People v. Nitzberg

The defendant stands convicted of murder in. the first degree. One Shuman was the victim of the homicide. On January 10, 1939, his slain body was found in an automobile that was parked on a street in Brooklyn.

(1) Abraham Reles — a self-confessed accomplice in the crime — was the chief witness for the People. Put into direct discourse his story in substance was this: My business was murder in Brooklyn. Lepke was one of my bosses. In December, 1938, Mendy Weiss and I visited Lepke at his hideout apartment where Mendy “ told Lep that Pug

Reles having given this testimony, the prosecution in its direct case brought Dorothy Walker, Philip J. Bang, Herman Breitman, Michael F. McDermott, Bernard Moskowitz and Bernard Freundlich to the witness stand. Walker ■ — the housekeeper for Lepke at his so-called hideout apartment — testified that Reles and others (of whom the defendant was not one) had visited Lepke there in the latter part of 1938. Bang testified that, as a member of the police department assigned to traffic patrol on Eastern parkway throughout December, 1938, he had during that month spent some time at the corner of Eastern parkway and Buffalo avenue, because accidents frequently happened at that spot. McDermott is the police inspector to whom Reles referred in his testimony. McDermott’s evidence was that from time to time in December, 1938, he had had conversations with Shuman at police headquarters in Brooklyn and at the office of the District Attorney of the county of New York. Breitman was the owner of the automobile in which Shuman’s body was found. He testified that the vehicle had been stolen from a garage in Long Island City in September, 1938. Moskowitz was the keeper of that garage. He gave similar testimony. Freundlich testified that the license plates that were on the car in which Shu

For convenience we shall here and there refer to Walker, Bang, McDermott, Breitman, Moskowitz and Freundlich as the non-accomplice witnesses.

After the trial judge had delivered his charge to the jury he was requested by counsel for the defendant to instruct them that the facts sworn to by the non-accomplice witnesses were “ insufficient evidence to corroborate the accomplice.” The judge responded: “ That is right, and I so charge, that those facts which you have just stated are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness as to whether or not he is telling the truth as to credibility.” Counsel for the defendant thereupon made this protest: “ I say that that evidence cannot tend to connect the defendant with the commission of the crime.” Again the judge rejoined: “ I so charge, but it does tend to show, or prove or disprove the credibility of a witness.” To these rulings, and to the refusal of the trial judge to strike out the testimony of some of the non-accomplice witnesses, counsel for the defendant took exceptions which are now pressed upon us.

Each and every of the matters sworn to by the non-accomplice witnesses was undisputed by the defendant. Not a single item of the testimony of any of them had any applicability whatsoever to his identity as a participator in this crime. So, indeed, the trial judge ruled. In that state of the case the question is whether we can sustain the further ruling that such independent testimony was none the less to be used by the jury in constructing for the accomplice witness Beles a general credibility that would perhaps amount to a sanction for his narration of the vital and controverted particulars of his story against the defendant.

Was the fact that Walker (in the defendant’s absence) saw Beles in Lepke’s apartment relevant to show that Beles was truthful in his testimony that he and the defendant

“ There is a principle '1 — not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence * * * — which forbids receiving anything irrelevant, not logically probative.” (Thayer, Preliminary Treatise on Evidence, pp. 264, 265.) “ It is not the law which furnishes the test of relevancy, but logic. Probative value, or capability of supporting an inference, is a matter of reasoning * * * and the rules of relevancy aim only to determine whether a given fact is of sufficient probative value to be admissible at all.” (1 Greenleaf on The Law of Evidence [Wigmore’s 16th ed.], § 14.) For the purposes of the present case it is enough in the way of a definition of relevancy to say that a fact is relevant to another fact when the existence of the one renders the existence of the other highly probable, according to the common course of events. (See Sir James Stephen, Digest of the Law of Evidence [Chase’s 2d ed.], Introduction xvni. Cf. Platner v. Platner, 78 N. Y. 90 , 94.)

The fact sworn to by Walker — the presence of Beles in the Lepke apartment — was a criminal fact. On the say-so of Beles that fact initiated the killing of Shuman. The fact sworn to by Breitman, Moskowitz and Freundlich— the theft of the vehicle in which Shuman’s body was found — was on the face of it a criminal fact. On his own say-so,

We think it unnecessary to probe this idea that a strong implication of the non-credibility of a witness may be rebutted by independent evidence which confirms him in his confession of the very criminality which gives rise to that implication. Whatever its merits, such a process, we believe, is not fit for the trial of issues on which fife and liberty depend. To our minds it appears safe enough to say at once that the testimony of Walker, Breitman, Moskowitz and Freundfich did not indicate with any fair degree of probability that Heles might here be taken in the fight of common experience to have been over all a truthful witness. We do not mean, however, that their testimony was not receivable as evidence of a part of the principal occurrence in issue. (Cf. People v. Sherman, 103 N. Y. 513 .)

The testimony of Officer Bang has a somewhat different aspect. The location of his post of duty was a fact that had no necessary connection with Heles. Indeed, it was a fact that was known to everybody. But if an accomplice-witness could be supported at large by independent evidence that he told the truth in matters of that sort, then every accomplice (not incompetent for want of understanding) could always rake into his story materials for such confirmation of it. (See Commonwealth v. Bosworth, 22 Pick. [Mass.] 397, 399.) It has been a long time since an accomplice witness has been suffered so to lift himself by his own

So with the testimony of Inspector McDermott that Shuman (the victim of this crime) had been in communication with him. We will make the good-sized assumption that this testimony was well enough as evidence that Beles had reported the same fact to Lepke. This report of Beles (as he said) had been made in a secret conference among him, Lepke and Weiss when they were privately assembled for the sake of their common protection from interference by the police. To us it seems that the results of ordinary human experience do not countenance the notion that the testimony of Inspector McDermott was proximately probative of the fact that the truth was in Beles once more when (after his arrest and with the promise that the District Attorney “ would speak to the court for me ”) he testified that the major part in the commission of this crime had been taken over by this defendant.

In a word, all the testimony of the non-accomplice witnesses was, in our judgment, inadmissible as evidence of the credibility of the accomplice witness Beles, because it was of merely slight, remote or conjectural significance in respect of that issue — to say nothing for the moment of the fact that such a use of that testimony inevitably tended unnecessarily to confuse the real issues and unfairly to surprise the defendant to his prejudice. (See People v. Harris, 209 N. Y. 70 .) !

Perhaps it should be added at this point that there was in this case no question of restoring the credit of Beles after his impeachment as a witness. The facts that discredited him came out on his direct examination and, as we have noticed, the non-accomplice witnesses were called by the prosecution in its direct case. (See People v. Edwards, 282 N. Y. 413 .)

In his dissenting opinion, Judge Lewis brings in People v. Reddy ( 261 N. Y. 479 ). The Reddy case recognized the obvious possibility that transactions which occur on the scene of a crime at the time of its commission may sometimes be at least theoretically relevant to the credibility of an accomplice witness; though the actual decision made by the Reddy case on that point was that the argumentation there made on that basis led to no more than a mere con

Linsday v. People ( 63 N. Y. 143 ), it will be observed, is a case that was decided at a day when the law of this state was that a conviction could be had on the sole credit of an accomplice. (See People v. Mahew, 150 N. Y. 346 , 353.)

The Linsday case (p. 158) gave us a quotation from the celebrated essay on the Evidence of Accomplices written in 1844 by Chief Baron Joy, whose view — that it does not matter how an accomplice witness is shown to be trustworthy— has the indorsement of Mr. Wigmore. Still, as Mr. Wigmore says: “ In England, this view obtained at first, that no specific corroboration need be furnished as to the accused’s identity. But the opposite opinion began to be taken at Nisi Prius some twenty years later, and finally prevailed. In the United States, * * * when by statute the cautionary practice [to warn the jury not to respect an accomplice’s uncorroborated story] was in many juridictions created into a rule of law, this definition of the scope of corroborative evidence was expressly retained.” (7 Wig-more on Evidence [3d ed.], § 2059. See the cases in this court there cited.) The rule of law so referred to is this: “ In a criminal charge, an accomplice’s testimony alone, uncorroborated by other evidence, is not sufficient. The corroborative evidence must apply to the accused’s identity as a participator.” (Wigmore’s Code of Evidence, §§ 1973, 1974.)

(3) Our statute adopted that rule of law in these words: “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” (Code Crim. Proc. § 399.) Accordingly, it has long been the settled law of this state that the-corroborative evidence so required must be evidence from

We have no power so to reopen the way to the very danger to a fair trial against which the Legislature enacted the statute. Nor have we the wish to make the conception here pronounced by the trial judge a basis on which any citizen of the state, however innocent, could be tried for his life or liberty. (See People v. Walker, 198 N. Y. 329 , 335.) Nor do we believe that conception to be any the more acceptable because as one of its consequences a guilty accused would be entitled to confirm an interested witness for his defense by dint of the same rambling and outside process that was here resorted to in the endeavor to under-prop the intrinsically dubious oath of Beles.

The foregoing considerations cannot be disposed of simply by saying that a trial judge may limit the scope of theoretically relevant evidence of credibility not amounting to corroboration. “ There is no rule and no principle which forbids delay, tediousness, and complication, pure and simple, and always; what is forbidden is unnecessary complication, delay and tediousness * * *. When the nature of the issue requires it, enormous dangers of this sort have to be run.” (Thayer, Preliminary Treatise on Evidence, 517, 518.) If, then, in a case like this, remote evidence of credibility not amounting to corroboration were deemed to be necessarily admissible, we would find it not a little

Correspondingly, however, the more the volume of such evidence the greater would be the undue prejudice to the defendant, who would hardly be able to anticipate what matters having no connection with him he would so be called upon to meet. See how in the present case Walker’s evidence by its very nature tended to deprive the defendant of any actual chance to disprove it. Her testimony — that in the defendant’s absence Heles was with Lepke at the so-called hideout apartment- — -presumably could have been denied by no one but Lepke or their confederate Weiss, the only others there at the time. Notice, too, that the primary fact sought to be evidenced by the testimony of Officer Bang was a change in the mind of Heles himself. Taken as evidence of his general credibility, the testimony of Walker and Bang was freighted with unfair surprise. We reject the supposition that the prosecution’s burden of proof should have thus been artificially leavened merely because the evidence against the defendant came from sources that were polluted.

On the whole, without further detail, and without deciding that an accomplice witness may not be confirmed by evidence of, his probable credibility not amounting to corroboration, our conclusion is that the foregoing ruling of the trial judge cannot be sustained.

(4) We come now to an often burdensome question. May the error be regarded as technical and insufficient to require a reversal? (See People v. Marendi, 213 N. Y. 600 , 618, 620.) This defendant took the stand. His guilt is far from being clearly exhibited by the record. Of the three witnesses for the People who gave evidence sufficient to satisfy the statutory requirement of corroboration' of Heles two had been prisoners in a jail where the defendant had been confined. Their testimony was that the defendant admitted his guilt to them or in their hearing to persons who visited him there. The third of these witnesses was a thrice-convicted criminal,

The judgment of conviction should be reversed and a new trial ordered.

(dissenting). I dissent from the decision about to be made which rests upon the conclusion that the defendant’s rights were prejudiced by the admission of evidence adduced from certain non-accomplice witnesses and received in support of the credibility of three accomplices.

No one doubts the wisdom of the statute (Code Crim. Proc. § 389) which casts upon the prosecution in a criminal trial the burden of proving the guilt of an accused beyond a reasonable doubt. We know, however, that burden to be immeasurably increased when, as in the present case, the state’s proof of the defendant’s guilt comes from the lips of accomplices who blatantly admit before a jury their complicity in organized crime. Truth does not come naturally from sources so polluted. Credence may, however, be induced by corroborating facts.

In this case the question upon which the court divides is whether, in his effort to dispel reasonable doubt as to the defendant’s guilt, the District Attorney was rightly permitted to support the credibility of three accomplices by evidence from certain non-accomplice witnesses. Their testimony is now challenged because, it is said, it was of slight, remote or conjectural significance in respect of the general credibility of the accomplices; that it had an inherent and inevitable tendency unnecessarily to complicate the case and unfairly to surprise the defendant. In my opinion the challenge is without merit in any of the particulars mentioned.

The point in controversy requires a statement of only those portions of the evidence which relate themselves to the challenged testimony of the non-accomplice witnesses.

Among witnesses called by the prosecution were three accomplices — Abraham Reles, Albert Tannenbaum and Seymour Magoon. It is a mild statement of facts made clear by the record to say that Reles is a hardened criminal and that the records of Tannenbaum and Magoon in crime had not escaped reproach by the law. In other words, their admissions of participation in prior crimes was a warning to the jury that caution should be used in valuing their testimony. (People v. Cohen, 223 N. Y. 406 , 422.) It is from testimony by these three accomplices that the District Attorney brought out the sordid details of a carefully laid plan which had for its sole object the death of Albert Shuman.

It should be said at this point that upon this appeal the defendant does not assert a failure by the prosecution to corroborate the three accomplices Reles, Tannenbaum and Magoon, by other independent evidence required by section 399 of the Code of Criminal Procedure — evidence which “ tends to connect the defendant with the commission of the crime.” The defendant does contend, however, and this court is about to hold that the trial court erroneously permitted facts prejudicial to his rights to be brought into the record by the testimony of non-accomplice witnesses

From testimony adduced by the District Attorney from the three accomplices it appears that some time in the late months of 1938 the decedent Shuman had been seen coming from police headquarters in Brooklyn where, it was said, he had been giving information to Inspector McDermott concerning Louie Lepke Buchalter, allegedly a notorious underworld character, commonly known as “ Lepke,” who was then “ hiding out ” in an apartment on Foster avenue in Brooklyn. When Heles learned that Shuman had conferred with Inspector McDermott he visited Lepke at the latter’s1 apartment and told him of that fact. On that occasion and on subsequent visits by Reles to Lepke’s “ hide-out ” there was pres» fit in the apartment the People’s witness Dorothy Walker, When Lepke was told of Shuman’s conduct he said to Reles: “ If he [Shuman] is giving information against me, go out and take him.” Thereupon a plan to kill Shuman quickly took form. It involved A ruse in which defendant Nitzberg was assigned an important role and by means of which the victim was to be lured into the entrance hallway of an apartment house on Lincoln Place between Rochester and Buffalo avenues in the borough of Brooklyn, where he would be shot. That plan was changed, however, when Reles reported to his fellow conspirators that “ The spot which we picked out is no good, because right around the comer there is a motor-cycle cop at all times, and after they kill Shuman in the hallway they are liable to walk right into the cop’s arms.” This suggestion caused the abandonment of the original choice of the place where the planned murder would be committed and the adoption of a new proposal by Reles that Shuman should be lured into an automobile in which he would be driven through Buffalo avenue, Eastern parkway and Rockaway avenue to a point .beyond Bethel Hospital

The plan thus changed was carried through with smooth precision on the night of January 9, 1939. Upon the pretext that they were taking him to an apartment where he was to participate with them in a robbery, the defendant and another enticed Shuman into a black Buick sedan which, according to testimony by Heles and Magoon, was a stolen car previously secured by them and turned over to the defendant to be used in carrying out the plan. The victim met his death while he was seated on the front seat of the black sedan to the right of Tannenbaum who had been assigned to drive the car. The shooting had been assigned to, and was carried out by the defendant Nitzberg, who was seated alone in the rear of the car behind his victim’s back.

From this abbreviated recital of testimony given to the jury by the three accomplices I pass to a consideration of testimony by the non-accomplice witnesses. Police Inspector McDermott, who, according to the accomplice Heles, was visited by Shuman in the late months of 1938, testified that in the fall of 1938, while he was in command of the detective force in the borough of Brooklyn, Shuman carpe to his office on three occasions. Dorothy Walker, who, according to Heles, was present in the Lepke “ hide-out ” when he called there and advised Lepke that Shuman had been calling upon Inspector McDermott, testified that she was present in the Lepke apartment on that occasion and on later days when Heles called. Police, Officers Reardon and Eifler testified that in the early morning of January 10, 1939, they discovered, on East Ninety-fifth street in Brooklyn, the body of Albert Shuman in a black Buick sedan bearing New York license number 9K 1131. They described in detail the car, the position of the body, the wounds and powder marks. Moskovoits, the keeper of the public garage in which had been stored by the state’s witness Breitman the black Buick sedan in which the body of the deceased was found, testified that the car was stolen

I find nothing in the testimony of these non-accomplice witnesses which prejudiced the rights of the defendant. Although the testimony had reference to minor details in the succession of events related by Reles and the other two accomplices, it served in each instance to confirm and .give credence to their narrative the source of which, when uncorroborated, did not inspire belief in its truthfulness. (2 Bishop, New Criminal Procedure [2d ed.], p. 998; 7 Wig-more on Evidence [3d ed.], § 2059.) The material matters upon which the credibility of an accomplice may be supported are not “ as to the place of his birth, his age, his residence, but the detail of the crime and matters connected with it.” (Emphasis supplied.) (Linsday v. People, 63 N. Y. 143 , 158.) Of the testimony by the non-accomplice witnesses it may be said here as this court ruled in People v. Reddy ( 261 N. Y. 479 , at p. 486), “All that it does and all that can be claimed for it, is to give support to some of the facts — and those not the most essential — testified to by [the accomplice] * * * on the basis of which the truth of [the accomplice’s] accusation against the defendant might be conjectured.

From earliest times there has been a natural distrust of the testimony of an accomplice. Prior to the enactment of section 399 of the Code of Criminal Procedure (L. 1881, ch, 442, as amd. L. 1882, ch. 360) a conviction could be had upon the uncorroborated testimony of an accomplice alone. (People v. Everhardt, 104 N. Y. 591 , 594; People v. Mayhew, 150 N. Y. 346 , 353.) But the trial court, as a rule of practice and not of law, was accustomed to warn the jury that a' conviction on uncorroborated testimony of the accomplice would not be justified. (People v. Dixon, 231 N. Y. 111 , 116, and see 7 Wigmore on Evidence [3d ed.], § 2056.) The kind of evidence held to be sufficient as corroboration was merely such evidence as tended to establish the credibility of the accomplice on some material point in his narrative. (Linsday v. People, supra, pp. 157-159.)

The enactment of section 399 of the Code of Criminal Procedure established no exclusive test for the admissibility of corroborative evidence. Such evidence as was formerly admissible might still be received, but it was no longer sufficient. (Cf. People v. Goldstein, 285 N. Y. 376 , 382.) Under the new section there may be no conviction upon the testimony of the accomplice, corroborated merely for the purpose of proving credibility, in the absence of corroborative independent evidence tending to connect the defendant with the commission of the crime. In effect we are now asked by the appellant to rule that the enactment of section 399 of the Code of Criminal Procedure

To say, as do a majority of the court, that the testimony given by the non-accomplice witnesses was “ of merely slight, remote or conjectural significance ” in respect of the general credibility of the accomplices, is not, as I view it, a correct appraisal of its value. More appropriate, I think, is the statement by Chief Baron Joy in his Evidence of Accomplices, “ The correct and accurate manner in which an accomplice details the circumstances of the transactions shows that he was cool and collected, that he possessed observation, that his recollection is fresh, and that he was an observer, not an inventor of facts and incidents; and if we find that in every point in which the evidence of other witnesses can be brought into contact with his, they fit into one another and correspond exactly, it is good ground for presuming that his entire narrative is correct.” (The Law Library [Wharton], 3d Series, vol. 45, appendix, p. 10.)

Nor does the testimony of the non-accomplice witnesses “ inevitably ” tend “ unnecessarily to confuse the real issues and unfairly to surprise the defendant to his prejudice.” I find nothing in the record of the trial — which lasted ten days, during which sixteen witnesses were called by the defendant ■ — which gives the slightest indication that at any time the defendant was prejudiced by surprise; nor is there any indication of confusion as to the real issues. There were no errors of major importance and none which adversely affected the substantial rights of the defendant. The defendant stands convicted of one of the most atrocious crimes ever planned and consummated by organized crime in this state. In my opinion the decision about to be made — which casts aside the jury’s finding of the defendant’s guilt, upon the ground that his rights were prejudiced

Lehman, Ch. J., Rippey and Desmond, JJ., concur with Lotjghran, J.; Lewis, J., dissents in opinion in which Finch and Conway, JJ., concur.

Judgment of conviction reversed, etc. (See 287 N. Y. 754 .)