of this witness was not the important consideration with the trial judge. The

Thus we find the controlling purpose of the trial judge not economy of time or duration of examination but the determination that the defendant’s cross-examination should be closed on the same day as the direct examination, and we must rely somewhat on conjecture for an explanation of the ultimate and precise reasons which induced him to take this view of his duty.

It is earnestly insisted by the defense that the purpose was to prevent it from having an opportunity to cross-examine Rose after examining and considering during the adjournment his evidence on the direct examination for the purpose of detecting weaknesses and inconsistencies therein, and thereby becoming better enabled to force him to “ re-create ” his story; also that it permitted Rose, with his cross-examination fully completed, to return to a conference with Webber, Vallon and Schepps who immediately followed him upon the stand and thereby more surely secure full and complete accordance in all of their evidence.

It is unnecessary to consider this claim of the defendant and whether the trial justice may have been influenced by any such consideration. I assume for the purposes of this discussion that his rulings were inspired by motives which he deemed to be praiseworthy and in the interest

Bose was concededly the most important witness of the People. If, as claimed by the defense, a wicked conspiracy was framed by him and his associates to throw upon the defendant the responsibility for Rosenthal’s murder and thereby secure immunity and save their lives, Bose was clearly the inventor and chief promoter of this conspiracy. He was not only in custody but under the supervision of the district attorney’s office and, therefore, there was no danger that he would he spirited away or tampered with during an adjournment even if any one had been willing to engage in such an enterprise, which we do not at all assume.

The mcst apparent danger was the one of a shift or “re-creation” in his evidence which seemed to affect the mind of the trial justice. This danger if it existed was one which threatened the prosecution. No “re-creation ” of his story was a source of danger to the defendant, for no matter what form it took, an inability or unwillingness on the part of Bose to tell upon cross-examination after adjournment the same story which he had related upon his direct examination would discredit him and inure to the benefit of the defense. We do not think that it was the duty of the trial justice to protect the prosecution against this danger by any such unusual course as was pursued. The defense should have had an opportunity for a searching, complete and advantageous cross-examination of Rose such as was not afforded at the end of long and unusual hours when counsel was exhausted mentally and physically. We think that the ends of real justice in a case where a man’s life was at

Whatever complaints may have arisen concerning other feature of trials, there has not been, so far as I am aware, any disposition to criticise or curtail the opportunity for a full and satisfactory exercise of the right of cross-examination and concerning which it has been written by a distinguished authority: “ Cross-examination as a distinctive and vital feature of our law. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.” (2 Wigmore on Evid. § 1367.)

It is perhaps unnecessary to have spent so much time in discussing this unfortunate incident because of what was subsequently done by the court and district attorney and which practically amounted to a confession of error. At the close of the People’s case and after Webber, Vallon and Schepps had all been sworn and testified in harmony with Eose and after various other witnesses had been called and several days had elapsed, the assistant district attorney recalled Eose for the ostensible purpose of asking a few not very material questions, most of which, without any struggle on his part, were ruled out by the.court. After this Eose was tendered to the defendant “ for further and complete cross-examination” subject to the permission of the court. The court very graciously and promptly per

It very often may happen that an error of the trial court in excluding some limited and well-defined piece of evidence may be fully and fairly corrected by a reconsideration of his ruling and the admission of the evidence. But that is not at all this case. Any cross-examination of Rose had for its object the impeachment of his evidence as an entirety. Days had elapsed since he had left the stand during which his evidence had been permitted to lie in the minds of the jury, and hundreds of pages of evidence of other witnesses had been given. His associates had followed him, upon the stand and completed their testimony. It is fair to assume that the district attorney had warned him as his principal witness that the offer would be made to permit his further cross-examination. Nothing indicates that the counsel for the defense had received any such notice of what was to be done and thus given any opportunity to prepare for it. As has been stated, the prior examination had occupied ten hours and filled hundreds of folios. The court doubtless would have forbade any further cross-examination which covered ground already traversed, and on the other hand it would have been practically impossible for counsel to remember all that had occurred. Under such circumstances the hour for profitable cross-examination by the defense had passed. All connection had been lost. The attempt to exercise it would have been profitless, and the only important result would have been to cure the errors of the court by sacrificing the rights of the defendant, and this course we do not think that defendant’s counsel was called upon to pursue.

In his charge at the close of the trial the presiding judge defined with accuracy many of the principles of law

In People v. Fanning ( 131 N. Y. 659 , 663) it was thus written by Judge Peckham on the subject of marshalling the evidence by the judge in his charge in words which we think are sufficiently pertinent to render any comment unnecessary. He said: “In a criminal case we think the judge has the right, and indeed it is h,is duty to present the evidence to the jury in such light and with such comments that the jury may see its relevancy and pertinency to the particular issue upon which it was admitted, and thus be better qualified to appreciate its character and weight and to determine its credibility. These questions are for the jury, but it is proper that a judge should assist the jury in marshalling the evidence so that they may the more readily and intelligently come to a conclusion which shall be satisfactory to themselves, consistent

As was anticipated, we are quite aware at the end of this statement of some of the occurrences and rulings upon this trial that it does not adequately or satisfactorily reproduce the impressions which have been created by a study of the entire record and yet it will perhaps sufficiently for the purposes of this opinion illustrate and indicate the attitude of the trial judge toward the defense an.d which was in marked contrast with the harmonious relations which prevailed between the court and the prosecution.

It may be freely admitted that some of these occurrences and rulings considered simply by themselves are not of great importance and might be disregarded even in this case. Still others of a more important character considered by themselves would probably be disregarded in a case where the evidence of guilt was so clear that we could conscientiously and honestly believe under the obligations imposed upon us that justice had been done in spite of them, for there need be no doubt that in a case of clear and manifest merits this court will exercise the power conferred upon it and disregard errors which in its opinion have not interfered with the ends of justice. It has done this so repeatedly and uniformly that no citation of authorities is necessary.

But we are not thus considering these occurrences and rulings singly or in groups of two or three and we are not considering them in a case of clear and convincing merits where, for instance, there is no question concerning the homicide by the defendant and where reliable evidence leaves little chance for doubt concerning the existence of those other elements which enter into the crime of murder. We are considering them as an entire series in a case where proof even of a distant connection

Under such circumstances we are unwilling to say either that these rulings as a whole did not involve substantial error or that it is so clear that the defendant should be executed that they may be disregarded. On the contrary, we believe that the very opposite of these propositions is true; that these errors, certainly in the aggregate, are so substantial and serious that they ought not to be disregarded and the defendant sacrificed. (People v. Greenwall, 108 N. Y. 296 , 302; People v. Fielding, 158 N. Y. 542 , 550.)

So far as these erroneous rulings involved questions of law it is unnecessary to discuss them at greater length for the principles applicable to their consideration are familiar.

So far as concerns rulings upon questions ordinarily classed as discretionary, let it- be distinctly said that we have not been unmindful that a trial judge may inadvertently err and should have a fair opportunity to correct his inadvertence, and that such a judge must and should be invested with large powers of discretion and authority to the end that the trial may proceed with order and justifiable expedition to its final conclusion. If it be at all necessary specifically to recognize and reaffirm these principles, we do so.

Neither do we overlook the argument in this connection that in this case the defendant’s counsel took several hundred objections and that whatever discretion was exercised against him by the presiding judge was but just repression and condemnation of methods which were obstructive and

The rule of discretion to which we have referred as abiding, with a trial judge rests for its foundation upon the conception of a judgment exercised at every stage with open mind, fairly and impartially and in the interest óf exact justice between People and accused, and when we find extending throughout a trial a series of rulings so repeatedly and consistently adverse to one side even upon reasonable requests as to indicate that the trial judge has yielded, however unconsciously, to a feeling of hostility and, with whatever praiseworthy motives, to the thought that presumptively justice will be best subserved by generally and constantly denying the requests of one side, we must conclude that there has been a loss of that open-minded discretion and well-balanced judgment

The fundamental demand of our law is that the accused shall have a fair trial, and that if that right has been infringed, not in respect of mere technicalities but in substantial matters, and however undesignedly, he shall have another opportunity to meet his accuser and establish his innocence. That in our opinion is the present case. Under the rulings of the court the defendant did not have that manner of trial which the law guaranteed to him. His counsel was hampered and embarrassed; his case was discredited and weakened; full and impartial consideration by the jury was impeded and prevented. He never had a fair chance to defend his life and it would be a lasting reproach to the state if under those circumstances it should exact its forfeiture. (People v. Wood, 126 N. Y. 249 , 269; People v. Barberi, 149 N. Y. 256 ; People v. Davey, 179 N. Y. 345 , 347; People v. Wolf, 183 N. Y. 464 ; People v. Freeman, 203 N. Y. 267 , 271; People v. Kinney, 202 N. Y. 389 , 397.)

The principle of what was written by Judge Werner in the Davey case, although said under other circumstances and in the case of a different crime than murder, is cogently applicable. The case was one where from the nature of the offense charged some of those feelings of popular prejudice and passion were liable to be aroused which it is contended were not lacking in the present

And as was again said by Judge Vaw in People v. Wolf: “An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge. However strong the evidence against the defendant may be, if she did not have a fair trial, as shown by the rulings of the court * * * the judgment of conviction should be reversed and a new trial ordered so that she may be tried according to law. ” (p. 472.)

The judgment of conviction and order denying a new trial should be reversed and new trial granted.

(concurring). I concur with my brother Hiscook. The conduct of the trial was grossly unfair to the defendant. Indeed, it is impossible to portray in an opinion the spirit of unfairness which pervades the record, from cover to cover. A careful reading of it has created, and subsequent study has strengthened, the conviction in my mind that the verdict was produced by the compelling influence of a forceful judge, whose prejudgment of the cause had unconsciously created a predetermination to convict the defendant. In my opinion it would be a reproach upon the administration of justice to allow the

At the outset, I deny that the verdict of the jury forecloses consideration by us of the character and credibility of witnesses or of controverted questions of fact arising upon conflicting evidence. The answer of the learned district attorney to the appellant’s argument on the facts is that the jury believed the Péople’s witnesses, and we are cited to many opinions of this court containing general expressions which, it is claimed, establish the rule that in case of a conflict of testimony we are powerless to review the facts. Those statements mean only that this court will not interfere with the verdict of a jury on a mere question of the credibility of witnesses. Otherwise, we should be limited to a review of the question of law, whether there is any evidence to support the verdict, although the statute (Section 528 of the Oode of Criminal Procedure) says: “When the judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.”

The last statement of this court on the subject is found in an opinion of the present chief judge, concurred in by the entire court, viz.: “The case resolved itself into a question of credibility, and there is nothing in the record to indicate that the jury passed upon that question incorrectly. The fact that a jury in a criminal case has chosen to believe one set of witnesses rather than another set, upon an issue where the conflict between them is irreconcilable, affords no ground in and of itself for interfering with the verdict. (See People v. Ferrara, 199

My brother Werner has narrated the facts, as claimed by the People, which he thinks tend to establish the defendant’s motive for the crime and his participation in its commission. Although the evidence relating to them presents a mass of contradictions and inconsistencies, I shall assume for the purpose of this discussion that the facts thus narrated are established. They do not singly or together tend to connect the defendant with the commission of the crime. They do furnish ground for argument on the question of motive, and they do show the defendant’s relations with Rose and the latter’s relations with the “gunmen.” Proof of motive is always of great importance, but it is a novel proposition to me that such proof in and of itself tends to establish the defendant’s participation in the crime or supplies the corroboration of accomplices which the law requires. (See People v. Ledwon, 153 N. Y. 10 , 20.) The record bristles with inconsistencies and contradictions on the main facts, which I shall not take the time to discuss, as I propose to confine myseJf to matters which are either uncontroverted or are testified to by the People’s witnesses. My proposition is that the case made by the People will not stand analysis.

It will clarify the discussion to remove from' the case an atmosphere inimical to the defendant, which has surrounded it from the start, and which the People’s principal witnesses cunningly and insidiously injected into it at every opportunity. That atmosphere has been created for the most part by three assumptions directly contrary to the conceded and established facts, viz.:

1. That the publication in the Mew York World on Sunday, July 14th, 1912, of Rosenthal’s affidavit contain

According to the People’s theory the murder plot was fully matured, so far as the defendant’s participation was concerned, weeks before that publication.

2. That the place and manner of the homicide, and the temporary escape of the murderers, suggest police complicity.

There is no pretense that the defendant knew when, where or how the crime was to be committed.

3. That the “gunmen” were actuated to do the de'ed by the command and under the promise of protection of some one “higher up.”

There is no pretense that the defendant had any relations whatever with the gunmen, except that the People charge that he caused their chief to be twice arrested by means of a so-called “plant.” But the fact established by the People is that the “gunmen ” did the deed for pay, $1,000, which was furnished, not by the defendant, but by Webber, the People’s chief witness next to Rose. My brother Werner is in error in saying that the record discloses no connection between the “ gunmen ” and the gamblers. There is ample evidence of an intimate association between them, which I shall not discuss further than to call attention to the evidence relating to Bam Paul and his association; to the fact that Rose and Webber furnished bail for Zelig; to the fact that Rosenthal himself had used men of that character on former occasions to injure Webber and Vallon, or at least so they thought, and to the further fact that, according to his own story, Rose was in communication with the “ gunmen ” before the defendant even said a word to him on the subject of murdering Rosenthal.

It will now be useful to determine precisely what is essential to sustain the verdict. In the last analysis the case in its legal aspect rests on the testimony of Rose, Webber, Vallon and Bchepps, to a very slight extent

I now roughly sketch the story of the crime as narrated by the People’s witnesses. At some time not named, possibly as early as May, the defendant employed Bose to employ the “gunmen” to murder Bosenthal. Bose.visited them and told them what the defendant wanted. They readily assented and offered to do the deed at once, but Bose said to wait and to hold themselves in readiness to respond to his call, to which they assented. The next day Bose reported what he had done to the defendant. He continued to visit the “gunmen” two or three times a week, to use his words, “ always instigating them to kill Herman,” although they had been ready from the start to do it on notice from him. Bose delayed the execution of the plot because as he says he was “between two fires,” the defendant and the “gangsters,” and hoped that the murder would not be necessary. The defendant, becoming impatient and thinking that the “ gunmen ” might have confidence in Webber, asked Bose to enlist the latter’s aid, and appointed a meeting in Harlem, on a date not named, but probably in June. Bose and Webber kept the appointment, taking Vallon and

The story itself is grossly improbable and it is related by four men of the vilest character to save their own lives. I admit that those considerations are not controlling. Improbable crimes are committed, and the People have to use the witnesses available. But I emphatically deny that we are obliged to sign the defendant’s death warrant simply because a jury has believed an improbable tale told by four vile criminals to shift the death penalty from themselves to another. I now proceed to the principal considerations which lead me to think that the improbable story is incredible.

1. The defendant had no adequate motive, when the People say he committed the crime.

He knew that Rosenthal was trying to injure him, but in fact he had no fear. That is established by his treatment of Rosenthal and by what Rose admits he said. True, Rose and the others had to show motive, and so they made him constantly talle about what would happen when Rosenthal reached the district attorney. Webber and Vallon’s testimony as to what was said on that subject at the Harlem conference agrees with such literal exactness as to prove that they had studied and together rehearsed their parts. But more important still, the defendant had no reason to fear. He knew that Rosenthal had tried to get the newspapers to publish his story and failed; that he had complained to Magistrate Corrigan and Chief Magistrate McAdoo that his place had been raided by the defendant on “framed up” affidavits and they had refused to listen to him; that he had tried to reach the police commissioner and the mayor and both had ignored his complaint as that of a gambler, whose place had been raided by the defendant, and that he had tried to induce the district attorney to institute a criminal prosecution and the latter had investigated and

2. The defendant neither feared nor had reason to fear Rosenthal until the World decided on Saturday, July 13th, to publish the latter’s affidavit. If he had planned murder before that, he then knew that suspicion would point to bim at once upon the execution of the plan.

In view of his rise to the position of lieutenant of police, he must be credited with at least a grain of sense and with some knowledge of how crimes are detected. If it be assumed that he feared publicity, that had occurred; and if he then had cause to fear removal or a criminal prosecution, both the publicity and that danger were bound to be increased immeasurably by Rosenthal’s murder. He: certainly had less to fear from the uncorroborated charge of being interested in a gambling place made by a discredited gambler than he had from a charge of murder committed with the aid of eight of the worst criminals to he found anywhere,, which was sure to be laid at his door. Before the World publication the defendant had no adequate motive to commit murder; after that he had the strongest motives of self-preservation not to do so. The People say the crime was committed so far as he was concerned long before that publication; the motive generally ascribed to him was furnished by it. In this connection one of the many illuminating inconsistencies in Rose’s story may be noted. In his zeal to show a motive back when he says the plan to murder was formed, he relates a conversation with the defendant about the impending publication of Rosenthal’s affidavit in the World which was not even contemplated until weeks later.

3. The defendant’s conduct just before and after the World publication, aside from the alleged murder talk with Rose on the telephone, was utterly inconsistent with any thought of murder in his mind.

My brother Werner seems to attach importance to

4. The defendant’s request did not in fact supply the motive which induced Rose, Webber, Vallon and Schepps to commit the murder. This is shown to a demonstration.

Note the sequence of events. The request is made of Rose, he sees the “ gunmen,” they are in readiness, nothing remains but for him to give the word, but nothing - is done. Webber is called in because of his supposed influence with the “gunmen;” still days lengthen into weeks, and nothing is done. Rosenthal publishes his affidavit, an investigation of the doings in the underworld and especially of the gambling business is impending; one of their number, against whom the evidence shows Rose, Webber and Vallon each had an independent personal grievance, has become a “ squealer; ” preparations begin, and within a short time Rosenthal is dead. It would take too long to analyze all of the inconsistencies in Rose’s attempted explanation of the delay in executing the murder plan. They are many and of such a character as in my opinion to stamp his story so far as it involved the defendant as a pure fabrication. One fact is too plain to be denied. Rose and his associates required an independent motive. It was supplied by an event which cast suspicion on the defendant. Here note another - piece of illuminating testimony. Rose makes the defendant say to him in the last telephone conversation before the murder: “ Now, there is still time, to-night is the time and it will just fit. It will look like the gamblers did it on account of his threatened squeal.” Imagine the defendant telling the men whom he had employed to commit murder that the time was ripe because they would be suspected! Rose doubtless reflected, and found security in the reflection, that suspicion would be cast on the defendant; and with the kind of cunning frequently exhibited by such men, it occurred

It may be said that the foregoing considerations admit of argument. Let that be granted. I now come to two matters concerning which, it seems to me, reasonable minds cannot differ, and which add to improbability and incredibility a virtual demonstration of falsity.

1. The story of the Harlem conference is incredible on its face and the manner of its narration by the witnesses proves it to be a pure fabrication.

The district attorney does not deny, and the dissenting opinion admits, that it is essential to the People’s case. It served no possible purpose except to supply witnesses to a murder compact. It is said that the “gunmen” were actuated by the defendant’s powerful influence, but the alleged purpose of the Harlem meeting was to secure Webber’s influence with them, and Eose already had their promise to do the deed on call. True, Eose says the defendant accused him of “stalling,” but if the defendant did not trust Eose, he would not have been likely to call in another whom he trusted less. If, as the People claim, Eose was the defendant’s confidant, “ stool-pigeon ” and collector of “ graft,” he might possibly have employed him as a “go-between” even to arrange a murder compact, but it is improbable that he would have called in a second “go-between,” and incredible that he would have admitted a third and a fourth for no purpose whatever. If he wanted to talk with Webber, he could have done it without calling him to ■ Harlem and without having witnesses present; and yet he is accused of having asked Eose to bring Webber to Harlem to plan a murder, and then of having calmly proposed the murder in the unexpected presence of a third person, a comparative stranger, while another stranger stood just out of hearing to be a corroborating witness. How note, the place-of the appointed meeting was Harlem; the time,

2. Schepps was an accomplice.

I now briefly outline his connection with the case

It is of no consequence that, independently of Schepps, there may have been barely sufficient corroborative evidence, though unworthy of belief, to take the case to the jury. Schepps not being an accomplice was an essential element of the story told by him and his fellow-murderers, precisely as the Harlem conference was an essential part of it. Those men knew the rule of law requiring corroboration of the testimony of an accomplice. The correspondence between Rose and Schepps while, the latter was at Hot Springs proves it. They did not propose to run the risk of a failure of consideration on their part, and so they framed up their story so as to keep Schepps just out of hearing of the actual murder talk. Rose did not trust his confidant and inseparable companion until

The learned trial judge forcibly pressed upon the consideration of the jury the impossibility of fabricating such a story as the four principal witnesses related. It was not difficult. The main part was doubtless true. Together they claim to have met the defendant but twice, and, if their story was true, they could have been corroborated as to the fact of both meetings by witnesses who would not have been impelled by their motives to commit perjury. I have referred to the Harlem meeting. They evidently thought it expedient to connect the defendant with the payment of the $1,000 to the “gunmen.” Bose testified that, after the murder, he telephoned the defendant, and it is claimed that there is some corroboration of that. It was a natural thing for him to do regardless of the defendant’s complicity in the crime. But he says that the defendant agreed to meet him at Webber’s place. He and Bose both testified that later, they disagree as to the hour, they were standing in front of Webber’s place at the comer of Forty-second street and Sixth avenue, talking with a man named Jack Sullivan or J. A. Beich, when the defendant arrived; that just then a man named Muttle or Brescher came along; that he and Sullivan walked away together and that the defendant then discussed the murder with them and the course to be pursued and requested Webber to give Bose $1,000 to pay the “gunmen.” I shall not discuss the likelihood that the defendant, if guilty, would hold a consultation with two of the murderers on the sidewalk on Forty-second street within two blocks of the scene of the murder two or three hours after its commission. Sullivan was called as a witness for. the defense and testified that he was with Bose and Webber at the time and place named and that the defendant did not come there. I shall not discuss the efforts or methods used to induce him to corroborate Bose and Webber. On

I now come to a matter which, regardless of all else, requires us to grant a new trial. It turned out that “ Moe Levy ” and “Itch,” the names of the chauffeurs given by Schepps, were nicknames for Harry N. Cohen and Isidor Schoenhaus, partners who had an automobile stand on Fourteenth street, and that one or the other had driven Bose, Vallon and Schepps almost daily since April, 1912. Each made affidavit on the motion for a new trial positively denying, that he drove the conspirators to the Harlem meeting or that any such transaction as Schepps testified to ever occurred. It further appeared that during the trial both were called to the district attorney’s office and questioned by an assistant.

It is urged in the brief that the testimony of those witnesses would have been incompetent as merely contradictory of Schepps on a collateral matter. Of course, if there was no Harlem meeting there could have been no chauffeurs at it, and, no doubt, Schepps, having, fallen into difficulty, got out the best he could by giving the names of friends who, he thought, would stand by him, guarding their identity by concealing their true names. But can any one doubt that a jury would be likely to disbelieve so improbable a story as that of the Harlem meeting, told by four murderers to escape the death penalty, if the only persons named by either of them as witnesses of the occurrence should testify that no such thing ever took place ? And will any fair man say that the defendant should be put to death unless another jury find him guilty after hearing the testimony of the men who, Schepps says, drove the conspirators to the meeting where the defendant’s crime was committed, if at all ? The evidence satisfies every requirement of the rule. (Code Criminal Procedure, section 465, subd. 7.) It was newly discovered, it was not cumulative, it was vital. In view of the course of the trial counsel should not be charged

In my opinion a new trial should be granted because the newly-discovered evidence imperatively demands it in the interest of justice, because the verdict is shockingly against the weight of evidence, and because the trial was so conducted as to insure a verdict of guilty regardless of the evidence.

(dissenting). It is not a mere figure of speech to say that I deeply regret my inability to concur in the opinion which is about to he adopted in this case. I am conscious that a single dissent, favoring the extreme penalty in a capital case, should be justified by cogent reason and a compelling sense of duty. In the case at bar I am constrained to dissent for reasons which I shall briefly set forth. There are two broad and far-reaching objections which 1 make to the prevailing opinion, and then I differ from my associates as to the effect of certain specific rulings of the trial justice which are said to be erroneous.

The prevailing opinion, it seems to me, forever disposes of the great issue of fact which it is the province of a jury to decide. Judges may differ as to the effect and weight of testimony, but it still remains the law that when an issue of fact is created in a case triable by jury the character of the witnesses and the weight of their testimony cannot he disposed of by this court even in a case involving the death penalty. • It matters not that we may go through the form of ordering a new trial when it is certain that this will be a useless ceremony.

The question on the merits in the case at bar is not what some of us may think of the result in view of the alleged errors which it is said were committed on the trial, but what we would he hound to do if the case were before us upon the same testimony and upon a record free from

The theory of the prosecution as to the defendant’s connection with the killing of Rosenthal is so simple and so generally understood that it seems like a work of supererogation even to refer to it. I shall do so very briefly because the prevailing opinion seems to proceed upon the theory that the only evidence tending to connect the defendant with the murder of Rosenthal is that given by his accomplices with reference to the so-called “ Harlem Conference,” which is said to have taken place at some time in the latter part of June, 1912. My reading of the record has convinced me that there are a number of antecedent circumstances and occurrences, some of which are testified to by witnesses who are not accomplices, that tend very strongly to support the theory of the prosecution that the defendant, although not physically present at the commission of the homicide, was in fact a participator therein. A few salient facts bear out this conten

The jury further had the right to find that Rosenthal had definitely concluded to get even with the defendant at any cost. That this was a matter of no small concern to the defendant is easily understood, and that he was greatly troubled by it is clearly indicated by the testimony. During the interval between the raid and the shooting Rosenthal had been trying to reach the authorities with his complaints against the defendant. It is said that he applied in turn to Police Commissioner Waldo, to Magistrate Corrigan, to Chief Magistrate McAdoo and to Mayor G-aynor, and that he threatened to go to the district attorney. It is an undisputed fact that he finally succeeded in getting a hearing in the office of the New York World, which resulted in the publication of his affidavit on Sunday, July 14, 1912' setting forth his alleged relations with the defendant. If Rose is to be believed, Rosenthal’s threat to go to the district attorney greatly troubled the defendant, and it requires no stretch of the imagination to understand that if this' was the true situation the defendant had a strong motive for preventing disclosures which were likely to ruin him utterly.

That the defendant and Rose were often together during the period between April and July 16th is amply proven by evidence outside of the declarations of Rose, and the jury had the right to find, as a fact, that Rose was in communication with Zelig, the leader of the so-called “ gunmen’s gang,” while the latter was imprisoned,in the Tombs during the month of May, 1912. During the interval between that time and the 20th of J une, acording to Rose, there were frequent interviews between him and the defendant, in which the subject of getting rid of Rosenthal was discussed, and in the course of which the defendant frequently urged the necessity of doing it as quickly as possible.

The shooting took place in the early morning of July 16, 1912. The manner in which Rosenthal was assassinated is known of all men and we need not dwell upon its awful details. For present purposes it suffices to say that we are about to decide, in another case, that the “gunmen” were guilty of that crime. Rose says he hired the “ gunmen.” Whatever else may be said of the complicity of these thugs in this affair, it was obviously not adventitious or emergent. All the circumstances indicate that "it was the result of a bargain with some one. With whom ? The prevailing opinion lays stress upon the contention for the defense that there is ground for the suspicion that the services of these “gunmen” were enlisted by the confraternity of gamblers who, to the number of several hundred, attended the outing of the “Sam Paul Association” on Sunday, July'14, 1912, and this suspicion seems to be founded upon the assumption that the Rosenthal disclosures in the World, which were the subject of general discussion on that outing, are

The prevailing opinion severely .criticises the trial justice for his conduct in refusing to grant the requests of defendant’s counsel for an adjournment of court pending the cross-examination of Rose. Some of these criticisms, so far as they bear upon the correctness of the rulings, may be justified. There are others which, according to my reading of the opinion, go so far as to impute to the trial justice certain motives or reasons for making the rulings. That I regard as wholly beyond our province. The direct examination of Rose had taken four hours, the cross-examination covered six hours, and the session of court had continued long beyond the usual time. We can all easily imagine that such an ordeal would be likely to tax the endurance even of a seasoned trial lawyer. We may admit that the court might better have postponed the examination to another day even though there may have been reason to believe that defendant’s counsel had fairly exhausted his right to cross-examination. We all agree that the right of cross-examination, sacred as it is, has its limits. How long it shall continue, and what its scope shall be, is usually a matter wholly within the sound discretion of the trial court. Since the right of cross-examination is a substantial one it must, of course, not be arbitrarily or capriciously interfered with; but I think it is quite within bounds to say that trial courts err much more in the direction of undue latitude in the allowance of cross-examinations than in curtailing them improperly. Be that as it may, it is always a question to be decided with reference, to the particular facts before the court. I venture to say that no judge reading the cross-examination of Rose could assert dogmatically that it might have been profitably extended. It covers 300 folios and seems to touch upon every point. Let us assume, however, that the trial justice erred. It appears

As I read the very able prevailing opinion it seems to emphasize the idea that the trial was characterized by a succession of rulings none of which considered alone would justify a reversal of this judgment, but which in their collective force created an atmosphere so inimical to the defendant’s legal rights as to entitle him to a new trial. It is quite true that the atmosphere of a trial room cannot be transplanted to the chambers of an appellate tribunal, and, therefore, we must rely upon the examination of the record to see whether the specific instances of alleged error, either singly or collectively, are of such importance and character that they must conclusively be presumed to have influenced the action of the jury adversely to the defendant. Without dwelling longer upon the general features of the trial I shall, therefore,address myself at once to some of these specific instances.

The first episode of the trial is characterized as “ an unfortunate scene which fairly foreshadowed the relationship of antagonism which was to prevail between the trial judge and defendant’s counsel.” The occasion for this animadversion was an application for a postponement of the trial on the ground of the illness of one of

Some of the district attorney’s statements in his opening to the jury are criticised as unfair and prejudicial to the defendant. That presents the vexed question which is now never absent from a capital case of any importance. It is one of those subjects with reference to which the courts can lay down no hard and fast rule. Even if it be conceded that some of the district attorney’s opening remarks went beyond the range of the evidence that was later ruled to be competent, the question still remains whether the defendant was harmed. The particular instance of which most is made is the one in which the defendant is referred to as a “grafter,” a collector of blackmail and protection money from illegitimate resorts. Whatever was said upon that subject was at first permitted to stand, but later the court ruled that the district attorney would be permitted to state “that Bose was connected with the defendant in business, and with the deceased person; ” and this was coupled with the admonition, “ do not characterize the business. When it comes to the introduction of testimony, that question can he considered.” Even upon the assumption that the state

Vallon, one of the conceded accomplices, was being cross-examined by the defendant’s counsel. He was interrogated about the agreement for immunity under which he was a witness for the prosecution. Defendant’s counsel demanded the production of the written paper. The district attorney refused to produce it unless the court should direct him to do so, and the court declined. I can find no legal error in this ruling. Doubtless the court might better have granted the request as a matter of courtesy, but that is not the question before us. What right had the defendant to the production of this paper, when the fact of the agreement was admitted % It was purely a collateral matter, not in controversy, and as to the effect of- which, upon the testimony of the witness, there could not be the slightest misunderstanding. It may be added that the writing was later produced, but that does not affect the merits of the ruling excluding it. Somewhat the same criticism is made upon the trial court’s ruling in refusing to direct that certain depositions, taken by commission in Hot Springs, Arkansas, • should be opened. These depositions related to the conduct and admissions of Schepps while he was at Hot Springs, after the shooting and before the trial. While Schepps was being cross-examined defendant’s counsel requested that the commissions be opened so that he might use them in framing questions. The court declined to give any such direction unless the commissions were read in evidence. I am inclined to think that this ruling was technically correct. Section 655 of the Code of Criminal Procedure prescribes that “ if the commission and return be transmitted by mail, the clerk to whom it is addressed, must open and file it in his office, where

Bose had made a written confession to the district attorney. The World published what purported to be a copy of it. The defendant’s counsel tried to use this copy in cross-examining Bose. Upon the objection of the district attorney the court refused to permit it. Defendant’s counsel then asked for the original, and the court declined to direct that it be produced. Several days later the court changed its ruling and allowed the production and use of the paper upon the condition that it should first be put in evidence. I do not understand that the correctness of the latter ruling is challenged, except on the score of being too late. Since we are not advised that anything which occurred between the first ruling and the second had rendered the document less useful to the defendant, it seems to me there was no legal error in this ruling.

It is urged that the trial court was guilty of an error of law in excluding testimony designed to show that Bose, Webber, Vallon and Schepps were inmates of the same prison under conditions which gave them an oppor

The general tenor of the charge is criticised, but no exception is discussed. It seems to be admitted that the trial justice “defined with accuracy many of the principles of law which governed the jury in their consideration of the evidence and in the disposition of the questions of fact,” but it is said that he “outlined in much detail and most effectively the claims of the prosecution and the evidence which had been produced to support those claims, leaving it to the jury, with few and meagre exceptions, to evolve from their own unaided memories the recollection of any arguments or evidence in behalf of defendant which tended to contradict such arguments and evidence of the prosecution.” It sometimes happens that such a presentation is due to the overwhelming preponderance of evidence and argument in favor of the prosecution, and when that is the case the defendant is not entitled to have the case presented as he would like it, but as it is. That rule is very clearly stated in People v,

Holding the views which I have thus briefly and imperfectly expressed, I vote for affirmance.

Chase, Collin, Cuddeback and Hogan, JJ., concur with Hiscock, J., and Miller, J., concurs in opinion; Werner, J., reads dissenting opinion.

Judgment and conviction, etc., reversed and new trial ordered.