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 be 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 be 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 be bound to do if the case were before us upon the same testimony and upon a record free from *Page 329 substantial error. Upon that question I think I hazard nothing in saying that there was clearly an issue of fact for the jury. It is true that the main witnesses for the prosecution were gamblers, criminals, degenerates and murderers, as they are denominated in the prevailing opinion, but that goes to their credibility and the weight of their evidence. It does not authorize this court to invade the province of the jury, nor to decide in advance what must be done upon another trial upon a similar state of facts. Section 528 of the Code of Criminal Procedure confers no such power on this court. In speaking of that section we have said that "in determining whether a new trial shall be granted under it, it is not the province of this court to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such a case, and that with its decision the court may not interfere unless it reaches the conclusion that justice has not been done." (People v. Decker, 157 N.Y. 186,195; People v. Krist, 168 N.Y. 19; People v. Gaimari,176 N.Y. 84.)
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 contention. *Page 330 The defendant was a police officer, whose peculiar duties brought him in close touch with the denizens of the underworld of New York. That he was on terms of intimacy with men like Rosenthal is demonstrated by the record. The jury had the right to find that the defendant, through Rose, entered into an agreement with Rosenthal to advance to the latter the sum of $1,500 for the purpose of establishing a gambling place; and that the agreement contemplated a division of the profits between Rosenthal, Rose and the defendant. The district attorney contends that this agreement was evidenced by a chattel mortgage for $1,500 which was given by Rosenthal to a man named Donohue, who was a dummy for the defendant. That such a mortgage was given is a matter of record. That Rosenthal did open a gambling place is a conceded fact, and the evidence clearly indicates that for various reasons it never prospered. The jury further had the right to believe that Rosenthal began to talk about his connection with Becker, and to pass severe strictures upon his unfairness in having taken a chattel mortgage which even included Rosenthal's household furniture. We know that Rosenthal's place was raided on April 17th, 1912, under the direction of the defendant, pursuant to orders received from his superior officers; and the record discloses that this was probably brought about by the reports, which reached police headquarters from time to time to the effect that Rosenthal was conducting a gambling place under the protection of Becker. Rose and Mrs. Rosenthal both testified that at the time of the raid the defendant agreed to satisfy the chattel mortgage in consideration of the injury to which Rosenthal was being subjected, and it is a matter of record that the mortgage was in fact discharged on April 25, 1912, only eight days after the raid. In that connection it is significant also that on July 17, 1912, the day after the shooting of Rosenthal, the defendant's attorney, Hart, sought Rose at the place where he was then in hiding and obtained from *Page 331 him an affidavit to the effect that Rose, and not the defendant, had made the loan to Rosenthal.
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 Gaynor, 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 June, 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. *Page 332
From the foregoing skeleton of a few of the occurrences which the jury had the right to consider as a part of the history of this crime, it will readily be seen that the so-called "Harlem Conference" was not the sole reliance of the prosecution in attempting to establish the guilt of the defendant. It may, of course, be taken as true that if the jury had found the story of the "Harlem Conference" to be a pure fabrication, the defendant never could have been convicted. But the fact remains that the narrative of this part of the case was strongly fortified by the evidence which had preceded it. As to the "Harlem Conference" it is enough to say that four witnesses testified that the defendant attended it, and no one denies it. If there is any truth in the testimony bearing upon that important part of the case, the conclusion is inevitable that the defendant was present and that he urged the other conspirators, Rose, Webber and Vallon, to aid him in doing away with Rosenthal.
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 *Page 333 a sufficient explanation of the reasons for the killing of Rosenthal within forty-eight hours thereafter. These suggestions naturally bring to mind several facts and circumstances which should not be overlooked. These "gunmen" were creatures who, so far as the record discloses, had no connection with the gamblers of New York city. They belonged to a different stratum of society, and they had nothing to fear except from the police. They had no personal interest in getting rid of Rosenthal, and it may, therefore, be assumed that their activity in this affair was stimulated either because of a command from some one "higher up," or by the price which they were to receive. In looking about for some one who combined one or both of these elements the record naturally turns our view to the defendant. He was a police officer, whose peculiar duties invested him with great power in dealing with the vice of a great city. We find this powerful police officer in the office of the New York World at midnight of Saturday, July 13, 1912, in response to an intimation that this newspaper was to publish in its next morning's issue the affidavit of Rosenthal containing a detailed account of the alleged relations between him and the defendant. The purpose of his visit need not be discussed. That he was interested in preventing this disclosure is too obvious for surmise. On the following day, and again on Monday, the defendant devoted considerable time, through Sullivan, Rose and others, to getting an affidavit from Dora Gilbert, the former wife or mistress of Rosenthal, concerning the life and general character of the latter. In these circumstances, it must be plain that the theory of the defense based wholly upon surmise and conjecture, to the effect that Rosenthal was probably killed by the "gunmen" at the instance of the gambling fraternity, is overborne by the actual evidence tending to establish the defendant's motive for the crime and his participation in the arrangements which led to its commission. *Page 334
It is true, as stated in the prevailing opinion, that the witnesses Rose, Webber and Vallon for the prosecution were confessed murderers. They were testifying under agreements granting them immunity from the penalty of their crime. That fact cannot be denied. Their own lives were at stake and they needed no extraneous incentive to perjury. In the interest of fairness all this must be admitted. That is not a sufficient reason, however, for judicially denying to their testimony its proper probative force within the restrictive rules under which such evidence is always to be submitted to a jury. As these witnesses were all accomplices as matter of law, their testimony could of course have no probative value unless it was corroborated. As to many details the story of Rose is corroborated by other witnesses. In regard to the "Harlem Conference," there is no such corroboration of either Rose, Webber or Vallon, unless it is found in the testimony of Schepps. The prevailing opinion suggests that some of the members of the court think the evidence insufficient to justify the finding that Schepps was not an accomplice. To that proposition I decline to assent. All the evidence bearing upon the presence of Schepps at the "Harlem Conference" is to the effect that he was not within hearing range of the parties to it, and he testified that he did not know of the purpose of the meeting until some days after it had taken place. Schepps testified that the defendant was there; and if Schepps was not an accomplice that was direct and explicit corroboration of the others who were concededly accomplices as matter of law. I think it was proper for the trial court to submit to the jury the question whether Schepps was an accomplice or not (People v. Katz, 209 N.Y. 311, and cases cited), and this the trial justice did in strict accordance with the legal rules relating to the subject. The verdict of the jury necessarily imports a finding that Schepps was not an accomplice and it must, therefore, be assumed for the purposes of this review *Page 335 that the evidence of Rose, Webber and Vallon was corroborated within the provisions of the statute. (Code Crim. Pro. sec. 399.)
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 *Page 336 that he later changed his views and gave the defendant's counsel further opportunity for cross-examination. The prevailing opinion says it was then too late, but no reason is given for this assertion and the fact remains that the opportunity given by the trial court was not accepted by defendant's counsel. In these circumstances I find it impossible to say that the rulings of the trial court in this particular constitute error for which this judgment should be reversed. Much less am I willing to subscribe to an opinion in which, as I have already intimated, this court assumes to criticise the trial court, not merely in respect of the correctness of its rulings, but also regarding the mental and moral attitude by which the court may have been actuated in making them. That is no part of our jurisdiction.
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 *Page 337 the defendant's counsel, and which, in the language of the prevailing opinion, "was promptly and, very probably, properly denied;" this was followed by a second application upon the further ground that the defendant could not obtain a fair trial. Defendant's counsel insisted upon being heard orally and the court ruled that an affidavit must be submitted. Who was right? I had supposed it to be a well-established rule of criminal trial practice that such an application is always to be made upon affidavits, and not upon oral argument in the presence and hearing of the panel from which a jury is to be drawn. The context of the record clearly indicates that defendant's counsel was quite as much interested in airing his views before the panel then in attendance as he was in addressing his application to the presiding justice. I think the application was properly denied.
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 Rose 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 be considered." Even upon the assumption that the statement *Page 338 was allowed to stand as made, I think it can be justified by the subsequent conduct of defendant's counsel in introducing the written statement of Rose containing a detailed account of his dealings with defendant in the collection of tribute from disorderly houses.
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 *Page 339 it must remain unless the court otherwise direct;" and section 656 provides that "the commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same, or of any part thereof, on payment of his fees." These two sections indicate that so long as the commission is on file it shall be open to the inspection of both parties; but the following section (657) seems to make it clear that if a deposition taken under the commission is to be used on the trial it must be read. The provision of this last section is that such a deposition "may be read in evidence by either party on the trial." I am inclined to think that, under these provisions of the Code, defendant's counsel was not entitled to use, for the purposes of cross-examination, the depositions returned in the commission until they had been read in evidence. But even if that is not so, the trial justice later reversed his ruling and granted the request of defendant's counsel.
Rose 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 Rose. 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 Rose, Webber, Vallon and Schepps were inmates of the same prison under conditions which gave them an opportunity *Page 340 to converse with each other. I agree with the statement in the prevailing opinion that "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 that as matter of law the evidence was competent. No one will assert, however, that this is an error for which alone this judgment should be reversed. The record discloses, however, that the harmful effect of this ruling, if any, was considerably modified by a bit of evidence that crept in. Mr. Ryan, the keeper of the prison, was on the stand, and he was permitted to testify that the "cells were located one after the other, 1, 2, 3, 4. There were hours of exercise, when they walked the same as anyone else." That brief statement of the witness tells the story as completely as though he had been permitted to give testimony covering pages of the record, and the fact which defendant's counsel was seeking to establish was as clearly shown as though it had been reiterated over and over again.
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. *Page 341 Fanning (131 N.Y. 659, 663) where this court said that the judge "should not refrain from a just, accurate and clear presentation of the evidence to the jury, simply because when so presented it may fairly be regarded by the jury as bearing hardly upon the accused." I have read with great care the charge in the case at bar, and I am unable to see wherein it is erroneous. The prevailing opinion points out no specific errors of substance and I have discovered none. The variance in the volume and character of the evidence adduced respectively for the prosecution and the defense seems very satisfactorily to explain those features of the charge which are criticised.
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.