I dissent from the decision about to be made which rests upon the conclusion that the defendant's rights were prejudiced by the admission of evidence adduced from certain non-accomplice witnesses and received in support of the credibility of three accomplices.
No one doubts the wisdom of the statute (Code Crim. Proc. § 389) which casts upon the prosecution in a criminal trial the burden of proving the guilt of an accused beyond a reasonable doubt. We know, however, that burden to be immeasurably increased when, as in the present case, the state's proof of the defendant's guilt comes from the lips of accomplices who blatantly admit before a jury their complicity in organized crime. Truth does not come naturally from sources so polluted. Credence may, however, be induced by corroborating facts.
In this case the question upon which the court divides is whether, in his effort to dispel reasonable doubt as to the defendant's guilt, the District Attorney was rightly permitted to support the credibility of three accomplices by evidence from certain non-accomplice witnesses. Their testimony is now challenged because, it is said, it was of slight, remote or conjectural significance in respect of the general credibility of the accomplices; that it had an inherent and inevitable tendency unnecessarily to complicate the case and unfairly to surprise the defendant. In my opinion the challenge is without merit in any of the particulars mentioned.
The point in controversy requires a statement of only those portions of the evidence which relate themselves to the challenged testimony of the non-accomplice witnesses. *Page 195
Albert Shuman met his death during the night of January 9, 1939. At an early hour of the following morning his lifeless body was found in a slumped position on the front seat of a black Buick sedan which bore 1938 New York license plates No. 9K 1131 and was parked on East Ninety-fifth street in the borough of Brooklyn. The discovery was made by Police Officers Reardon and Eifler, whose testimony, with that of other non-accomplice witnesses, is presently to be considered. Two bullet holes — wounds of entrance — were in the back of the victim's neck, around each of which was a well-defined powder mark which, according to the undisputed expert testimony, had been produced by a gun held at a distance of only three inches. For this homicide the defendant has been convicted of first degree murder.
Among witnesses called by the prosecution were three accomplices — Abraham Reles, Albert Tannenbaum and Seymour Magoon. It is a mild statement of facts made clear by the record to say that Reles is a hardened criminal and that the records of Tannenbaum and Magoon in crime had not escaped reproach by the law. In other words, their admissions of participation in prior crimes was a warning to the jury that caution should be used in valuing their testimony. (People v. Cohen, 223 N.Y. 406,422.) It is from testimony by these three accomplices that the District Attorney brought out the sordid details of a carefully laid plan which had for its sole object the death of Albert Shuman.
It should be said at this point that upon this appeal the defendant does not assert a failure by the prosecution to corroborate the three accomplices Reles, Tannenbaum and Magoon, by other independent evidence required by section 399 of the Code of Criminal Procedure — evidence which "tends to connect the defendant with the commission of the crime." The defendant does contend, however, and this court is about to hold that the trial court erroneously permitted facts prejudicial to his rights to be brought into the record by the testimony of non-accomplice witnesses *Page 196 as to which the court ruled: "* * * those facts * * * are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness [an accomplice] as to whether or not he is telling the truth * * *."
From testimony adduced by the District Attorney from the three accomplices it appears that some time in the late months of 1938 the decedent Shuman had been seen coming from police headquarters in Brooklyn where, it was said, he had been giving information to Inspector McDermott concerning Louie Lepke Buchalter, allegedly a notorious underworld character, commonly known as "Lepke," who was then "hiding out" in an apartment on Foster avenue in Brooklyn. When Reles learned that Shuman had conferred with Inspector McDermott he visited Lepke at the latter's apartment and told him of that fact. On that occasion and on subsequent visits by Reles to Lepke's "hide-out" there was present in the apartment the People's witness Dorothy Walker. When Lepke was told of Shuman's conduct he said to Reles: "If he [Shuman] is giving information against me, go out and take him." Thereupon a plan to kill Shuman quickly took form. It involved a ruse in which defendant Nitzberg was assigned an important role and by means of which the victim was to be lured into the entrance hallway of an apartment house on Lincoln Place between Rochester and Buffalo avenues in the borough of Brooklyn, where he would be shot. That plan was changed, however, when Reles reported to his fellow conspirators that "The spot which we picked out is no good, because right around the corner there is a motor-cycle copat all times, and after they kill Shuman in the hallway they are liable to walk right into the cop's arms." This suggestion caused the abandonment of the original choice of the place where the planned murder would be committed and the adoption of a new proposal by Reles that Shuman should be lured into an automobile in which he would be driven through Buffalo avenue, Eastern parkway and Rockaway avenue to a point beyond Bethel Hospital *Page 197 where Shuman would be shot while he was seated in the car.
The plan thus changed was carried through with smooth precision on the night of January 9, 1939. Upon the pretext that they were taking him to an apartment where he was to participate with them in a robbery, the defendant and another enticed Shuman into a black Buick sedan which, according to testimony by Reles and Magoon, was a stolen car previously secured by them and turned over to the defendant to be used in carrying out the plan. The victim met his death while he was seated on the front seat of the black sedan to the right of Tannenbaum who had been assigned to drive the car. The shooting had been assigned to, and was carried out by the defendant Nitzberg, who was seated alone in the rear of the car behind his victim's back.
From this abbreviated recital of testimony given to the jury by the three accomplices I pass to a consideration of testimony by the non-accomplice witnesses. Police Inspector McDermott, who, according to the accomplice Reles, was visited by Shuman in the late months of 1938, testified that in the fall of 1938, while he was in command of the detective force in the borough of Brooklyn, Shuman came to his office on three occasions. Dorothy Walker, who, according to Reles, was present in the Lepke "hide-out" when he called there and advised Lepke that Shuman had been calling upon Inspector McDermott, testified that she was present in the Lepke apartment on that occasion and on later days when Reles called. Police Officers Reardon and Eifler testified that in the early morning of January 10, 1939, they discovered, on East Ninety-fifth street in Brooklyn, the body of Albert Shuman in a black Buick sedan bearing New York license number 9K 1131. They described in detail the car, the position of the body, the wounds and powder marks. Moskowitz, the keeper of the public garage in which had been stored by the state's witness Breitman the black Buick sedan in which the body of the deceased was found, testified that the car was stolen *Page 198 from his garage on the night of September 8, 1938. Breitman, the owner of the black Buick sedan, testified that when the car was stolen from the Moskowitz garage on September 8, 1938, it bore his own New York license plates No. 10P 92. Freundlich testified that New York 1938 license plates No. 9K 1131 (the license plates found on the black Buick sedan when it was discovered by Officers Reardon and Eifler on the morning of January 10, 1939) were stolen from his Chevrolet automobile on the night of December 7, 1938, while it was parked in front of his Brooklyn residence. Bang, a motorcycle policeman, testified that during the month of January, 1939, he was on patrol duty at the intersection of Eastern parkway and Buffalo avenue near the site where (according to Reles) it was first planned to commit the murder. It will be remembered that Reles testified that it was he who advised a change in the proposed site for the killing "* * * because right around the corner there is a motor-cycle cop at all times * * *."
I find nothing in the testimony of these non-accomplice witnesses which prejudiced the rights of the defendant. Although the testimony had reference to minor details in the succession of events related by Reles and the other two accomplices, it served in each instance to confirm and give credence to their narrative the source of which, when uncorroborated, did not inspire belief in its truthfulness. (2 Bishop, New Criminal Procedure [2d ed.], p. 998; 7 Wigmore on Evidence [3d ed.], § 2059.) The material matters upon which the credibility of an accomplice may be supported are not "as to the place of his birth, his age, his residence, but the detail of the crime and matters connectedwith it." (Emphasis supplied.) (Linsday v. People, 63 N.Y. 143,158.) Of the testimony by the non-accomplice witnesses it may be said here as this court ruled in People v. Reddy (261 N.Y. 479, at p. 486), "All that it does and all that can be claimed for it, is to give support to some of the facts — and those not the most essential — testified to by [the accomplice] * * * on the basis of which the truth of [the accomplice's] accusation against the defendant might be conjectured. *Page 199 * * * While this testimony was relevant and was corroborative of certain circumstances relating to the crime, it had no tendency, as we think, to connect the defendant with its commission." (Emphasis supplied.) That was precisely the basis of the ruling of the trial judge in the present case, "I * * * charge, that those facts [to which the non-accomplice witnesses mentioned above had testified] which you have just stated are not intended to connect the defendant with the commission of the crime, but they are intended to corroborate the witness as to whether or not he is telling the truth * * *."
From earliest times there has been a natural distrust of the testimony of an accomplice. Prior to the enactment of section 399 of the Code of Criminal Procedure (L. 1881, ch. 442, as amd. L. 1882, ch. 360) a conviction could be had upon the uncorroborated testimony of an accomplice alone. (People v. Everhardt,104 N.Y. 591, 594; People v. Mayhew, 150 N.Y. 346, 353.) But the trial court, as a rule of practice and not of law, was accustomed to warn the jury that a conviction on uncorroborated testimony of the accomplice would not be justified. (People v. Dixon,231 N.Y. 111, 116, and see 7 Wigmore on Evidence [3d ed.], § 2056.) The kind of evidence held to be sufficient as corroboration was merely such evidence as tended to establish the credibility of the accomplice on some material point in his narrative. (Linsday v. People, supra, pp. 157-159.)
The enactment of section 399 of the Code of Criminal Procedure established no exclusive test for the admissibility of corroborative evidence. Such evidence as was formerly admissible might still be received, but it was no longer sufficient. (Cf.People v. Goldstein, 285 N.Y. 376, 382.) Under the new section there may be no conviction upon the testimony of the accomplice, corroborated merely for the purpose of proving credibility, in the absence of corroborative independent evidence tending to connect the defendant with the commission of the crime. In effect we are now asked by the appellant to rule that the enactment of section 399 of the Code of Criminal Procedure *Page 200 established not only an exclusive rule for the admission of evidence to corroborate the testimony of an accomplice, but also served to render useless and confusing to a jury that type of evidence which for over a hundred years was accepted by courts throughout this country and in England as sufficient to corroborate an accomplice and justify a conviction. (See 7 Wigmore on Evidence [3d ed.], § 2059.)
To say, as do a majority of the court, that the testimony given by the non-accomplice witnesses was "of merely slight, remote or conjectural significance" in respect of the general credibility of the accomplices, is not, as I view it, a correct appraisal of its value. More appropriate, I think, is the statement by Chief Baron Joy in his Evidence of Accomplices, "The correct and accurate manner in which an accomplice details the circumstances of the transactions shows that he was cool and collected, that he possessed observation, that his recollection is fresh, and that he was an observer, not an inventor of facts and incidents; and if we find that in every point in which the evidence of other witnesses can be brought into contact with his, they fit into one another and correspond exactly, it is good ground for presuming that his entire narrative is correct." (The Law Library [Wharton], 3d Series, vol. 45, appendix, p. 10.)
Nor does the testimony of the non-accomplice witnesses "inevitably" tend "unnecessarily to confuse the real issues and unfairly to surprise the defendant to his prejudice." I find nothing in the record of the trial — which lasted ten days, during which sixteen witnesses were called by the defendant — which gives the slightest indication that at any time the defendant was prejudiced by surprise; nor is there any indication of confusion as to the real issues. There were no errors of major importance and none which adversely affected the substantial rights of the defendant. The defendant stands convicted of one of the most atrocious crimes ever planned and consummated by organized crime in this state. In my opinion the decision about to be made — which casts aside the jury's finding of the defendant's guilt, upon the ground that his rights were prejudiced *Page 201 by the admission of the evidence considered above — fails to give heed to the mandate of the Legislature that "After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." (Code Crim. Proc. § 542.)
LEHMAN, Ch. J., RIPPEY and DESMOND, JJ., concur with LOUGHRAN, J.; LEWIS, J., dissents in opinion in which FINCH and CONWAY, JJ., concur.
Judgment of conviction reversed, etc. (See 287 N.Y. 754.)