I concur with my brother HISCOCK. 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 *Page 313 verdict to stand. But I reach that conclusion for the additional reason that the verdict is against the weight of the evidence, and, although a majority of the court do not consider it necessary to pass upon that question, I am impelled by the dissent of my brother WERNER to state my view of the facts.
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 People'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 Code 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, *Page 314 199 N.Y. 414.) To justify a reversal on the facts under such circumstances, the appellate court must be able to detect some reason why the version which has been adopted by the jury should have been rejected." (People v. Poulin, 207 N.Y. 73, 78.) Why, then, should the version adopted by the jury in this case have been rejected?
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. (SeePeople 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 myself 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 New York World on Sunday, July 14th, 1912, of Rosenthal's affidavit containing *Page 315 charges against the defendant actuated the latter to commit the murder.
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 deed 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 Sam 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 Schepps, to a very slight extent *Page 316 corroborated by Hallen and Luban. I have carefully analyzed the mass of evidence on collateral issues. Its volume compels me now to content myself with the dogmatic assertion that, except for the testimony of the witnesses named, there is not a particle of evidence in the record tending to connect the defendant with the commission of the crime. I am spared the necessity of discussing the evidence showing the worthless character of Hallen and Luban, their motives, the inherent improbabilities of their testimony, the contradictions by other witnesses, the established perjury of Luban, and the conflict between him and Rose on a collateral matter, tending strongly to discredit both, and indeed to cast suspicion on the whole case, because we are all agreed that, as a matter of fact, if not of law, a finding that Schepps was not an accomplice is essential to the People's case.
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 Rose to employ the "gunmen" to murder Rosenthal. Rose visited them and told them what the defendant wanted. They readily assented and offered to do the deed at once, but Rose said to wait and to hold themselves in readiness to respond to his call, to which they assented. The next day Rose 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. Rose 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 Rose to enlist the latter's aid, and appointed a meeting in Harlem, on a date not named, but probably in June. Rose and Webber kept the appointment, taking Vallon and *Page 317 Schepps, whom the defendant did not expect and knew but slightly. Nothing was planned and nothing done at the meeting except that the defendant, in the presence of Vallon, requested Webber to aid Rose to do what the latter had already done, namely, to persuade the "gunmen" to murder Rosenthal, and Webber consented. Schepps remained where he could see them but could not hear the conversation. Following that meeting, the defendant held no communication whatever with the conspirators and did nothing in the furtherance of the murder plan except that he met Webber alone on the street once and inquired why he didn't see that Rosenthal was "croaked" and except that he had daily conversations on other matters with Rose, usually over the telephone, in the course of which he invariably complained of the delay in murdering Rosenthal and asked that it be done speedily. On Sunday, July 14th, the New York World published Rosenthal's affidavit. Some allusion was made to the matter in the paper on Saturday. At any rate, it was known on Saturday that the affidavit was to be published the next day, and the district attorney issued subpœnas for Rosenthal, Rose and others in the underworld to appear before the grand jury the following week. On Sunday Rose, Webber, Vallon and Schepps went on the Sam Paul outing, where the chief topic of conversation was Rosenthal's "squeal." On their return to the city, Rose called the defendant on the telephone to report to him the sentiment of the gambling fraternity. On Saturday and on Monday, the last time toward evening, the defendant called Rose on the telephone at a public bath, which the latter frequented, to get him to assist in various ways in the effort to which the defendant was directing his energies to discredit Rosenthal, to destroy the effect of his story and to induce witnesses not to corroborate him before the grand jury. In each conversation the proposed murder was incidentally referred to, as it was on Sunday night, and the request which the defendant had *Page 318 been repeating over the telephone daily for weeks was made that the job be done. About two o'clock Tuesday morning, July 16th, the murder was committed.
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 talk 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 *Page 319 refused to proceed further because unable to find any corroboration.
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 him 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 be found anywhere, which was sure to be laid at his door. Before theWorld 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 *Page 320 the defendant's visit to the World office at midnight on Saturday, July 13th, and the district attorney even argues, to use his phrase, that the defendant's efforts "to kill the story" tend to prove him guilty of the murder, on the theory that both were parts of a single plan. That argument has nothing to rest upon except the sequence of events in point of time and the fact that the defendant made use of Rose to "kill the story." The defendant did attempt to prevent the World publication. Not succeeding in that attempt, he visited the World office late Saturday night with his counsel to get copies of the affidavit, on which to institute a prosecution for criminal libel, and to make a statement which the World published later. He endeavored to get an affidavit from Dora Gilbert, Rosenthal's former wife. His first efforts were unsuccessful. Toward evening Monday he requested Rose to take two men named to her apartments and to assist them in getting her affidavit for publication the next day. Rose also took along Schepps and Vallon. Late Monday night a reporter of the Morning Telegraph, presumably sent by the defendant, called at Dora Gilbert's and took away a copy of her affidavit for publication. Late that night and within a few hours of the murder, the defendant was again at the World office to return some clippings relating to Rosenthal which he had borrowed. Earlier in the day, according to Rose, the defendant had requested him to have Webber see three men of suggestive nicknames in the underworld, who had been subpœnaed to appear before the grand jury, to persuade them not to corroborate Rosenthal. Yet we are asked to believe that this lieutenant of police within a few hours of a contemplated murder was exhibiting to the newspapers his concern over a charge made against him by his intended victim, and that he was expending his energies to obtain evidence to discredit a man about to be killed and to prevent witnesses from corroborating testimony that was never to be given. *Page 321 And more incredible still, that to accomplish such useless results he was using the very men by whom he intended to commit the murder.
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;" they are in readiness, nothing 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 *Page 322 to him on the trial to attribute to the defendant a reason exactly opposed to the one which in fact had actuated himself.
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 Rose already had their promise to do the deed on call. True, Rose says the defendant accused him of "stalling," but if the defendant did not trust Rose, he would not have been likely to call in another whom he trusted less. If, as the People claim, Rose was the defendant's confidant, "stoolpigeon" 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 Rose 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. Now note, the place of the appointed meeting was Harlem; the time, *Page 323 about nine o'clock. Nothing more definite. By a strange coincidence, the defendant, Rose, Webber, Vallon and Schepps found themselves at One Hundred and Seventy-fourth street and Seventh avenue, all arriving about the same time, and Webber said that on leaving his poker room at Forty-second street he looked at his watch, as he had an appointment to meet a friend named "Itzky," and it was then eleven-thirty. If the story was a fabrication, it was important to fix the time and place, so as not to admit of contradiction. The place was a vacant lot in Harlem. The time, they refused to fix, either the day of the week or the month. They thought it was the latter part of June, but Schepps, who remembered the number, 2529 Seventh avenue, where the "gunmen" lived, said it might have been as early as May. Three of these men were telling their story to the district attorney within a few days after the murder, when the Harlem meeting, if it occurred, must have been fresh in their minds, and when at least they must have had means of fixing the date. Their unwillingness to fix a date, and their evasive manner of testifying on the subject, which cannot be portrayed in an opinion, prove the falsity of their testimony. But there were two witnesses who could have corroborated their story, the two chauffeurs, who drove them to the meeting, and they were not produced. If nothing more appeared, the failure to produce the two chauffeurs or to account for their nonproduction would condemn the story as false. But more did appear. Schepps, to account for not hearing the conversation, unwittingly no doubt, said that he remained talking with the chauffeur with whom he was well acquainted. Pressed to give the name, he evaded, and finally gave nicknames, "Itch" and "Moe Levy." The People then certainly could have produced at least one of the chauffeurs. Of this more, later.
2. Schepps was an accomplice.
I now briefly outline his connection with the case *Page 324 according to the People's evidence. He and Rose were bosom friends and almost constant companions. He went to see the "gunmen" at least three times before the murder, taking money and messages from Rose. He knew them to be "pretty tough customers." He was at the Harlem conference, but remained where he could see and not hear. After the meeting he rode downtown in the same car with Rose, Webber and Vallon. During that ride not a word was said of the proposed murder, though Webber and Vallon had had no inkling of it before the meeting. He went on the Sam Paul outing with Rose, Webber and Vallon, and, though every one else was talking of Rosenthal's "squeal," he heard not a word of it. The next day and within twelve hours of the murder he accidentally met Rose and Vallon at Luchow's on Fourteenth street. But he went out and stood on the sidewalk "from lunch time until evening" while Rose and Vallon discussed murder inside. That night he was at Dora Gilbert's with Rose and Vallon. When the tire blew out on their way to Sharkey's saloon from there he telephoned for the "grey car" for Rose, and when it arrived he went with Rose and Vallon to One Hundred and Forty-fifth street, where the "gunmen" were expected to be. He rang the hall bell for Cirofici, and when the latter appeared heard Rose ask where the rest of the crowd were and Cirofici's reply that they had been sent for to come downtown. He returned with Rose, Vallon and Cirofici to Webber's poker room, where they were joined by the three other "gunmen." On the ride up and back not a word was said of the impending murder. He sat down with the others at a table in Webber's poker room where refreshments were served. He heard Webber say that he would locate Rosenthal, saw him leave and shortly return and heard him report that Rosenthal was at the Metropole. He saw the "gunmen" immediately get up and go out. He waited about fifteen minutes, went over to the Times *Page 325 Square Building and bought a soda, heard shots and walked toward the Metropole, learned that Rosenthal had been shot, walked on and accidentally met Vallon, said "they just killed Rosenthal, this is no place for us," went with Vallon to Fourteenth street, and went to bed, got up at six o'clock and went to One Hundred and Forty-fifth street at Rose's request to see the "gunmen," made an appointment to meet them later in the day at Fiftieth street, later was present when Webber gave Rose the $1,000 to pay the "gunmen," and went with Rose and saw it paid. On Thursday, the 18th, he left the jurisdiction and went to Hot Springs, Arkansas, whence he returned on a promise of immunity. And yet we are asked to sustain a verdict, which, as my brother WERNER admits, imports that Schepps was not an accomplice. And it is suggested that we should do this for the reason that, four murderers having testified to save their own lives that Schepps did not know what was going on until after the murder, the question was properly submitted to the jury. Incredible as the story is, it may be that it presented a question of fact, but we are dealing with the facts, and a human life depends on our decision.
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 *Page 326 the deed was done, and then he took him back into his confidence.
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." Rose 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 Rose both testified that later, they disagree as to the hour, they were standing in front of Webber's place at the corner of Forty-second street and Sixth avenue, talking with a man named Jack Sullivan or J.A. Reich, 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 Rose $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 Rose 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 Rose and Webber. On *Page 327 the motion for a new trial Brescher made an affidavit corroborating Sullivan.
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 Rose, 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 *Page 328 with want of diligence in not locating witnesses from nicknames, especially as the district attorney had the witnesses at his office and neither called them to the stand nor informed the court nor defendant's counsel of them.
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.