People v. . Shilitano

At about 11:45 o'clock in the evening of May 13th, 1913, in front of No. 239 Mulberry street in the city of New York, an atrocious crime was *Page 183 committed. One Rizzo, a man about twenty-two years of age, one Heaney, a police officer, and one Teare, a police officer, were the victims. The three persons named were shot, one immediately following the other, and all died as a result thereof. It is asserted by the People that the three men were slain by one and the same person.

The defendant was indicted and tried for the murder of Officer Heaney. The trial resulted in a conviction of murder in the first degree on the 6th day of March, 1914. From the judgment of conviction an appeal was taken to this court. Pending that appeal, and between the 8th and 11th days of March, 1915, five witnesses called by the prosecution upon the trial, whose testimony the People relied upon for a conviction, severally made statements, which they subscribed and to the correctness of which an oath was administered, to representatives of the New YorkWorld at the office of that newspaper, in which statements (to which reference will be hereafter made) they in effect asserted that the evidence given by them upon the trial of the defendant was false. Upon an affidavit of counsel for defendant, referring to the statements, copies of the same, and an affidavit of a representative of the newspaper, application for a new trial was made to the justice who presided at the trial. The motion papers asked that the witnesses be summoned before him for examination. The application was opposed by the People, and amongst other affidavits in opposition to the application, the district attorney presented an affidavit made by one Chieffo, one of the witnesses who had made a statement to the representative of theWorld, in substance that the evidence given by him upon the trial was true and the statement made by him at the office of the New York World was false and made through fear. The justice to whom the application was made denied the request to compel the attendance of the witnesses in court for examination and denied the application for a new trial. From the order entered appeal was taken to this court. *Page 184

Immediately following the publication of the statement in theWorld the witnesses were separately taken to the rooms of the Bar Association in the city of New York, where they were severally interrogated at length by the assistant district attorney, and the statements then made by them were reduced to record by a stenographer. In April, 1915, the appeals from the judgment and order denying application for a new trial were brought on for argument. In June, 1915, for the reasons stated in our decision (People v. Shilitano, 215 N.Y. 715), we suspended a determination of the appeals to the end that opportunity be afforded defendant to renew the motion for a new trial in the manner suggested in the decision. Thereafter, and in July, 1915, subsequent to the interviews had by the assistant district attorney at the bar association, three of the five witnesses made affidavits in due form embracing the identical language embodied in the statements made to the World. Upon such affidavits, the affidavits of counsel for defendant and of James Robbins, verified in March, 1915, the verified statement of Chieffo, dated March 11, 1915, and all proceedings had in the case, application for a new trial was renewed. The application was heard by the judge who presided at the trial; the five witnesses were brought before him and interrogated at length by the counsel for defendant and the assistant district attorney. The application was denied and the appeals are now before us upon the original record of the trial and the records of proceedings upon the applications for a new trial.

The evidence of the witnesses called by the People on the trial, briefly summarized, tended to show that defendant a few minutes before the shooting was in front of No. 241 Mulberry street; that defendant's father approached defendant and gave to him "something shiny" which defendant put in his right sleeve; that Rizzo, the first victim, had spent a part of the evening in a poolroom at No. 235 Mulberry street; that he left the poolroom a few *Page 185 minutes before the crime was committed, and walked north to a point in front of No. 239 Mulberry street where defendant met him and fired a shot at him; that Rizzo fell upon the sidewalk and his death was immediate; that Officer Heaney, who was doing patrol duty, was on the opposite side of the street; that immediately after the shot was fired at Rizzo the officer rushed across the street carrying his club in his hand and was about to strike defendant who had started north when defendant suddenly turned and shot him. The second officer, Teare, was coming south on the street, and as he reached the point where he met defendant, the latter shot him and then fled into the hallway of the house where he resided with his parents, No. 241 Mulberry street, and escaped.

The jury gave credence to the evidence, notwithstanding certain contradictory statements made by the witnesses on cross-examination, and evidence of witnesses called by the defense tending to affect the credibility of at least one of the principal witnesses for the People, and found defendant guilty of the crime of murder in the first degree.

Evidence was introduced on the trial relating to incidental and collateral matters, such as the finding and identification of the body of the officer, Heaney, the cause of death, comparison of the bullets found in the bodies, etc. The remaining facts disclosed in the record which I have briefly summarized were adduced from the evidence of the five witnesses, namely, Nellie De Carlo, a young girl of about sixteen years of age, whose evidence was of a damaging character to the defendant, Gennaro Sellitto, James Morelli, John Verno and Frank Chieffo.

In view of the careful review of the record which each member of the court has made, I do not deem it expedient to enter upon an analysis of the evidence given upon the trial by the various witnesses and comparisons of the same with the details of the statements and affidavits *Page 186 made by them and their evidence given upon the application for a new trial, which would result in extending this opinion to extreme length. I shall refer only to the same as briefly as possible to give expression to the views I entertain relating thereto.

It is important first to consider the nature of the statements made by the five witnesses to the representative of the New YorkWorld, the manner in which the statements were secured and the facts connected with the making of the same.

The affidavit of Mr. Robbins, a disinterested witness in the proceeding for the new trial, is to the effect that Nellie De Carlo accompanied by her father called at the office of the New York World, on March 7th, 1915; that he, Robbins, was assigned by the city editor to interview her; that thereupon Nellie De Carlo told him what she had testified to on the trial of the defendant and said that she did not tell the truth then and that she desired to make a sworn statement to that effect.

Mr. Robbins, in order to thoroughly acquaint himself with the history of the case and the testimony on the trial, requested Nellie De Carlo to return to the office on the following day; she did return on the following day and was questioned at length by Mr. Robbins and Mr. Swope, city editor of the New York World, for the purpose of eliciting from her all that she knew in relation to the homicide. Mr. Robbins states that she was given every opportunity to state all she knew and her statement was incorporated in the affidavit which was read over to her and by her read over to Mr. Robbins, and then signed and sworn to by her; that she repeatedly both before and after signing the affidavit stated in the presence of Mr. Robbins and Mr. Swope that she freely and voluntarily told her story; that she knew she was confessing to perjury on the trial and was doing so of her own free will, unurged by any one but her priest.

Upon the trial Nellie De Carlo, who lived at No. 243 *Page 187 Mulberry street with her parents, on the third floor of a tenement two flights up, testified that from one of the front windows of her room on the night in question she saw the defendant on the sidewalk in front of No. 241 Mulberry street; that his father came along and had a brief conversation with defendant, and she saw the father hand something to defendant "shiny," which defendant put in his right sleeve; that she saw Rizzo come from the direction of Spring street, and when he was about five feet from the defendant the latter shot him; that Rizzo fell to the sidewalk; that she saw Officer Heaney run across the street, and the defendant turned around and in a swift manner shot him; that Heaney fell to the ground and the defendant started towards Prince street.

In the statement made by her to the New York World she asserted that at the time the crime was committed she was in bed and asleep, and saw no part of it; that she attended St. Patrick's Catholic Church on Mulberry street; that she had been to confession a number of times during the preceding year, but had been refused absolution because she had admitted she had lied about the shooting, and she had been told by her father confessor that she should go to a judge and make full confession, and that was the reason she was making the statement. She stated that the story she told upon the trial was induced by fear. This witness had been in the custody of the police department from the time of her discovery as a witness down to the time of the trial — a period of nine or ten months.

Nellie De Carlo was interrogated by the assistant district attorney at the Bar Association soon after her statement was made public, and was examined as a witness in this proceeding. Her evidence covers a number of pages of the record. A large portion of it is devoted to an examination upon the question of fear, intimidation, etc. She adhered to the statement that at the time of *Page 188 the shooting she was asleep in her room and did not see or hear anything connected with the shooting.

The affidavit of Mr. Robbins further discloses that he and other reporters were assigned by the city editor to make investigation to ascertain the other witnesses who had testified for the People on the trial of defendant; that these witnesses, Morelli, Verno, Sellitto and Chieffo were found and told by representatives of the World of what Nellie De Carlo had done and were asked whether or not they desired to make statements; that within a few days the parties named came to the office of the World and signed affidavits relating to the testimony severally given by them on the trial of the defendant; that before the affidavits were signed Mr. Swope, the city editor, Mr. Beazell, Mr. Hitchcock, and deponent (Robbins) questioned at length the witnesses for the purpose of eliciting from them the facts they knew surrounding the homicide and the testimony given by them upon the trial, and all the witnesses stated they came to the office of their own free will, and with the exception of Morelli all said they understood and realized that they were confessing to perjury on the trial; that they made the statements and affidavits because they did not want to see an innocent man put to death because of their false testimony.

John Verno testified on the trial that he saw Rizzo and defendant in the poolroom, No. 235 Mulberry street; that defendant left there about 11:45 P.M. and was followed by Rizzo, and soon thereafter by witness; that he saw defendant put his hand in his back pocket, run into the street and shoot Rizzo, and the latter fell, and that he, witness, then ran into the grocery store at No. 243 Mulberry street.

In the statement made to the World March 9, 1915, and the affidavit made by him Verno deposed that on the night of the homicide he left home, No. 285 Mott street, and went to East One Hundred and Eighteenth street to visit his mother; that he remained there until *Page 189 9:30 P.M., he then left there and arrived home about 10:30 P.M., went to bed and fell asleep immediately. The next afternoon he read of the homicide. He knew nothing further of the case until about the middle of June, when a detective ordered him to report the following day at the district attorney's office. He reported there, was interrogated for some time, denied that he knew anything about the crime, and was permitted to leave. Again, in February, 1914, he was interrogated by the assistant district attorney at length and was sent to the House of Detention; that the testimony he gave upon the trial to the effect that he saw defendant shoot Rizzo was false; that he was at home in bed and did not know a murder had been committed until the next afternoon. Upon examination in open court he adhered to the foregoing statement.

Gennaro Sellitto testified on the trial that when Rizzo was shot, the defendant was about thirty feet distant from Rizzo; that defendant had an article in his hand that looked like a revolver. Sellitto said he heard a shot and an officer who came across the street fell to the ground, the second officer came down the street and defendant fired another shot, the second officer fell a moment later and defendant ran into the hallway of No. 241 Mulberry street. The witness was taken into custody that night as a witness and detained until May 14th, when he was released on one hundred dollars bail. On May 16th he made a statement to the assistant district attorney in which he stated he saw some man shoot Rizzo, but did not see the face of the man who did the shooting. June 8th he made an affidavit that the man who shot the three people that night was not the defendant. To the World reporter his statement was in effect that while he witnessed the shooting that he was positive the defendant did not do the shooting, but the shots were fired by a heavy-set man about forty years of age, dressed in dark clothes; that he did not see defendant that night, and upon this *Page 190 investigation adhered to the same story. This witness was in the House of Detention about four months, and, as appeared from the testimony of his mother and wife, he claimed that attempts were being made to coerce him to testify against and identify the defendant.

Upon the trial the witness Morelli testified that he saw the defendant in the cafe off the poolroom, and he also saw Rizzo in the saloon next to the poolroom; afterwards he saw the defendant and Rizzo on the street; they were about twenty to twenty-five feet apart, and he, Morelli, was then facing toward Spring street; that he heard a pistol shot and did not know where the defendant was at the time, but he saw the defendant about five minutes before he heard the shot in front of No. 241 Mulberry street. At the time the shot was fired Rizzo was in front of No. 239 Mulberry street, and after the shot was fired Rizzo fell to the ground and the witness helped to carry him into the hall of the building at No. 235 Mulberry street. In his statement to theWorld and affidavit following, as well as upon the investigation, he stated he heard two shots fired; that when Rizzo fell after the first shot, he, Morelli, then ran towards the saloon, stopped in front of the poolroom, and not hearing any more shots fired went back and found the bodies of Rizzo and Officer Heaney on the street about ten yards apart. This witness at all times insisted that he did not see the defendant fire the shots and did not know who did the shooting. He was arrested, taken to headquarters and questioned that night, and later was examined on various occasions by the prosecuting officers.

Frank Chieffo, upon the trial, testified that he was about opposite No. 239 Mulberry street when he heard a shot, turned and saw Rizzo falling to the ground and defendant running up the street, saw Officer Heaney run across the street, heard another shot, saw a flash from the direction of defendant where he was close to the building *Page 191 about three feet from Heaney, saw Heaney fall and as he walked up street heard one or more shots.

March 11th, 1915, Chieffo in substance in a verified statement made at the World office, stated that on the night of the murder he was at a club of which he was a member at 324 East Fourteenth street, and remained there until after eleven o'clock when he started for his home, No. 242 Mott street. He described the route he traveled on his way home which did not include Mulberry street. He said he reached home a little before twelve o'clock, immediately went to bed and asleep, and did not learn of the murder until the following morning; that about the latter part of October he was taken to the office of the district attorney, and before that time he had not discussed the murder with any person, not even with the members of his family, except what he read in the papers. At the district attorney's office he told the assistant he did not know anything about the murder. He was then permitted to depart. Until February 3d he was not again interrogated, but on the latter date a detective picked him up, and he was then coerced to say he saw the shooting and consented to do so. He was then taken to the office of the district attorney, where he made and signed a statement repeating what he said to the detective, and was then taken to the House of Detention, where he remained until after the trial. He stated that his testimony on the trial as to the shooting was not true; that the knowledge that he had sworn an innocent man's life away made him decide to do what he could to take it back, and the statement was made of his own free will, and he made the same uninfluenced by any person and assumed full responsibility for it, as well as any result arising from having made the same.

The affidavit made by Chieffo on April 2d 1915, followed an interview had by him with the assistant district attorney, immediately following a publication of his verified statement appearing in the World, and was used in *Page 192 opposition to the application for a new trial upon the first hearing. In that affidavit he repeated the substance of the testimony given by him on the trial and deposed that all his testimony given upon the trial was true, and that the statement made by him at the office of the World was not true, but was made because of fear of the brother of defendant and of friends of the defendant. Upon the investigation he adhered to the facts stated in the last affidavit.

In the foregoing summary I have omitted a reference to the details of statements, affidavits and oral testimony bearing upon the question of the exercise of an improper influence on the witnesses due to the conclusion reached by me in this extraordinary case. On behalf of the defendant it is argued that without the testimony of the five witnesses the record in this case does not disclose sufficient evidence tending to connect the defendant with the crime for which he has been convicted; that threats, coercion and confinement in the House of Detention prompted the five witnesses to give false testimony against the defendant. Upon the part of the People it is asserted that relatives of defendant by threats and improper means coerced the witnesses to make statements and affidavits tending to show that they had testified falsely on the trial.

Of the five witnesses who testified against the defendant on the trial, all of them except Morelli (who did not undertake to identify the defendant and now emphatically states that the man who did the shooting was a man other than defendant), have testified or deposed that upon the trial of the defendant they testified falsely, and that they were guilty of perjury. They sought to palliate their crimes by claiming they were induced to commit perjury, thus charging other individuals with the crime of subornation of perjury. On the other hand, it is asserted by the People that the witnesses testified truthfully on the trial and since then they have committed *Page 193 the crime of perjury and were induced to commit that crime by other individuals, who are thus charged with the crime of subornation of perjury. In the meantime the defendant is confined in the death house under sentence of death, and we are asked to determine at what particular time the witnesses referred to told the truth and incidentally what person or persons, if any, have been guilty of subornation of perjury.

The record in this case does not disclose that any acquaintance or relation existed between the defendant and Rizzo, or any reason or motive inducing the defendant to kill Rizzo. While motive is not an essential ingredient of the crime of murder in the first or second degrees, "intent" is essential to a conviction in either degree. As bearing upon the question of intent, motive or absence of motive may present considerations of the utmost importance; consequently the absence of evidence showing any relations existing between the accused and Rizzo was a pertinent and proper subject to be considered by a jury upon the question of the probability or improbability of the guilt of the defendant, especially so in a case where the question of identity is at issue. (People v. Dinser, 192 N.Y. 80.)

True, the defendant was not tried for the murder of Rizzo; still it is asserted by the People that the three men were murdered by one and the same person; that the murderer of Rizzo killed Officer Heaney to effect his escape from arrest for the murder of Rizzo. Such facts if established would tend to disclose a motive for the murder of Officer Heaney, but the killing of Rizzo and of the officer by the same person and the identity of the defendant as the murderer of Rizzo was not admitted. The identity of the murderer of Rizzo was a material fact in the case; thus the relations between Rizzo and defendant were an important and pertinent subject for consideration.

The record does not disclose evidence bearing upon the *Page 194 antecedents of the defendant. Upon the hearing of the application for a new trial, a witness called by the People, one Laboria Gambardella, a detective-sergeant at the time of the homicide, then active in the case on behalf of the People but no longer a member of the police department, testified to the effect that he lived in the neighborhood of Mulberry street at one time; that he was well acquainted with Rizzo and defendant and had seen them together and they seemed to be friends; that he never heard of any difference between them or between Rizzo and defendant's father; that Rizzo was a strike breaker and before he entered that employment he was a good boy, but soon after he was so employed he shot a man, ran into the subway and attempted to escape but was caught; that a short time before the crime in question Rizzo shot one Loretto, and Loretto after the crime in question was accused of having shot Rizzo; that Loretto and Nellie De Carlo were good friends. It should also be observed that the witnesses in question did not testify upon the trial as to the presence of any one of the other witnesses in Mulberry street at the time the murder was committed, so that the evidence of their presence there is dependent solely upon the testimony they separately gave relating to their movements that night. The defendant was presumed to be innocent. It was incumbent upon the People to establish his guilt beyond a reasonable doubt. That burden the prosecution assumed by the testimony of the witnesses named; the jury believed their evidence and convicted the defendant. The jurors were afforded an opportunity to look upon the witnesses and hear their testimony. What court or judge can fathom the minds of the jurors or speculate upon what basis they formed a judgment? What individual can say that the jurors did not reject the testimony of four of the witnesses and believe the story told by the girl Nellie De Carlo alone, or that the testimony of all the witnesses or only a portion of them was sufficient to convict the defendant? The *Page 195 case is now surrounded with perjury and that confessedly admitted by four of the five witnesses (the one remaining not having identified the defendant as the guilty party), and to the crime of perjury is added charges of subornation of perjury by both sides. There is no escape from this conclusion. How, then, will the ends of justice be promoted? If the retraction of testimony be true and the judgment against the defendant is enforced he will suffer the penalty of death for a crime for which he has not been legally convicted. If it be said that to permit witnesses, by statements under oath after a trial had, to confess their guilt of perjury and thereby enable one convicted of a crime to secure a new trial would establish a precedent which would enable them to trifle with the administration of justice, the fact remains that the Penal Law makes ample provision for such cases, and experience in that direction is apt to prove sad and expensive. In this case the witnesses are the individuals who in a major degree are trifling with the court; they are the parties who charge subornation of perjury, and they should be brought face to face with the defendant and the parties accused before the tribunal so well adapted to determine truth, the same tribunal the defendant was tried before — a jury — where all parties interested may be heard and their credibility weighed. Truth will ultimately prevail, and any individual guilty of a crime will finally answer for the same. The course suggested will promote justice and prove more satisfactory than to have this court enforce the death penalty in this case where the evidence is so conflicting that examination of the same must result in a variance of conclusion, or at least in the minds of some the existence of a reasonable doubt as to the particular time when the witnesses so susceptible to a willingness to commit perjury told the truth. This case is unique in its surroundings. Did it present a situation where beyond "reasonable doubt" bad faith was apparent, or where the evidence exclusive of that adduced from *Page 196 witnesses confessing perjury was sufficient to sustain a conviction, a different result than the one I recommend would no doubt follow.

Assume that the record in this case was in substance presented upon an application for a new trial in a civil action wherein the plaintiff had recovered a substantial verdict; would any trial justice permit a verdict to stand or hesitate to grant a new trial and send the evidence to the district attorney? Orders granting new trials upon less incriminating facts have been made and sustained. (Chapman v. D., L. W.R.R. Co., 102 App. Div. 176;O'Hara v. B.H.R.R. Co., 102 App. Div. 398; Hammond v.D., L. W.R.R. Co., 140 App. Div. 810; Shanahan v.Feltman, 154 App. Div. 809.) But few decisions are to be found in criminal cases, especially in this state; the following cases, however, sustain the principle which in my opinion should prevail: State v. Moberly (121 Mo. 604); Dennis v. State (103 Ind. 142); Mann v. State (44 Tex. 642); Bates v.State (32 So. Rep. [Miss.] 915); People v. Fridy (83 Hun, 240).

The assistant district attorney upon the argument of the appeals, with his usual fairness in the presentation of cases in this court, in his brief states: "It might be conceded for argument's sake that defendant upon the proceedings now under review successfully impeached every one of the People's important witnesses, but even if he did the fact would avail him nothing. MALONE, J., was not only justified but required to deny the motion under the Becker opinion, supra."

For the purposes of discussion, I do not assume that counsel by the use of the language quoted intended to concede that the record discloses that the defendant should necessarily succeed on this appeal. His position, as I understand it, is that the new evidence, even if uncontradicted, was inadequate to bring about a new trial; that it produced no new facts and its sole tendency was to impeach or discredit the People's trial witnesses. *Page 197 In support of the proposition he cites People v. Priori (164 N.Y. 459); People v. Patrick (182 N.Y. 131); People v. EngHing (212 N.Y. 373); People v. Becker (215 N.Y. 126);People v. Schmidt (216 N.Y. 324).

The assistant district attorney misapprehends the effect of the decisions made by this court. The statements and affidavits of the witnesses were made subsequent to the trial and conviction of the defendant, consequently they did not exist and were not discoverable at the time of the trial. If the facts were uncontradicted, if they were true, is there a court of law that would permit a death sentence to be imposed? Such a determination would be unprecedented in this state. If the contention of the assistant district attorney be correct, this court was powerless to suspend the hearing of the appeal in the first instance and order a further hearing upon the application for a new trial. The fact that we assumed jurisdiction of the appeal from the order denying an application for the new trial and required further investigation to be made by oral examination of the affiants to enable us to reach a determination, is evidence of our conclusion that we had power to review any order made on the application adverse to the defendant, and that fact is emphasized when such determination was rendered after a full consideration of the brief of the assistant district attorney on the first hearing wherein is contained the same point he now urges and which he supported by argument based upon the cases of Priori, Patrick and Eng Hing.

In the same brief, counsel argues that the decision of a motion for a new trial involves the exercise of discretion; that this court will not interfere unless it finds that the discretion has been abused, thus conceding our authority to review the discretion of the court below. Lord MANSFIELD said: "Discretion when applied to a court of justice means sound discretion guided by law." The discretion to be exercised by a court or judge must ever be *Page 198 applied to promote the development of truth and a promotion of substantial justice. When we speak of the impeachment of a witness, we refer usually to the development of facts tending to affect his credibility or to show his character for truthfulness is bad. The testimony of a majority of people called as witnesses is sought to be impeached or discredited not only by cross-examination but frequently by the production of witnesses who are called to testify to a different state of facts. When we consider an appeal from an order denying a new trial in a case like the one at bar, we frequently find affidavits or depositions of parties or individuals other than the witnesses attacking the truthfulness of witnesses upon a trial by reason of previous or subsequent statements attributed to them inconsistent with statement they made on the trial. It is of that nature of so-called impeachment we have heretofore spoken of, except in the cases of Eng Hing and Becker which within our reasoning are clearly distinguishable from the case at bar. In the Eng Hing case two women, Florence Hong and Grace Mack were sworn as witnesses in behalf of the People. The nature of the proceeding is described in the opinion of this court written by Judge WERNER and need not be referred to here. The two witnesses named did not recant their testimony given on the trial, but, on the contrary, contradicted by affidavit the alleged impeachment of their evidence. In the Becker case one Marshall, an important witness for the People (as stated in the opinion of Chief Judge BARTLETT), while intoxicated in the city of Philadelphia signed and verified a statement somewhat inconsistent with his testimony on the trial. Subsequently he repudiated the statement as being different from what he understood it to be, and this court, after a review of the entire evidence, sustained the decision below denying a motion for a new trial.

In the case at bar the witnesses retracted under oath the material facts testified to by them on the trial. Such *Page 199 disavowal or recantation is not "impeachment" as contemplated in the statute or by our decisions. Where witnesses under oath retract evidence given by them upon a trial their recantation and prior testimony are subject to a careful scrutiny, and if doubt be entertained as to the particular time the witnesses were truthful the doubt should, especially in a capital case, be resolved in favor of a defendant. The application for a new trial in this case is out of the ordinary. In view of the conflict of evidence, the danger of a greater evil should be avoided and the defendant should have the opportunity of meeting the question of his guilt before a jury qualified by observation and scrutiny to determine the truth or falsity of the charge against him. I recommend a reversal of the judgment and order and that a new trial be ordered.

COLLIN and CUDDEBACK, JJ., concur with SEABURY and CARDOZO, JJ.; HOGAN, J., reads dissenting opinion, and HISCOCK, J., concurs; WILLARD BARTLETT, Ch. J., taking no part.

Judgment of conviction and order denying motion for a new trial affirmed.