The conviction in this case should be reversed. Errors have been committed in my judgment which should not be disregarded under section 542 of the Code of Criminal Procedure.
On November 15, 1918, Friday night, a young girl named Margaret Morton was murdered in the lot at *Page 122 One Hundred and Fifty-third street and Gerard avenue, Bronx county in the city of New York. Two young men named Theodore Dixon and Henry Scott killed her. Scott hit her on the head with a rock, Dixon tied her hands behind her back while Scott strangled her to death with a cord. Her body was discovered Saturday afternoon covered with dirt and with a rock on her head. Dixon was found guilty and his sentence commuted to life imprisonment. A plea of manslaughter was taken from Scott, apparently because he turned state's evidence. This defendant, Hattie Dixon, the mother of Theodore Dixon, took no part in the direct act of killing. She was miles away from the scene of the homicide. Her participation in the occurrence is made out solely by the story of Scott whose life has been spared.
Margaret Morton was about seventeen years of age and had lived for some time with Hattie Dixon and her son at 20 West One Hundred and Thirty-seventh street in the borough of Manhattan. At her own instigation Margaret had insured her life for $500, naming Hattie Dixon as the beneficiary. Scott testified that Hattie Dixon asked him to kill Margaret Morton so that she, Mrs. Dixon, could get the insurance money. She promised him out of it $100. Scott says that this defendant gave him the cord and told him to take Margaret over the bridge into the Bronx lots, hit her on the head with a rock and strangle her.
The claim of the prosecution is that Dixon and Scott, the actual murderers, were carrying out the instructions of this woman.
Section 399 of the Code of Criminal Procedure provides that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.
There was evidence given in the case in the nature of corroboration every bit of which, standing alone and *Page 123 apart, was free from any evil construction or criminal purpose. A man named Kruse testified that on Friday night, the night of the murder, he saw the defendant hand Scott $5 on the street in front of a moving picture place. The insurance agent who collected weekly the premiums on the policy says that when he called for the money the week after the killing Mrs. Dixon told him that Margaret was dead and asked about the collection of the principal.
Other witnesses gave evidence that on Friday night and on Saturday afternoon Mrs. Dixon was searching the neighborhood for Margaret and inquiring about her. But the most important piece of corroborating testimony consisted of statements made on Sunday, the 17th, to Edward Williams, and on Monday, the 18th, to Amelia Waters. To these persons the defendant stated that Margaret had been found in the Bronx and had been hit on the head with a stone.
Scott testified that on Friday night after the killing he told Hattie Dixon, when she gave him the $5 that he had killed Margaret and hit her on the head with a stone, choked her with the cord while Dixon tied her hands behind her back.
The point of the corroboration pressed by the People upon the jury in the summing up was that Mrs. Dixon could not have known on this Sunday or Monday that Margaret was hit on the head with a stone, except from the information given her by Scott. This was very important. It was a piece of corroboration which, if true, indicated criminal knowledge, as Mrs. Dixon, on Saturday afternoon, was hunting for Margaret among the neighbors. The explanation of how this knowledge was obtained is very simple. After Margaret's body was found on Saturday afternoon, November 16th, the police officers called on Hattie Dixon to go with them to the morgue to identify the body. She was taken after six o'clock Saturday evening to the Forty-ninth precinct *Page 124 where she was notified that Margaret was dead. She testified that the man behind the desk in the station house informed her how she was found, that she was found with a rope around her neck, hands tied behind her, laying face down with a rock on her head.
There is no dispute in the case but that Margaret was thus found. Officers Riegelman and Carmody, who first saw the body in the lot, found a piece of rock about as big as your fist, weighing about eight pounds, on the girl's head, and she was photographed with the rock on her head.
This testimony of Mrs. Dixon is not contradicted. Officer Armstrong testified that on Saturday evening in the station house Hattie Dixon was notified by the officer of Margaret's death. Neither the man behind the desk nor any of the officers who were in the station house on that night and who were in the court room at the trial contradicted Hattie Dixon's testimony that the man behind the desk told her how Margaret was found and that a rock was on her head.
I find nothing in the record to sustain the claim that on the following Sunday and Monday when Hattie Dixon told her friends that Margaret had been hit on the head with a rock she must have acquired that information from Scott on Friday night and could not have acquired it at the station house Saturday night.
The importance of this claimed corroboration is flashed upon us by the jury which had much hesitancy in convicting.
After being out two hours the jury returned with questions bearing upon this incident of the conversations. The third juror asked this question: "Is there any evidence that Mrs. Dixon was told up at the police station on Saturday that the girl had been hit on the head with a stone?"
The court referred the jury to the testimony of Detective Armstrong and read from his own minutes. *Page 125 He told the jury that in the detective bureau she was informed that Margaret was dead. "That's all."
The judge said: "That is all my minutes show."
The defendant's lawyer thereupon made this statement:
"Mr. Smith: If your Honor please, my understanding is that the juror asked whether there was anything to contradict the testimony of Hattie Dixon to the effect that the man behind the desk in the police station told her that the girl had been found with the rope around her neck and a stone on her head or something to that effect or whatever it was and I understand that to be what the jury is asking.
"The Court: Well, I don't remember any such testimony. If there was any such testimony and you invite my attention to it I will have it read.
"Mr. Smith: Yes, sir, I can invite your attention to that.
"The Court: Before I get to that I am going to adopt the suggestion of Assistant District Attorney McLaughlin with reference to the testimony of Captain Wines."
Captain Wines' testimony was given and the court sent back the jury without making any reference whatever to the testimony of the defendant or permitting her counsel to read it after the court had invited him to do so. Smith was the defendant's lawyer. He said, as will be noted, that the testimony of Hattie Dixon was to the effect as above given.
The court dismissed it with the statement that he recollected no such testimony. In fact he went further and told the jury that his minutes showed that the defendant was simply told in the station house that the girl was dead — "that's all."
In response, therefore, to the question of the third juror, the court instructed the jury that there was no testimony that the defendant was told in the station house Saturday night that the girl had been hit on the head with a rock or was found with a rock on her head. And *Page 126 this in the face of testimony given by the defendant uncontradicted by the police officers listening to her testify.
It must be remembered that Hattie Dixon was not in the station house Saturday night as a prisoner. That was the evening of November 16th, and she was not arrested until November 21st. She was there to identify the body and was taken from the station house that evening to the morgue and after that sent home. Why should the officers refrain from telling her the condition in which the girl had been found when everybody connected with the case knew it and a photograph had even been taken with the rock on the girl's head?
When a jury is seeking light and is kept in the dark upon the most critical point in the case, it cannot, to my mind, be said that a harmless error has been committed and the defendant not prejudiced.
There is another error in this case, which might not be fatal but for the nature of the prosecution, resting as it does almost entirely upon the testimony of an accomplice. In summing up the zealous prosecutor said to the jury: "You won't expect a woman of that type to confess. You would expect two young fellows, just as I said before, over the borderline from boyhood into youth to confess, and they did, gentlemen, and they did tell the story that this defendant was the one who instigated the crime in this case." No such evidence appeared in the case; it would have been incompetent and reversible error if it had. The impropriety of the district attorney stating that one of the murderers, not a witness, had confessed that this defendant was the one who instigated the crime needs no comment. We have heretofore ruled upon such statements. (People v. Esposito, 224 N.Y. 370.)
The judge should have left no doubt in the minds of the jury that such a remark was highly improper and that they should disregard it. The young counsel for the defendant moved to strike out the reference to Dixon *Page 127 altogether and the court said, "Very well, it is so ordered," remarking that he thought it safer to confine the summing up to what Scott had said in the case. In a civil case when testimony is stricken out the court frequently impresses upon the jury their duty to disregard it. How much more important such an instruction becomes in a case of murder in the first degree, whether requested or not. When death may be the result of a verdict it is the duty of a court to see that none but proper evidence is received irrespective of objection and that the usual forms and procedure are adhered to. Minor departures there must be in long and exhausting trials, but serious lapses should not be overlooked. Striking out testimony is a frequent occurrence. I never before heard of striking out a summing up. I appreciate what was meant by the learned judge, but the question is, did the jury?
By insisting that these two errors require a reversal of this judgment I feel confident that I am adhering to the traditions of this court. A New York bank president was once charged with stealing depositors' money. He was readily convicted. Because the entire panel of jurors including the twelve men in the box had been drawn one hour before the time ordered, the conviction was reversed. Neither the defendant nor his counsel were shown to have been present at the hour properly set for the drawing, but the error was presumed harmful. (People v. Damron, 212 N.Y. 256,263.)
Hattie Dixon, a colored woman porter on the subway, is now under sentence of death. The harm done by the error referred to on her trial need not be presumed; it can be seen and felt. It is no answer to say that upon the record she was clearly guilty; the jurors have not found it so easy to declare. The jury upon the first trial disagreed, and the present jury, after coming back for the instructions above stated, took eight hours to arrive at a verdict.
By reason of these rulings to which I have referred, *Page 128 emphasized in a case resting almost entirely upon the testimony of a self-confessed murderer, I feel that the defendant should be granted a new trial.
The conviction should be reversed.