Joseph Rosen was killed on September 13, 1936, in circumstances which leave little room for doubt that he was shot by a gang of criminals to promote the nefarious purposes of the gang. Almost four years later these defendants were indicted for the murder. The trial took place five years after the murder.
At the trial, witnesses, produced by the District Attorney, testified that they were members of a criminal combination, or gang, or, at least, had friendly and intimate relations with members of a criminal combination or gang which preyed upon the public and which without hesitation and without questioning obeyed the orders of its leaders. According to their testimony violence and murder were ordinary methods of carrying out their criminal purposes. Some of these witnesses, confessed members of this hideously criminal gang, testified that they actually took part in the murder of Rosen in 1936. Others testified that though they were members of the gang and had callously taken part in other murders, they had no criminal connection with the particular murder of which the defendants have been found guilty. Still others, though denying criminal connection with the gang, claimed, or at least admitted, intimate business and social relations with leaders of the gang. Witnesses who had no relations of any kind with the gang or its members, and whose credibility has not been impeached, showed the manner in which the killing was perpetrated and the circumstances surrounding it. Their testimony is not challenged, but it throws little, if any, light upon the identity of the killers, nor does it in any manner tend to connect the defendants with the crime or to corroborate the testimony of the witnesses who admit that they are professional criminals. The only testimony which might serve to cast upon these defendants even serious suspicion of complicity in the crime was given by witnesses who, as matter of law, were, according to their own admission, accomplices in this killing, or men who, according to their admissions were accomplices in other killings by the same gang or, at least, had intimate relations — guilty or otherwise — with its leaders.
The facts which the People claim were established by the testimony of these witnesses are exhaustively stated in the opinion of Judge CONWAY. It would serve no purpose to repeat them or, *Page 223 at this point, to analyze in detail their effect. I point out here only that in any discussion of the questions presented upon this appeal we should bear in mind that all the essential facts which, the People claim, demonstrate beyond reasonable doubt the guilt of these defendants are proven, if at all, only by the testimony of degraded criminals whose credibility is impeached, if not completely destroyed, by a cross-examination in which they admitted a callous disregard of every law, human and divine — including the provisions of both the penal law and of the divine commands against bearing false witness against their neighbors.
The jury is the arbiter of the credibility of the witnesses and of the weight of the evidence produced by the People. It must determine whether that evidence proves the guilt of an accused beyond a reasonable doubt. Whether that evidence is sufficient to overcome the presumption of innocence and to remove all reasonable doubt of guilt is, nonetheless, a question of law which this court may, in all cases, review (People v. Gluck,188 N.Y. 167), and when the judgment is one of death this court must also pass upon the question whether the verdict is against the weight of evidence and whether justice requires a new trial. (Code Crim. Proc., § 528.) "While no one doubts that in the great majority of cases the character and credibility of witnesses and the believability of testimony should be left to the final determination of a jury, yet the fact that the statute imposes upon us the absolute duty of deciding whether a verdict in a murder case is against the weight of evidence would seem to make it equally plain that the law contemplates the possibility that a jury may be swayed or led into giving an unjust and unwarranted verdict and requires us to correct the error when it does occur." (People v. Becker, 210 N.Y. 274, 289.)
An accused, however degraded, is entitled to a fair trial before an impartial jury to whom all competent and material evidence relevant to the charge has been presented and from whom all irrelevant evidence, tending to prejudice them against the defendant, has been withheld. The accused is entitled to demand that the issues of fact be submitted to the jury in a charge which correctly defines the questions upon which the jury is the arbiter and the rules of law which bind the jury and which is calculated to assist the *Page 224 jury in its deliberations. These are fundamental rights of all accused, guaranteed by the Constitution and part of the freedom which this country is now desperately fighting to maintain. To the extent that the trial court errs either in its rulings or in its charge or fails to safeguard the rights of the accused to a fair trial or intrudes upon the field reserved to the jury and withdraws from the jury questions upon which the jury is the sole arbiter, the verdict of the jury is tainted and is not a conclusive finding of guilt.
We are admonished by the Legislature to disregard technical errors or defects or exceptions which do not affect the substantial rights of the parties. All of us heed that admonition and recognize wholeheartedly its wisdom. Sometimes, perhaps, we need more an admonition to remember that it is the jury, not the court, which weighs the guilt or innocence of the accused, and that errors or defects which taint the finding of guilt by a jury indubitably affect the substantial rights of the accused even though the judges of an appellate court may be of the opinion that guilt has been clearly established. The trial of the defendants has been long. They have been zealously — even hotly — accused by an experienced prosecutor, and they have been zealously — even hotly — defended by experienced counsel. Sometimes zeal greatly exceeded discretion. In such a trial it is not easy for the presiding judge to maintain decorum and to rule correctly at all times. Some lapses and errors are almost inevitable and some indiscretions of speech or conduct, though regrettable, are entirely venial. It is not the duty or function of this court to pardon or to censure; it is its duty to determine whether errors or defects, if any, have tainted the jury's verdict and may have deprived the accused of his right to a judgment of a jury of his peers, arrived at after a fair trial conducted in accordance with the law. After the court has determined that errors or defects are present, it must appraise their effect in their setting at the trial.
Errors and defects must be viewed and weighed as an incident of the trial and in relation to all the other incidents of the trial including all the rulings of the trial court. In weighing them the judges of the appellate court must, so far as they can, form a picture of the whole trial. They must endeavor to see that picture as the jurors saw it. Errors which loom large to a judge, learned in the *Page 225 law and trained to administer justice in strict accordance with the law, may be scarcely visible to the lay juror. On the other hand, some errors or defects, and perhaps especially those due to excess of zeal of court or prosecuting attorney, may be too easily disregarded by an appellate judge who knows from experience the difficulty of restraining speech and ruling correctly on all questions of law in the heat and hurry of a criminal trial.
The possible effect of error or defect upon the substantial rights of a defendant cannot be measured by any rule of thumb — determination there depends upon the judgment of each appellate judge, and often there is room for difference of opinion.
The errors and defects in this case are, it seems clear to me, many. Judge LOUGHRAN has set forth some which in his opinion cannot be disregarded. I agree with him that these errors and defects are present and these errors and defects and others shown by the record cannot be disregarded without hesitation lest in our anxiety that the guilty should not escape punishment we affirm a judgment, tainted with errors and obtained through violation of fundamental rights. Only careful, I might almost say prayerful, consideration can remove that hesitation.
Upon such consideration I have found it impossible to accept the contention that the record presents few, if any, errors, and that any errors or defects that might conceivably be found should be disregarded as trifles, when weighed in the balance against the mass of evidence produced to establish the defendants' guilt though that evidence comes from a polluted source. With characteristic self-restraint, Judge LOUGHRAN has understated the fact that the proof against the defendants comes from the lips of witnesses of such "low, moral fibre" that "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." I shall refer briefly to that "uncertainty" hereafter. I content myself now with the statement that even if the proof were far stronger it would still remain true that "the question of substantial right is not the abstract question of guilt or innocence. A guilty man is entitled to a fair trial and a trial is not fair if the verdict may be related to errors in the judge's charge. Error is substantial when *Page 226 we can say that it tended to influence the verdict." (People v.Sobieskoda, 235 N.Y. 411, 420; opinion by POUND, J.) On the other hand, after consideration of the record I feel constrained to appraise the effect of the errors committed at the trial differently from Judge LOUGHRAN, and I shall state as briefly as I can the reasons for my conclusions.
I take up first the failure of the trial judge to analyze the evidence so as to present to the jury fairly the conflicting claims of the People and the defendants, and the complete omission by the trial judge of any "review of cross-examination or of any of the evidence on the several defendants' side of the case." The issue of the guilt of the defendants depends, as I have already indicated, almost entirely upon the credibility of the witnesses of the People. If Bernstein, Berger and Rubin honestly tried to tell the truth there could be no doubt of the guilt of Buchalter and Weiss and perhaps no substantial doubt of the guilt of Capone. I do not think that it is possible that the jury was misled into the belief that any substantial question was involved other than the credibility of these witnesses. True the defendant Weiss produced some witnesses to sustain his claimed alibi, but it is impossible, I think, to read this long record without reaching the conclusion that the jury undoubtedly understood that, in final analysis, the vital question which they were called upon to decide was whether the People's witnesses were truthfully fastening upon these defendants a guilty share in the murder of Rosen, or whether they were testifying falsely for the purpose of avoiding, in whole or in part, the penalty which they richly deserved for their own participation in that murder or in other murders. Some of the judges of this court may think that in the exercise of a wise discretion the trial judge should have pointed out to the jury those considerations which might tend to justify reliance upon the testimony of confessedly degraded witnesses, and those considerations which might lead to the conclusion that there is no truth in such witnesses. It is the function and duty of the trial judge to explain to the jury the questions of fact which the jury must decide and the rules of law which the jury must accept and apply. He must be accorded a broad discretion in the selection of testimony which might support the contentions advanced by the parties and also in the emphasis he *Page 227 should place in his charge upon the contentions of either party in order to make the issues clear to the jury so that it may not be misled after a long trial. A charge which refers to the evidence produced and the arguments advanced by one side alone may tend to mislead the jury into the belief that little can be said for the other side. That would at times constitute an abuse of discretion so serious as to require a new trial in a capital case. I do not find that in this case the failure of the trial judge to review the cross-examination of the People's witnesses, or to review the evidence produced by the defendants could have such effect.
Argument not without weight might, indeed, be made that any attempt to present in the charge a statement or summary of the testimony of the witnesses produced by the defendants would inevitably disclose the lack of substance of such testimony. Nor is it clear that any review of the cross-examination of the People's witnesses though the cross-examination showed clearly the weakness of the testimony of these witnesses would have been helpful to the defendants. The cross-examination of the important witnesses continued for days and no summary could be entirely satisfactory. The omission, even so, would be serious if in contrast the trial judge in his charge has referred to the claims of the People, and the evidence produced by the People in manner which would tend to impress upon the jury the strength of the People's case. I do not find in the charge such contrast. The trial judge was bound to refer to evidence of the People tending to show an admission of guilt or, at least, consciousness of guilt upon the part of individual defendants, in order to warn the jury that such evidence could not be considered against the other defendants. He attempted little more. At the same time, the trial judge explained why he did not review the cross-examination of the People's witnesses or refer to testimony which might be favorable to the defendants. I might wish that the charge had been different. I have concluded nevertheless, that the defect here, if any, could not have misled the jury and does not affect the substantial rights of the defendants.
There are some errors and defects which cause me far more concern. As Judge LOUGHRAN has, in my opinion, completely demonstrated, the trial judge erred at times in ruling on evidence *Page 228 and at times usurped the function of the jury to draw inferences from the evidence and to determine the facts. I shall refer in this opinion only to those errors and defects which are perhaps the most serious. (1) The exclusion by the trial judge of the letter which the witness Bernstein wrote while in custody with other witnesses, and (2) the charge of the trial judge concerning the "argument attacking the time-table fable." Though I do not refer to each of the other errors and defects set forth in Judge LOUGHRAN's opinion because I consider them less serious, they are not to be cast aside completely. As Judge LOUGHRAN has pointed out, the ultimate question which we must decide is not whether any error or defect standing alone be sufficient to justify the conclusion that it affected a substantial right of the defendant, but rather whether the cumulative effect of the combination of errors and defects resulted in depriving the defendants of a fair trial.
An inordinately long trial was followed by long summation of counsel and the prosecuting attorney had the last word. The District Attorney admitted in his summation that the principal witnesses for the People were men of evil character and counsel for the defense did not attempt to picture the defendants as honest, law abiding citizens. The accusing witnesses and the defendants were, as I have said, members of a gang or, at least, had close relations with leaders of a gang engaged in criminal practices nefarious even beyond the imagination of any fiction writer unless he had the genius of a Balzac. Counsel for the defense, of course, did not fail to point out to the jury that the witnesses for the People were, on their own admission, at least as bad as the defendants on trial and that the jury might infer that the reward offered to them for testifying as they did was a promise that they would escape the penalty for their admitted crimes. The prosecuting attorney was justified in attempting to argue in answer that such criminal gangs cannot be destroyed unless through fear of punishment and hope to escape extreme punishment, some members of the gang could be induced to confess in order to save their own worthless lives and to give testimony against other members of the gang. It is difficult, however, to justify the statement of the District Attorney in his summation: "Don't let anybody fool you with Christmas present nonsense. Gentlemen, the courts have confidence in the *Page 229 integrity and common sense of juries and jurors. Have a little faith in the integrity of the courts and the prosecutor as to what will happen to witnesses. Right now they are too valuable pieces of bric-a-brac to be dealt with as Lepke, Weiss and Capone would want." In those words there is implicit a promise which the prosecuting attorney could not properly or truthfully make that in due time the witnesses would receive their just deserts.
Conscious as I am that there can be no certainty of the guilt of these defendants since the credibility of the witnesses against them is so seriously impeached, and recognizing as I do that errors and defects at the trial are many, I still reach the conclusion that the verdict of the jury was not influenced by these errors and defects and should not be set aside because of them. The rulings of the trial judge in the admission and exclusion of evidence may have kept from the jury some evidence which would demonstrate the evil character of the witnesses, but the evil character of the witnesses was so clearly demonstrated by other evidence that additional impeachment could, I think, have had no possible effect upon the jury. Nor could any ruling or statement of the trial judge in regard to the bad character of the defendants make the jury more certain of the evil character of the defendants, for that had been overwhelmingly proven by other evidence. The verdict of the jury rests, it is plain, on its conclusion that the story of the People's witnesses is credible and furnishes proof of the defendants' guilt beyond a reasonable doubt, in spite of the pollution of the source of the proof. Explanation for that conclusion may be found in testimony which is not seriously challenged concerning the previous relations of these defendants with the members of the gang and, in the case of Buchalter, to a lesser degree with the murdered man. That testimony is far from sufficient to prove the defendants' guilt. It does not even tend to connect the defendants with the crime, but it is a circumstance which fits into the picture of the crime as drawn by these witnesses whose credibility has been irretrievably impeached. It justifies at least strong suspicion and jurors, quite naturally, are more prone to base a finding upon evidence otherwise lacking in force, but which tends to support a strong suspicion than are judges trained to decide questions of *Page 230 fact solely upon competent and relevant evidence. The jury has appraised the evidence and in my opinion it cannot reasonably be said that any ruling of the trial judge which is challenged on this appeal may have affected that appraisal.
True, as I have said earlier, the court in the charge instructed the jury as matter of law upon some questions of fact which only the jury had the right to determine, and I may add parenthetically that I doubt whether I would agree with the inferences drawn by the trial judge even if he had been the trier of the facts. I recognize that no intrusion by the trial judge upon the field reserved for the jury may be lightly disregarded. Even so, I conclude that in this case the errors viewed as part of a long trial could not have affected the verdict. It is difficult, perhaps impossible to avoid all error upon such a trial, but the vital question involved was so plain and the meaning of the challenged parts of the charge so obscure that I cannot believe that the jury was misled. It has found the defendants guilty, and though I might have been unwilling, if I had been a member of the jury, to concur in the verdict, I cannot as a judge say that the verdict is against the weight of the evidence.
I cannot refrain from repeating in conclusion that I find the errors and defects numerous and I have hesitated long in reaching the conclusion that they may be disregarded, especially since three of my associates are convinced and have argued persuasively that they affect the substantial rights of the defendants. I regret many incidents that occurred at the trial. I regret the summation of the prosecuting attorney and his remarks in the course of the trial. I regret some of the rulings of the trial judge. Evidence coming from a polluted source has failed to remove reasonable doubt of the defendants' guilt from my mind. All that is immaterial, if the jury is convinced of guilt on sufficient evidence and no errors and defects affected the verdict. Even if I were entirely convinced of the defendants' guilt I should vote to reverse if I found room for doubt that the jury would have reached the same conclusion if all error had been avoided. Because I have no doubt that the errors did not affect the verdict I am constrained to vote to affirm.