Early on the morning of Sunday, September 13, 1936, Joseph Rosen was shot to death in a store kept by him at 725 Sutter avenue, Brooklyn. A jury have found *Page 231 that the homicide was the result of a conspiracy among the three defendants — Buchalter, Weiss and Capone — and that the crime was murder in the first degree.
Buchalter was said to have feared lest Rosen make complaint against him to the District Attorney of the county of New York. For that reason — as the People asserted — Buchalter had commanded Weiss to have Rosen done away with. There is evidence that Weiss killed Rosen with the aid of Capone, Harry Strauss, James Ferraco, Farvel Cohen, Paul Berger and Sholem Bernstein. Strauss, Ferraco and Cohen do not appear in this record either as parties defendant or as witnesses. Berger and Bernstein testified for the People.
(1) The testimony of Bernstein is all-important. He was the chief of the prosecution witnesses. Put into direct discourse, his story in substance was this: In the early afternoon of Friday, September 11, 1936, Strauss, who was then accompanied by Cohen and Capone, met me on a street in Brooklyn where Strauss told me to steal an automobile and find a drop [garage] for it. I did this on that same day. On the next day — Saturday September 12 — Capone pointed out Rosen's store to me as a place where someone was to be killed and then taught me a getaway route. Early the next day — Sunday, September 13 — I drove the stolen car to the vicinity of Rosen's store, as Weiss had told me to do. I saw Weiss, Strauss and Ferraco walk toward the store. I stayed behind the wheel of the stolen car with the motor running. I heard a lot of shots. Weiss, Strauss and Ferraco ran from the store into the car. I started on the route Capone had shown me. I drove to Van Sinderen and Livonia avenues where we abandoned the stolen car. Capone and Cohen met us there with other cars.
These judgments of conviction necessarily rest upon the finding that the above-stated recital by Bernstein was credible evidence. At his own word, Bernstein is a long-time professional criminal. As we shall see in a moment, he is a former perjurer who perversely and flagrantly lied again to the jury on this present trial. By the doubtful testimony of a witness of such low moral fibre, uncertainty concerning the guilt of the defendants is produced to such an extent as to render substantial and reversible an error of law which, under other circumstances, might be regarded as harmless. (People v *Page 232 Pignataro, 263 N.Y. 229. See People v. Cashin, 259 N.Y. 434.) From that point of view, we take up the exceptions of the defendants.
(2) In his testimony, Bernstein did not mention Buchalter. Two other witnesses for the People (Rubin and the accomplice Berger) swore that Buchalter had ordered Weiss to bring about the death of Rosen. Rubin and Berger fixed the time when that order was given as well along in the afternoon of Friday, September 11, 1936, after Rubin (as he said) had reported to Buchalter, "that I went to Murray Weinstein to do something for me about Joe Rosen and that Murray Weinstein said he can't do anything." On the other hand, Bernstein swore it was earlier in the afternoon of that day when Strauss had requested him to steal the murder car. As to this surface inconsistency in the proof of the People, the trial judge in his charge said to the jury: "There is not a particle of evidence in the case as to when, if at all, Buchalter communicated in reference to the preparation work. The case is blank on that. There is no way of knowing. We do not know whether he did so, or, if he did, whether it was in the morning or the afternoon or the evening; but you have the testimony of Bernstein about when he received the alleged instructions to steal a car and hire a drop, which was earlier in the day. Taken in connection with the other facts or alleged facts, concerning the alleged preparation work, and putting this and that together, you have a right to draw such inference as you see fit."
After the jury had retired, the judge recalled them and further charged upon the same subject in this manner: "The case is blind as to whether or not Buchalter communicated. There is no way we know. You cannot presume that he did and you cannot presume that he did not, but I will say that the argument of one of the counsel for the defense in attacking the time tables as told by Bernstein as inconsistent with Rubin's testimony and Berger's testimony, is predicated upon an assumption on his part that there was no communication by Buchalter until after Rubin returned and gave word that Weinstein could not do anything. I charge you this — and I think this is accurate and will hold and will not be error — that there is no such presumption, and you are not justified in so presuming. If there is no such presumption, of course, then the argument attacking the time table fails." *Page 233
Thus the last word of the judge withdrew from the jury a vital issue of fact and disposed of it in favor of the People as matter of law. This was obvious error. "What the evidence is" — also "what it proves — what credit a witness is entitled to, and all like things, are [in criminal cases] exclusively for the jury; and any charge is ill which takes this from them, or in any degree obstructs their free action thereon." (2 Bishop's New Criminal Procedure, [2d ed.], pp. 819, 820.)
(3) For more than a year prior to this trial, Bernstein had been kept in custody at a hotel as one of a group described by him as members of "the mob." The main contention of the defense was that Bernstein's testimony against the defendants had been there fabricated by this group in an endeavor to shift the incidence of the death penalty for the killing of Rosen. This contention went to the heart of the People's case. (People v.Becker, 210 N.Y. 274, 308, 309.) As an answer, Bernstein testified that during his confinement in the hotel he was under surveillance day and night by the police. Though that testimony was uncorroborated, the trial judge refused to let the jury pass upon its credibility. More than that, the judge certified to the trustworthiness of that testimony in this way: "You cannot lock criminals together when they are waiting their turn to be called to testify and let them put their heads together and maybe plot something behind the backs of the police. That would be sloppy police work, to permit discussion." The judge was without power so to invade the province of the jury.
(4) On cross-examination, Bernstein denied any letter had been written or sent by him while he was in custody at the hotel. Confronted then with three letters written in his own hand upon the hotel stationery, he owned he had lied. The quality of these documents is exhibited by the following excerpt: "Do you know how many guys are pinched just for conversation. Why do you make me write like this. I don't want to hurt you. Again I want to know did I do you any harm the way you are defying me. Well there is no sence of me trying to threaten you if you want it that away. So Cherry you are making me do this that I don't want all for $200 dollars. I just want to remind you years don't mean anything to me." (The emphasis was first hand.) *Page 234
The trial judge refused to receive these letters in evidence. Here again there is need to remember how the case for the People hangs on the credibility of Bernstein as a witness. Once more there is need also to keep in mind the theory of the People that at the hotel Bernstein was never free to concert with others in respect of his role upon this trial. In both aspects, these letters were proximately relevant evidence on the side of the defendants. We think the text thereof should have been put before the jury. (See People v. Becker, 210 N.Y. 274, 298.)
(5) After Rosen had been killed but before the trial of the present case, Bernstein was a prosecution witness on a trial held at Monticello, Sullivan county. On that trial, he tried to swear away the life of one Gangy Cohen who was there accused of another murder. As regards his former testimony in the Cohen case, Bernstein was examined on the present trial as follows: "Q. Did you testify in the trial of Gangy Cohen to anything that was not true? A. Yes, sir, I knew I was doing wrong. Q. Did you fail to testify to some things that were true? A. Yes, sir, I knew I was doing wrong. * * * Q. Were you asked these questions and did you give these answers? A. My mind is very clear. Go ahead. * * *`Question: And you had nothing to do with any murder on any occasion? Answer: That is right.' Q. Were you asked that question and did you give that answer? A. Yes, sir."
It was manifestly the duty of the trial judge to warn the jury specifically of the necessity for wariness on their part in consequence of this confession by Bernstein that where another life depended on his oath he had corruptly suppressed his participation in the murder here ascribed by him to two of these defendants. (Cf. Dunn v. People, 29 N.Y. 523.) The judge said: "The answer given to the question you have just read in the other trial could be viewed as being meant to be true if the witness considered it referred to the actual shooting. It would be untrue in relation to his being a principal under section 2 of the Penal Law, in the other work than killing." This animadversion was very much in the nature of a charge to the jury. (People v. Wood, 126 N.Y. 249, 269.) In our judgment, the exception taken thereto is valid.
(6) The sole support for Bernstein's accomplice-story against Capone was the People's witness Magoon. It was said by Magoon *Page 235 that Capone had made to him an oral utterance in these words: "I worked on the Rosen thing and it was right on Sutter Avenue and I was not made." In the declared opinion of the trial judge, the statement so reported by Magoon was "too indefinite" to be used as a confession of guilt on the part of Capone. At the same time, however, the judge directed the jury that Magoon's testimony (if credited) could be taken as corroborative evidence tending to connect Capone with the murder of Rosen. This was a controlling ruling. Belief in the actuality of Capone's oral admission as reported by Magoon was an indispensable condition of the finding of Capone's guilt. Hence the affirmance of these judgments of conviction must bespeak the conclusion of this court that the testimony of Magoon is not an altogether insufficient ground for the signing of the death warrant of Capone. (See People v.Crum, 272 N.Y. 348.) On this angle of the case we have felt — and still feel — no little concern.
A testimonial report of an oral admission of a party-litigant is generally the most dangerous evidence that can be received in a court of justice, and the most liable to abuse. (Law v.Merrills, 6 Wend. 268, 277.) Even when the admission is reported by a reputable witness, the testimony is often the weakest and most unsatisfactory of all the kinds of evidence. (See the authorities set forth in 7 Wigmore on Evidence, [3rd ed.] § 2094, p. 468.) Magoon was not a reputable witness. He is a self-confessed murderer. His appearance on the witness stand had no object but the saving of his own skin. There is thus grave question whether the above word of Magoon standing alone can in good conscience be accepted as a sufficient prop for what (as we are about to see) was a revision by Bernstein of his original evidence against Capone. For the purpose of this opinion only, we shall assume that the finding of Capone's guilt is not against the weight of the evidence; but we stress this phase of the record as a strong contradiction of any assertion of the conclusive quality of the proof for the People.
(7) On request of counsel for Capone, the trial judge said to the jury: "I will charge that unless they believe the testimony of Bernstein connecting Capone, that Capone must be acquitted." The gist of such connecting testimony was the ungarnished word *Page 236 of Bernstein that the getaway route over which he drove the murder car had been taught to him by Capone the day before the killing of Rosen.
During Bernstein's cross-examination on that critical issue, the trial judge made rulings as follows: "Mr. Rosenthal [Capone's counsel]: Q. You turned where on Pennsylvania Avenue, what turn left or right? A. Left. Q. How many blocks did you go then? A. One block, sir, to Dumont, made a right turn on Dumont. Q. And then you went straight down Dumont, didn't you? A. Yes, sir. Q. For six blocks? A. I don't know how many blocks. I went to Snediker Avenue, sir. Q. You knew Snediker Avenue — A. Yes, couldn't miss that because it was a one way street. Q. Will you please wait until I finish the question. You knew where Snediker Avenue lay from Pennsylvania, didn't you? Mr. Turkus [the trial prosecutor]: Objected to. Just answered it was a one way street * * * Mr. Rosenthal: Q. Did you know where Snediker Avenue lay from Pennsylvania Avenue, going down on Dumont Street? Mr.Turkus: Objected to as repetitious. Mr. Rosenthal: I have not asked it yet. The Court: Sustained. Mr. Rosenthal: Exception. * * * Q. Did you go slowly over the route? A. What do you mean slowly? I came from the store and the turns, that's where I had to watch myself, sir, them turns — the only thing I really had to know, sir, them turns. Q. As you were coming from the store, on this Saturday, did you slow up at each turn? A. Yes, sir. Louis Capone drove the car, sir. He drove my car all the time, sir. Q. Did he drive slowly over the route? Mr. Turkus: Objected to as repetitious. The Court: Sustained. Mr. Rosenthal: I respectfully except, sir. * * * Q. After you had come to a stop at Van Sinderen Avenue, was there any talk between you and Capone? A. While riding in the car, he told me, `watch' * * * He says, `This is the route you are going to take.' * * * Q. Is that all he said? A. Then he went over the route again and showed me, to make sure. Q. I first asked you is that all he said while you were at that point. Is that all he said? A. I didn't have a book and wrote down everything what he said to me, sir. Q. Is that all you remember he said? Mr. Turkus: Objected to as repetitious.The Court: Sustained. Mr. Rosenthal: Exception." *Page 237
We think these exceptions are not without merit. Mr. Wigmore says: "Repeating precisely the same allowable question oncross-examination, in order by sheer moral force to compel a witness to admit the truth, after an original false answer orrefusal to answer, is a process which not only savors of intimidation and browbeating, but also tends to waste time. * * * Nevertheless, when used sparingly and against a witness who in the cross-examiner's belief is falsifying, there ought to be no judicial interference * * *. Simple as this expedient seems, it rests on a sound psychology; and the annals of our trials demonstrate its power." (3 Wigmore on Evidence [3d ed.] § 782, p. 146. See, also, 1 Chamberlayne, The Modern Law of Evidence, § 553.)
The cogency of this view was here proved again when the testimony of Bernstein before the grand jury came to light. He had there sworn it was he — Bernstein — who drove the car in which he learned the getaway route. Faced with that self-contradiction, Bernstein said: "That is a mistake, sir. I made the mistake, sir." This was not the only particular in which Bernstein's evidence before the grand jury was at variance with his recital on this trial of the part played by Capone in the murder of Rosen. The case against Capone, we repeat, had no foundation other than the testimony of Bernstein to which the foregoing cross-examination was directed. No one can be sure the verdict against Capone was not the result of an undue restriction of his essential right so to test the credibility of that testimony.
(8) Early in his summation, the trial prosecutor posed these queries to the jury: "To begin with did anybody here tell you that Sholem Bernstein did not steal the murder car? Did anybody do that? Did anybody show you that he did not steal the plates? Did anybody say to you that he did not chauffeur the murder car when Rosen was killed?" Since none of the defendants was a witness, the whole point of that argumentation was its erroneous accent upon the assertion by them of their constitutional privilege against compulsory self-incrimination. In our judgment the exception taken thereto is valid. (See People v. Watson,216 N.Y. 565.)
As the opinion of the chief judge shows, the trial prosecutor in his summation gave to the jury an unfounded pledge as to the *Page 238 future of the accomplice witnesses. This pledge was buttressed by the trial prosecutor in these words: "Whatever my lot in life may be, whether I go out of office or stay in, whatever the future holds for me, I say to you with all due solemnity, that nothing I have ever learned as a public prosecutor, no talent that I now enjoy, would ever be used in any way with any of you to make you feel that I had discredited you or myself or any member of the public. And that is just for me alone. And one more thought — if I could spend the rest of my life fighting this type of situation, I would like it. And that ends it." When objection was made to this plea, the trial judge said: "We will have no further interruption." A majority of this court is gravely apprehensive that such diffuse departures from legitimate argument may have unduly prejudiced the jury against the defendants. (See People v. Mull, 167 N.Y. 247; State v. Clark, 114 Minn. 342.)
(9) Numerous exceptions to the charge of the trial judge are pressed upon us. For instance: The cross-examination of the People's witnesses concerning prior contradictory statements made by them was not ineffective, as we have seen. In that connection, the trial judge said to the jury: "Well, of course, if a man is asked whether he made an admission a long time ago, he may remember that, but to put a burden upon him of remembering the exact text of question and answer is an unholy thing."
Again: The trial judge said this to the jury: "There is nothing disreputable in a prosecuting attorney putting on the stand a witness who turns State's evidence. It is a proper method of prosecution and enforcement of the law. When rogues fall out it is a wise man's delight." Although the jury were brought back from their deliberations and advised to disregard the epigram last quoted from the charge, we are still left with the vexed question whether the belated admonition of the court sufficed to remove the obvious intimation which was conveyed to the jury by so pithy a dictum from the bench. (Cf. People v. Robinson,273 N.Y. 438.) But we pass the exceptions to these matters, because in any event the charge as a whole fell below the requisite standard.
The trial judge at least was bound generally to analyze the evidence in the case so as to present to the jury fairly the conflicting claims of the People and the defendants. (People v.Montesanto. *Page 239 236 N.Y. 396.) He expressly disavowed that duty. In defining the scope of his instructions to the jury, he said therein: "This is purely a segregation to guide you against misapplication of the evidence as against defendants to whom it does not apply. It is not a discussion of evidentiary values; it is not an expression of belief by the Court as to whether you shall accept such testimony as true. For that reason there is no review of cross-examination or of any of the evidence on the several defendants' side of the case."
In keeping with that announced purpose, the charge made no reference whatever to any one of the above-stated impeaching facts that were brought out during the cross-examination of witnesses for the People. That aspect of the case was dismissed by the judge in this fashion: "Cross-examination is almost impossible to correctly state in such a manner that two people will agree on its fairness because, while direct examination goes right to the point, cross-examination, being for the purpose of breaking down the direct, it is largely hit or miss; it is blank cartridge shooting. Once in a while you find that a bullet had hit, but whether there is a hit or not may be a matter of dispute. Unless there be an outstanding point come out on cross-examination, the Court would only tend to confuse and mislead the jury if it attempted to discuss it."
As an inevitable consequence of these conceptions of his function, the judge's treatment of the proofs took on the character of a summation for the People. We will not say such a charge was right. (See People v. Becker, 210 N.Y. 274, 307.)
(10) Nor do we think the one-sidedness thereof was corrected when counsel for the defendants requested further instructions in respect of specific items of the self-impeachment of witnesses for the People. In response thereto, the judge in some instances made this oblique remark to the jury: "You may consider that for what, if anything, it is worth." In other instances, the request brought forth a commentary which aided the People by toning down the contradictory statements of their witnesses. For example —
The main proof against Buchalter came from the witness Rubin whose testimony makes up a large part of "the facts" which Judge CONWAY has marshalled in his opinion. On cross-examination, Rubin was confronted with a statement made by him in December, *Page 240 1937, to Mr. McCarthy (then an assistant district attorney) covering this Rosen case. Conceding the verbal correctness thereof, Rubin acknowledged that this statement "did not implicate the defendant Buchalter, or Lepke, in any respect whatever."
When counsel for Buchalter requested that the jury be directed to take notice of Rubin's contradictory statement to Mr. McCarthy, the trial judge said: "On the second point of that request, he [Rubin] did not testify before McCarthy at all. He was not under oath. That is not perjury. That is a contradiction and he has explained it. He says he had been shot through the head because of testifying before the Dewey grand jury, and he was afraid to give McCarthy any information about the Rosen case. I charge the jury that they can consider the explanation in connection with the apparent evasion on that point before Mr. McCarthy. If it was on the basis of fear, they can consider the extent, if any, to which it ameliorates the contradiction and whether or not the contradiction, admittedly so before McCarthy, really amounts to anything at all. He was under no obligation to give any evidence; it was not sworn to before any official, so far as legal procedure is concerned; it was not compulsory." This argument in support of Rubin's credibility was inadmissible. Evidence of a prior self-contradiction by a witness, "is founded on the obvious consideration that both accounts cannot be true, and tends to prove a defect of intelligence or memory on the subject testified of, or what is worse, a want of moral honesty and regard to truth, and so, in either case, that the witness is less worthy of belief." (SHAW, C.J., in Commonwealth v.Starkweather, 10 Cush. [Mass.] 59, 60.) Hence the fact that Rubin had not sworn to his contradictory statement to Mr. McCarthy was immaterial. (3 Wigmore on Evidence, [3rd ed.] § 1044, p. 727.)
(11) Rubin's testimony was offered to show the alleged motive for this crime, — fear lest Rosen vent a business grievance by instigating a criminal prosecution of Buchalter. To the same end, members of the family of Rosen endeavored by their testimony to show his prominence in the commercial field in which Buchalter was active in labor affairs; but the trial judge struck out that testimony as being "too sketchy to have any value as evidence." As a result there was no contradiction of witnesses for Buchalter *Page 241 who testified to the indifference of Rosen's success as a man of business. In that state of the case, Buchalter at least was entitled to have the jury consider whether he was right in his claim of the absence of any compelling reason why he should have been greatly afraid of the enmity of so inconspicuous a person as Rosen. (See People v. Becker, 215 N.Y. 126, 135.)
On this issue, the trial judge in his charge said to the jury: "So far as the People's case is concerned, the furthest you can go in figuring out motive on Buchalter's part for wanting Rosen out of the way is that because of a business grudge carried by Rosen against Buchalter, having to do in some manner with the trucking company affairs in relation to the Pennsylvania business, and apparently blaming Buchalter for it, Buchalter feared that Rosen would reprise by giving information to Mr. Dewey which would get him, Buchalter, in trouble with the authorities." But the next phrase of the judge was this: "That is enough as motive evidence, if you find these facts to be established to your satisfaction, reasonably." The judge was without power so to deal with the effect of evidence as proving the case against Buchalter. At this point again, there should have been a presentation of both sides of the issue, — and the question of the weight of the evidence should in any event have been submitted to the jury.
In the preceding subdivision 2 of this opinion, we indicated another important issue of fact which was even more strongly ruled against Buchalter by the trial judge. On the whole, we find ourselves unable to perceive how the basic finding of Buchalter's distant connection with the actual shooting of Rosen can be taken to have been made by the jury alone.
(12) For a final word: We believe the foregoing combination of errors cannot rightly be looked upon as a technical defect. Of course this crime was an atrocious thing and the defendants apparently were men of past bad moral disposition. But these considerations are nothing to our purpose: it is for us to keep to the question whether the trial was fair. This last, as has so often been said, is the great requirement of this court's own function in all capital cases, — even when, as in this instance, the evil life of an accused may be an influence to warp the less responsible judgment of others. (People v. Marwig, 227 N.Y. 382,389.) *Page 242
Through many generations, common law practice in criminal cases has been governed by certain fundamental rules, namely: "The jury is the final arbiter of every question of fact." (People v.Pignataro, 263 N.Y. 229, 240.) "The court's charge is of supreme importance to the accused. It should be the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals." (People v. Odell, 230 N.Y. 481,487.) On the present trial this historic practice was virtually declared away. We do not see how the conviction of the defendants can be affirmed, without annulling the statute which makes the jury in a criminal case the exclusive judges of questions of fact. Nor do we see how an affirmance is possible without deciding that in a criminal case the trial judge in his charge may entirely ignore the evidence and the contentions of the accused unless in the end some request is made for a different handling of the issues.
Nor do we see how the inexpedient course of the trial can be said to have had no relation to the verdict. The challenged rulings necessarily strengthened the position of the People. With the sanction of the court, the trial prosecutor made his personal integrity a factor against the defendants. We do not feel at liberty to suppose all this was without significance in the jury room. "The determination of the facts rests wholly with the jury. It is for the court to instruct them as to the law, and these instructions they are bound to follow. If materially erroneous it is the imperative duty of the appellate tribunal to grant a new trial." (Stokes v. People, 53 N.Y. 164, 184.)
We believe the judgments of conviction should be reversed so that the defendants may have a fair chance to defend their lives before another jury.