Three witnesses for the prosecution have stated under oath to the trial judge that their testimony upon the trial was false. It became his duty to say whether they were conscience-stricken penitents, or criminal conspirators to defeat the ends of justice. He has held them to be conspirators. Unless we can say that he was wrong, and that they were not conspirators, but penitents, we have no right to reverse his order. But I do not see how we can say that he was wrong. I do not understand that even the judges who think this judgment should be reversed, assert that he was wrong. Their view is that with such a conflict of oaths, he should have abandoned the search for truth, and turned it over to a jury. That would have been an easy avenue of escape from a solemn responsibility, but I cannot satisfy myself that along that avenue lay the path of duty. I think it was the duty of the trial judge to try the facts, and determine as best he could where the likelihood of truth lay. That is the very reason why the statute authorizes him to compel the personal appearance of the affiants before him (Code Crim. Pro. § 465, subd. 7; People v. Shilitano, 215 N.Y. 715). I do not mean that to justify a new trial, he must have been convinced — firmly or with a sense of certainty convinced — that the first story of the witnesses was false and that their new story was true. He might act upon a reasonable probability. But if, on the contrary, he was convinced that the second tale was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked (People v. Tallmadge, 114 Cal. 427; Parker v.Hardy, 24 Pick. 246, 249). He was not at liberty to shift upon the shoulders of another jury his own responsibility. That *Page 181 would have been to make the conspiracy triumph. He was charged with a responsibility to seek the truth himself.
In the fulfilment of that duty, the judge who heard and saw the witnesses has held that there has been an attempt by the defendant "to poison the wells of justice." We ought not to set aside that decision on the facts unless it is clearly wrong (People v. Becker, 215 N.Y. 126). At least one witness, Chieffo, has said that threats of murder were made to induce him to recant. He says that the threats came from the defendant's brother. The brother has not taken the stand, and Chieffo's testimony remains uncontradicted to this day. Verno, who did recant, was the defendant's friend and companion. They had served a term in the Elmira Reformatory under a joint judgment of conviction. Verno says that he was miles away from the scene of the shooting, and that the police induced him to name the defendant as the murderer. He admits that they did not put in his mouth any other part of his narrative. Yet he told a narrative beginning with the shooting of Rizzo, followed by that of Heaney, and followed finally by that of Teare, which in its succession of events is in accord with the testimony of conceded eye-witnesses. When asked to explain this correspondence, his only explanation is the incredible one that he made up these statements "out of his own head." Nellie De Carlo denies to-day that she knew anything about the murder. She tells a tale of abuse by the police which is contradicted by all the officers as well as by other witnesses, and on its face is incredible. She says, for illustration, that when taken to the office of the police commissioner she was placed in a chair which suddenly shot up to the ceiling, and she fell down bruised and sore. Her present story is that she did not even hear the ambulance. She did not know that any murder had happened till the following day. Yet her father and her brother, who were witnesses for the defendant on the trial, admitted *Page 182 that she was at the window when the ambulance arrived, though denying that she was awake at the moment of the murder. Sellitto, who now recants, testified on the trial that the murderer was the defendant. It seems to be undisputed that the defendant on the evening of the murder wore a light suit of clothes. When first questioned by the police, at a time when he does not claim that he was a victim of duress, Sellitto said that the murderer wore a light suit. Now he says that the suit was dark, and that the murderer was a man about forty years of age. I think we can give no credence to this belated attempt to bring into the case another man, older than the defendant and differently clad. It is now shown that on the night of the shooting the defendant disappeared, that he was in hiding for five or six weeks, and that he surrendered himself as the result of a treaty between his brother and the police. At the time of his flight no charge had yet been made against him. Flight, even after accusation, is some evidence of guilt; but flight before accusation is persuasive evidence. The flight is unexplained. No one has told us why this defendant, if he had nothing to do with the murder, fled and concealed himself before there was opportunity for a charge that he had anything to do with it. I cannot think of any explanation consistent with innocence.
There are many other incriminating circumstances. I make no attempt to marshal them. They have been analyzed in the opinion of my brother SEABURY, in which I fully concur. I am unable to say that the trial judge made a mistake when he held that he was dealing, not with an honest recantation, but with a criminal alliance to release a guilty man. I am, therefore, constrained to vote for the affirmance of the judgment.