People v. Seidenshner

Herman Rosenthal was shot and killed a few minutes before two o’clock on the morning of July 16, 1912, immediately after he had walked out from the restaurant of the Hotel Metropole upon the sidewalk on the north side of Forty-third street between Broadway and Sixth avenue in the city of Hew York.

On August 20, 1912, Charles Becker, the four defendants, Seidenshner, Oirofici, Rosenberg and Horowitz, and Jack Sullivan and William Shapiro were jointly indicted charged with murder in the first degree in that they had deliberately and with premediation effected the death of Rosenthal.

Rosenthal was a professional gambler and for some time prior to the homicide had been the proprietor of a gambling house on Forty-fifth street in said city. Three other men mentioned in the record, Jacob Rose, Louis Webber and Harry Velinsky (Yallon), were also profes

It is the theory of the prosecution that Becker was a partner of Bosenthal in the maintenance of the gambling house on Forty-fifth street and that Bose was his representative in such partnership. Becker was well acquainted with Bose, Webber and Bosenthal". Bosenthal’s gambling house on Forty-fifth street was raided by Becker and other members of his squad in April, 1912. Thereafter Bosenthal became angry at Becker and severely criticised him because of the raid and because of his alleged failure to protect him (Bosenthal) in the maintenance of the gambling house. He threatened to expose Becker’s alleged relations with him in the gambling business. It is further claimed by the prosecution that Becker’s fear of Bosenthal led him to desire that Bosenthal be murdered, and that he communicated his desire to Bose. It is further claimed that to protect Becker and also the so-called gambling fraternity Becker conspired with Bose, Webber and Vallon to employ men to murder Bosenthal, and that in pursuance of such conspiracy the defendants were employed to commit the murder.

Becker demanded a separate trial upon the indictment and he was the first to be. tried thereon. He was found guilty and judgment of death was entered against him. An appeal was taken from such judgment to this court,

It is conceded that Bose, Webber and Vallon, and, it is claimed, Schepps, are morally and legally guilty of the murder of Eosenthal. Prior to the indictment the district attorney, with the approval of the court, entered into separate written agreements with Eose, Webber, Vallon and Schepps, by which each consented to appear before the grand jury and fully and truthfully give his testimony concerning the murder of Eosenthal and the criminal liability of Charles Becker; and the district attorney upon his part agreed with each that he would not be prosecuted for said crime if it appeared that he did not fire any of the shots at the body of Eosenthal and that he should remain in prison until after Becker’s trial.

The principal part of the testimony in this case relates to the actual occurrences at or immediately preceding the homicide, and we will refer particularly to such testimony after first briefly stating the testimony by which the defendants seek to explain the admitted presence of three of them at the time of the homicide and by which the prosecution seeks to show the purpose of the defendants in actually committing the homicide.

One Zelig, a friend of the defendants and a man of great influence among those with whom he associated, was arrested on the 13th or 14th of May, 1912, charged, as a second offense, with carrying concealed weapons. He insisted that he was wholly innocent of the charge and that certain members of the police force had surreptitiously placed a pistol in his pocket and then arrested him on the charge as stated. He was held in default of $4,000 bail. Eose was informed that Zelig and his friends accused him of having instigated his (Zelig’s) arrest. The next day a conference was held between Eose, Webber, Vallon, Schepps and one Sam Paul, and the defendants Seidenshner and Bosenberg, at which conference Eose asserted his innocence of the charge made

On the night of July 15, Eose, Vallon and Schepps were at Sharkey’s saloon on Fourteenth street. They had an automobile but a tire had burst and they procured another, a gray car, of which Shapiro was the chauffeur, and the three men went in the car with Shapiro to 2529 Seventh avenue where they found Cirofici, and they returned with him to Webber’s poker rooms at Forty-second street and' Sixth avenue. The defendants Seidenshner, Eosenberg and Horowitz were waiting outside of Webber’s rooms and they, with the occupants of the car, but not including Shapiro, went into the rooms and had refreshments. The presence of the four defendants at Webber’s a short time before the homicide is admitted. It is asserted and not denied that Seidenshner, Eosenberg and Horowitz had been at a rendezvous on Second avenue which Horowitz admitted was a hangout place for thieves, gamblers and others, and that they had come from Second avenue to Webber’s rooms pursuant to a telephone communication received from Webber. We now come to the more direct testimony immediately preceding and at the time of the homicide.

Webber testified that he went out of his rooms and saw Eosenthal at the Hotel Metropole and then returned and reported to the defendants and that they then left the rooms. Eose, Webber, Vallon and Schepps testified that they remained at Webber’s rooms. Shapiro, the chauffeur, testified that he went to Sharkey’s saloon pursuant to a telephone message received by him at his stand at Second avenue and Tenth street. He further testified to the trip to 2529 Seventh avenue and back to Forty-second street and. Sixth avenue; that the four

One File, a policeman who was off duty at the time of the homicide, testified that he was in the Metropole restaurant and was attracted by four pistol shots. He ran to the street and saw two men getting into an auto about 200 feet away, diagonally across the street, but did not recognize them; that he obtained another auto and gave pursuit, but failed to apprehend them.

One Brady, a policeman on duty in the center of Times square, heard five pistol shots and ran to the place of the homicide and found Eosenthal there, dead, lying on his back.

One Hecht, a waiter at the Metropole, testified that he saw Eosenthal leaving the restaurant; that he heard a

One Krause, whose business is that of a waiter, was on the street and he testified that he saw a bunch of men standing around and he wanted to know what was going on. He further testified: “I saw four men shooting — shooting at the man who came out of the Metropole. The second man who came out of the Metropole. I saw two men come out; one man came out and gave a signal; put his finger there. [Indicating.] I saw four pistols; a pistol in the hands of each of these men. I saw these pistols pointed at Rosenthal.” The witness positively identified the defendants Seidenshner, Rosenberg and" Cirofici as three of the men who did the shooting. He says the fourth man had his back to him and he could not identify him. After the shots were fired they all ran back to the car and he saw the same four men get into it.

One Luban was in the Metropole when Rosenthal went out. He says Rosenthal went out of the door and returned and then went out of the door a second time; that he then heard four or five shots. He positively identifies the defendants Cirofici, Rosenberg and Horowitz as three of the persons who did the shooting,' but is not sure about Seidenshner. He says that they' had pistols in their hands and after the shooting they ran across the street and got into the car.

One Stanich testified that he was near the Cadillac Hotel, forty feet away from the place of the homicide; that he heard the first shot and turned around and saw the different persons; he thinks there were four who shot' with revolvers; that he saw Rosenthal fall to the ground. He identified the defendant Seidenshner as one of the men who did the shooting and further testified that he

Schepps testified that about 7:30 in the morning of the homicide he went to the Seventh avenue house and saw the defendants and they asked him where they were going to get the money; that he went back and saw Bose and then went the second time to the Seventh avenue house and saw Cirofici and Rosenberg and made an appointment with them to meet Rose at 2:30 in the afterrnoon at Fiftieth street and Eighth avenue; that pursuant to such appointment he went with Rose and met Cirofici and Rosenberg at Fiftieth street and Eighth avenue, and Rose gave Rosenberg a package which he understood contained $1,000, and that Rose said to him: “Lay low for a few days and above all not to talk.” Seidenshner, Rosenberg and Horowitz then left the city and Cirofici left the Seventh avenue house, although his rent' was paid for some days thereafter, and he went to live at another place in the city. It was some time after- the indictment before they were all taken into custody.

The defendants each took the stand and denied all ©on-r nection with the shooting and with any agreement to -murder Rosenthal. They all admit that they were at Webber’s rooms a short time before the homicide. Each of the defendants testified to a strange man being at Webber’s. They each testified that Rose said to them at Webber’s that they would meet certain policemen by whom he would prove that he (Rose) was innocent of a frame-up against Zelig. Horowitz testified that the strange man went out of Webber’s and came back again after which the defendants left Webber’s, and Cirofici went home. There is no explanation of Rose and-others procuring an automobile and going to" 2529 Seventh’

Seidenshner testified that the strange man with Webber, Eose, Vallon and Schepps went out of Webber’s rooms, and that in about fifteen minutes the stranger came back and said Eose wanted them to come around to the Metropole- and that they all went, but when they got put on the sidewalk he noticed that the gray car in which Cirofici came was not standing there; that Cirofici went home and that he and the others went around by the Cadillac Hotel; that the stranger went across the street to Eose, Webber, Vallon and Schepps, and after talking two or three minutes they went on to the Metro-pole in the order stated by Horowitz; that the stranger fired and Vallon and Webber were shooting; that he thought they were shooting at him and his friends and that they ran to the subway.

Eosenberg’s testimony is to the same effect, and Cirofici’s testimony of what occurred up to the time that he claims that he left the others, is in corroboration of the testimony of Seidenshner, Eosenberg and Horowitz. Considerable testimony was offered for the purpose of affecting the credibility of the witnesses for the prosecution and for the defendants respectively, but such testimony simply bears generally upon the weight of the

Counsel for the defendants in their brief have quoted very frequently and at considerable length from testimony given in the Becker case, not in this record, for the purpose of comparing the testimony given by witnesses on such trial with the testimony given by the same witnesses on this trial, and seek by showing differences or inconsistencies therein to affect the weight to be given in this case to the testimony of such witnesses. This appeal brings up for review the record in this case, in which the rulings of the trial court upon the receipt or exclusion of testimony, and the charges of the court to the jury, and the refusals to charge were made, and upon the testimony in which record the determination of the jury was based. It is conceded that the attorney for the defendants had a copy of the record in the Becker case in

The witnesses called by the prosecution have been severely criticised for their depravity. It is quite true that most of the witnesses called by the prosecution and by the defense are of the criminal and depraved class. In the very nature of things horrible events such as the one narrated in this record are not witnessed, except it be by mere chance, by people of savory history and clean, moral lives. This record shows that an awful crime was committed in defiance of law and honor for some specific .purpose and pursuant to a deliberate plan. The crime was neither an accident nor the result of heated passion. To determine who were the persons guilty of the crime there was no choice of witnesses. It was necessary to take the testimony of such persons as saw the occurrence and of those who had knowledge of facts leading up to the homicide. Notwithstanding’ the testimony was somewhat unsatisfactory, and in some particulars contradictory, the conclusion had to be reached by determining the credibility, of the witnesses produced, and as to which

This court in People v. Taylor ( 138 N. Y. 398 , 406) say: “Under our system of criminal jurisprudence, it becomes the exclusive province of the jury to determine whether .the evidence pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment. When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law which protects him from punishment, unless his crime is established beyond a reasonable doubt, and the question is not open for review in this court, unless the case is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause.” (See People v. Katz, 154 App. Div. 44 -47; affd., 209 N. Y. 311 ; People v. Egnor, 175 N. Y. 419 -425; People v. Rodawald, 177 N. Y. 408 -419; People v. Decker, 157 N. Y. 186 -195.)

In People v. Ferraro ( 161 N. Y. 365 , 377) this court, referring to a determination of a question of fact, say: “It would be hazardous for seven judges of the law * * * to say that the twelve judges of the fact were wrong * * *. It is impossible for us to say, and the nearest approach to justice that can be made is to leave such questions to the jury.”

In People .v. Sanducci ( 195 N. Y. 361 , 367) this court say: “The credibility of witnesses is necessarily for the twelve jurors who looked into their faces and heard them testify rather than for the seven judges who simply read the printed record of what they said.”

Counsel for the defendants allege that error was committed in allowing testimony of conversations between Eose, Webber and Vallon, or some two of them, or conversations between one of them and Becker, without the presence of defendants. The evidence of a conspiracy between Eose, Webber and Vallon and the four defendants to murder Eosenthal was such as to admit the testimony of either relating thereto. There is some testimony in the record to show that Becker conspired with the others named to bring about the death of Eosenthal, and testimony of conversations between Becker and any one of the other conspirators was properly received in evidence. In any event the admission of conversations between Becker and either Eose, Webber or Vallon in the absence of the defendants, was not error, because all of the material testimony relating to such conversations was substantially repeated to the defendants or some one of them, and they as conspirators with Becker, Eose and others, or with Eose and others, acted upon the reported conversations with Becker assuming that they were had, and that the conversations with him were truthfully reported.

The question as to whether Schepps was or was not a co-conspirator is not of the same importance in this case as it was in the Becker case, and the determination of the question as to whether he wras a co-conspirator as a matter of law, or whether he was a co-conspirator as a matter of fact, is not of sufficient importance for further discussion.

Seidenshner, as a witness, testified that he had used the name of Frank Muller, Siden, Miller and G-oldberg; that he had not used the name of Whitey Jack, but had been called Whitey Jack, -Jack White, and had been known as Whitey, but not as Whitey Lewis. He also testified that after the homicide he saw his picture and the name Whitey Lewis in the newspapers and knew that it referred to him. He further testified that he did not use his family name “because I would not disgrace my name — because I was a thief and everything.” Frank Cirofici testified to using the names Harris, Gordon, etc. Louis Rosenberg testified that he had used the names Charles Raymond, Lewis Baker and Lewis Marks, and that he had not used his own name because he did not want to disgrace his family.

The four defendants are professional lawbreakers and

In People v. Everhardt ( 104 N. Y. 591 , 596) the defendant was described in the indictment as “ George Hartman, otherwise called George Peters, otherwise, called Mash Market Jake, otherwise called Charles Coke, otherwise called Charles McGloin. Upon the trial, these names were repeated by the clerk in the oath administered to the jurors challenged, and the counsel for the defendant objected to the repetition of such names on the ground that it tended to prejudice the defendant in the minds of the jurors; and he admitted and offered to prove that the true name of the defendant was Charles Everhardt. The trial judge stated in reply that he could see no objection to the clerk inserting in the subsequent proceedings the name which the defendant asserted was his true name, and referring to the fact that he was indicted under another name.” An exception was taken. Counsel “asked the court to instruct the clerk, in swearing the jurors and the witnesses that he should designate the defendant as Charles J. Everhardt, and omit the fictitious names. The court replied that he would instruct the clerk to designate the defendant as Charles J. Everhardt, and would allow him to state the several other names,” and it was thereafter done during the trial. An excep

Counsel for the defendants urge that their clients were prejudiced because they were referred to by the district attorney as “gunmen.” When the word was first -used in the opening the attorney for the defendants objected to its use, and the counsel, speaking in behalf of the district attorney, said: “I will refrain from it.” He did refrain from any prejudicial use of it, and the court was not at any time requested to make a ruling upon or statement to the jury in regard to the use that was made of such word.

Rosenberg testified on cross-examination, without objection, that five or six months before he received two revolvers from a drunken man, who said he had purchased them for seventy-five cents; that he told the man that he would get pinched if he went out with them, and that he took them from the man and put them in the bottom of his trunk. This occurred at 2529 Seventh avenue, and Rosenberg testified that he sent the trunk away after the homicide, and that the revolvers were nót fired

We do not see how the defendants could have been prejudiced by anything that occurred relating to the revolvers or in connection with the revolver expert as a witness.

When Shapiro was cross-examined by the defendants’ counsel he gave testimony as follows: “ I know Mr. Marshall, the attorney for Sullivan. I did not say to Mr. Marshall anything about the occupants of this car. I never said anything to him; he asked me who I had in the car that night and if I knew the men and I said

Marshall was subsequently called as a witness by the defendants and he was asked about a conversation with Shapiro which took place about a week before the termination of the Becker trial. The district attorney said ' that he would object to any question relating to the conversation for the reason that Shapiro’s attention was not called to such conversation. The record of what then occurred is as follows:

“ Q. Did Shapiro state to you at that time who the occupants of the car were? [Objected to; sustained; exception.]

“Mr. Wahle: I drew the attention of Shapiro to that.

“ The Court: That precise question ?

“ Mr. Wahle: That is the thing I am referring to.

“By Mr. Wahle:

“ Q. Did he state to you that among the occupants of the car were Schepps and Vallon ? [Objected to.]

“The Court: Was that direct question asked Shapiro ?

“Mr. Wahle: Yes. I do not know the page. I know what I asked about.

“The Court: I will take your word for it, and overrule the objection.

“ The witness: May I have the question read ?

“ The question is repeated by the stenographer as follows: (Did Shapiro state to you at that time who the occupants of the car were ? ’

“A. He did.

“ Q. Did he state the occasion upon which Schepps and Vallon were the occupants of the car. [Same objection; sustained; exception. No cross-examination.]

“Mr. Wahle: One moment.

“The Court: No; nothing further. ,

“Mr. Wahle: I take an exception.”

The testimony of Marshall was only admissible to contradict Shapiro. To make the testimony admissible for the defendants Shapiro’s attention should have been called directly to the question upon which the defendants’ counsel proposed to contradict him. Shapiro was never asked the direct question that was asked of Marshall. In fact there is grave doubt whether the testimony of Shapiro, that we have quoted, has any reference at all to the occupants of the car when it went from Forty-second street and Sixth avenue to the scene of the homicide or on the trip immediately following the homicide.

The defendants’ right to have Marshall answer the question, the answer to which was excluded, was not sufficiently clear for the reasons stated on which to base the defendants’ claim of reversible error.

We have examined every ruling adverse to the defendants upon the receipt or exclusion of evidence, and also particularly such parts of the record as show according to the defendants that the court was prejudiced against them and manifested such prejudice to .their injury, but w*. do not think that unfairness or reversible error were shown.

We have also examined with care the opening address by the assistant - district attorney and the address to the jury by counsel for the defendants and the prosecution, respectively, and notwithstanding the criticism of counsel for the defendants we do not think that it is necessary to quote therefrom or comment thereon in detail. We do not think that the assistant district attorney violated the hounds of propriety or legal right either in the opening address or in his presentation of the case to the jury. The testimony was complicated and it was the duty of counsel for the prosecution, as well as for the defendants, to discuss the same from their respective standpoints, and in doing so unless statements were made that could

Counsel has called attention to inferences drawn from the testimony by the assistant district attorney that are directly opposite to the alleged necessary inferences drawn from the same facts by counsel for the defendants. It is clear. that counsel for the defendants did not at the time consider that injustice was being done to his clients by the assistant district attorney; neither did he at the time think that the court had acted in a'prejudicial manner towards them. In his final address to the jury, referring to the defendants, he said: “ Por the first time in their lives they have been in a court room where a district attorney has on cross-examination spoken to them in considerate tones and not bully-ragged them or bulldozed them. Probably for the first timé in their lives they have been before a jury who have listened to their story and hot treated them with contempt, and I venture the statement that probably for the first time in their lives they have been before a judge who has spoken kindly and gently1 to them and treated them kindly and gently and has not treated them as if they were the outcasts of the world/ That is something new in'their lives.”

At the close of the address of the assistant district attorney,- counsel for"the defendants said: “If your honor please, there -are a number of statements in the summing up of counsel, particularly some in the peroration to - which under ordinary circumstances I should like to take an exception, but I feel that I can safely conservé these defendants’ rights if your honor will permit me to send to you three additional requests to charge that I think will cover the situation. May I have that permission ? ” The court granted the permission and adjourned court until the following morning when the charge of the court to the jury was delivered.

Counsel for the defendants had previously submitted sixty-eight requests to charge, many of which were fully covered by the court in the main charge, and he was permitted to submit nine further requests to charge. The first of the nine additional requests to charge was as follows: “ The jury in this case are not concerned with the result of the trial of any other person mentioned in this indictment. These defendants may he innocent of the crime charged against them and yet others mentioned in this indictment be guilty; and the fact that the jury may know the result of the trial of Charles Becker, co-defendant herein, must in no way affect them in the determination of the questions in this case, as the innocence or guilt of these defendants is to be determined only by the evidence here presented.”

To this request the court said: “ I refuse to charge that request in the language presented, but will charge it in part, that the innocence or guilt of the defendants must be determined solely upon the evidence before the jury irrespective of any knowledge the jurors may have of the result of the trial of Charles Becker.”

The third request was as follows: “The case is not to be determined upon the opening addresses of the district attorney or counsel for the defendants. It is the evidence in the case which is to receive the attention of the jury.”

The court: “ I charge that, hut I add to that, that the

The fourth request was as follows: “ The jury will disregard all references to the character or fate of one Jack Zelig; he is not a party to this indictment and is not concerned with the issues in this case, excepting so far as he is involved in the interviews that were had by Jack Bose with these defendants and the relation of the defendants with said Jack Zelig.”

The court in response to the fourth request said: “I decline to charge in the language presented, as it is incomplete or misleading, but I will charge part of the request, namely, that the jury must not take into consideration the fate of Jack Zelig.”

The court ruled upon the other written requests submitted to him and an exception was taken to those not charged. The counsel for defendants referring to the statements made by the court in the main charge said: “I ask your honor to charge the jury so far as the skeleton of the evidence of the prosecution and defense is concerned if the recollection of the jury as to the evidence differs from that which your honor has embodied in the skeleton then the recollection of the jury must control and not your honor’s recollection.”

To this request the court replied: “I so charge and I say in general that if at any time during my charge I have inadvertently fallen into any error or mistake, touching the evidence or the testimony of any witness, it is your recollection, gentlemen, that must control and not mine.” We do not find any error of law that requires a reversal of the judgment against the defendants, or either of them, nor do we find any unfairness toward the defendants that makes a new trial necessary in the interest of justice. The judgment of conviction should he affirmed.

(concurring). I concur in the opinion of my brother Chase for the affirmance of this judgment,

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

Judgment of conviction affirmed.