Court of Appeals of New York.
May 25, 1915.

Appeal from Supreme Court, Trial Term, New York County.

Charles Becker was convicted of murder in the first degree, and he appeals from the judgment
of conviction and from a a motion denying him a new trial on ground of newly discovered


See, also, 210 N.Y. 274, 104 N.E. 396.

Under Code Cr.Proc. § 399, corroboration of accomplices held sufficient if the evidence
fairly tended to connect defendant with the crime, so that his conviction would not rest entirely
on the evidence of the accomplices.

The admission of evidence that a witness for the state discharged his counsel, who was also
counsel for the defendant on trial, and told the prosecuting attorney that he was an accomplice
to the murder, held not prejudicial to defendant, where it has conceded that he was an
Martin T. Manton, of New York City, for appellant.
Charles A. Perkins, Dist. Atty., of New York City (Robert C. Taylor, Of New York City, of
counsel,) for the People.

The principal appeal brings up for review the second trial of Charles Becker for the murder of
Herman Rosenthal. The homicide occurred shortly before 2 o'clock a.m. on the 16th day of
July, 1912, when the victim was shot to death on the sidewalk in front of the Hotel Metropole,
on West Forth-Third street near Broadway. Four men were actually concerned in the fatal
shooting, namely, Jacob Seldenhner, Frank Cirofici, Louis Rosenberg, and Harry Harewitz--
better known to their associates, respectively, as Whitey lewis, Dago Frank, Lefty Louie, and
Gyp the Blood, and frequently referred to for convenience as the gunmen. They have all been
convicted and have suffered death for their crime. People v. Seldenshner, 210 N.y. 341, 104
N.E. 420. They were hired to kill Rosenthal by three professional gamblers know as Jack
Rose, Bridgie Webber, and Harry Vallon, who turned state's evidence and testified not only
against the gunmen, but also against the defendant, Becker, under a promise of immunity from
the district attorney, given with the sanction of the court. Rose, Webber, and Vallon claim to
have acted at the instance of Becker in thus bringing about the death of Rosenthal; and the
public prosecutor appears to have considered that the community would gain more by the
conviction of a faithless public officer than it would suffer by the escape of three confessed
murders from any punishment for their participation in the crime. This was a matter for him to
determine under the responsibility of his official oath; and with the exercise of his discretion in
this respect this court has nothing to do. The first judgment of death against the defendant was
reversed because he did not have a fair trail. The judgment now under review is not assailable
on that ground. This I shall endeavor to show as I proceed to discuss the principal points
presented in behalf of the appellant.

On the first appeal the court expressly refrained from considering and passing upon the
question whether the verdict was against the weight of evidence. While the prevailing opinion
did consider at length the evidence and point out what seemed to be various weaknesses and
defects in the people's case, this was done simply for the purpose of leading up to and
emphasizing the proposition that under such circumstances the appellant was entitled to a
scrupulously fiar trial, and, it being decided that he did not have this, it became unnecessary to
consider the other question of the weight of evidence which is now presented to us.

The composition of the briefs illustrates the comparative importance which is attached to the
power of the Court of Appeals to deal with the facts in reviewing a capital case. Of the 540
pages which make up the brief for the appellant, 391 pages are devoted to a consideration of
the facts; while 111 pages are occupied by a discussion of the facts in the district attorney's
brief of 180 pages.

The facts of the crime as developed by the evidence on both sides were elaborately set forth in
the opinion of this court on the first appeal (People v. Becker, 210 N.Y. 274, 104 N.E. 396;
and also in the case of the gunmen (People v. Seldenshner, 210 N.Y. 341, 104 N.E. 420). It
is unnecessary, therefore, to restate them in detail here. It was the theory of the prosecution
that Rosenthal and the defendant had been associated in the business of gambling; that the
defendant had loaned Rosenthal money to be used for their joint benefit in the conduct of a
gambling house; that the existence of this gambling house became known to the police
authorities, so that it was necessary for the defendant, as head of the special squad engaged in
the suppression of gambling, to make a raid upon the establishment; that Rosenthal was
angered by the raid, and a state of enmity arose between them which led him to threaten
disclosures to the district attorney and the police commissioner which would have caused the
defendant to lose his position. In other words the motive ascribed to the defendant for desiring
the death of Rosenthal is the defendant's dissatisfaction at Rosenthal's conduct in regard to
their joint gambling enterprise and his apprehension that if Rosenthal lived he would reveal
misconduct on the part of the defendant which would inevitably result in his ruin. It was, and is,
contended in behalf of the defendant that sentiments of enmity against Rosenthal were
entertained by Rose, Webber, and Vallon which were sufficient to account for their action in
hiring the gunmen to kill the gambler, irrespective of any hostility to Rosenthal on the part of
Becker. The contention of the defense in this respect was clearly presented to the jury in the
charge of the learned trial judge; and the verdict shows that they must have rejected it.

[1] As has often been said, proof of the existence of a particular motive is not essential to
establish the guilt of a person accused of crime; but when the existence of a particular motive is
suggested it becomes exceedingly important to inquire as to the probability or possibility of its
having been the actuating cause of the crime. A cogent argument in favor of the defendant in
this respect merits consideration. It is said that, inasmuch as Rosenthal had just taken steps to
make public his charges against the defendant by offering them to a prominent New York
newspaper, Lieut. Becker must have known that any attack upon Rosenthal at that time would
almost certainly be attributed to his agency, and therefore that a man of his intelligence,
however inimical he might be to Rosenthal, would not have permitted a murderous assault
upon him at a juncture when the circumstances would almost unerringly point to him as the
author of the crime. The sum and substance of the argument is that it is impossible to believe
that Becker would have been so foolish as to order or induce the murder to be committed at a
time when he himself would almost certainly be the one man in the city of New York who
would be suspected of complicity therein.

[2] This was a proper matter to be considered by the jury, and we must assume that they
considered it. It cannot be laid down, as matter of law, that a jury is bound to hold that a
specified event has not occurred because its occurrence involves unwise or foolish or
blundering conduct on the part of the accused person. Indeed, the propensity of criminals to
blunder has long been recognized as a characteristic of great value in the detection of crime.
The criminal reports of England and this country are full of cases in which guilt has been
fastened upon the defendant by reason of the omission of some slight precaution or the
commission of some apparently insignificant act which would have seemed almost impossible
in the case of a person of ordinary common sense.
[3][4] Extensive as is the poser of review vested in this court on an appeal from a judgment of
death, the law does not intend to substitute the conclusions of fact which may be drawn from
the evidence by seven judges for the conclusions of fact which have been drawn from the
evidence by twelve jurors, unless we are clear that the view of the facts taken by the jury is
wrong. It is our duty to affirm, if the trial was fair and without legal error, and the verdict was
not against the weight of evidence. We are to see to it that the trial was fair, and that there was
sufficient evidence, within recognized rules of law, to support the verdict; this done, the
responsibility for the result rests with the jurors. Guiding our action by these established
principles of criminal procedure in capital cases, we do not feel justified in interfering with the
The case as presented upon the second trial differed materially from the case as presented
upon the first. The actual killing of Rosenthal by the gunmen was not controverted, nor was the
agency of Rose, Webber, and Vallon in employing them. The question was who instigated
Rose, Webber, and Vallon to cause the murder to be done. Were they moved to act by the
fraternity of New York gamblers largely represented on the Sam Paul excursion, who dreaded
the destruction of their business by Rosenthal's threatened disclosures, or did they hire the
gunmen to shoot Rosenthal at the instance of Lieut. Becker? There is nothing to indicate that
the gunmen were actuated by any personal hostility toward the man they killed. They were
simply murderers for hire. Rose,Webber, and Vallon admit their own complicity in the crime,
but claim to have been set in motion by Becker. Upon the truth or falsity of their testimony to
this effect depends the guilt or innocence of the defendant. Being clearly accomplices as matter
of law (as the court correctly charged), it was necessary, in order to warrant a conviction upon
their testimony, that it should be corroborated by other evidence tending to implicate the
defendant in the murder.
"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."
Code Crom.Proc. § 399.
Accordingly, the trial judge properly instructed the jury as follows:
"If the jury find that the testimony of Rose, Vallon, and Webber has not been sufficiently
corroborated so as to connect this defendant with the commission of the crime, or if the jury
disbelieve the testimony of Rose, Webber, and Vallon in its main essential features, they must
acquit this defendant."
[5][6] We are thus brought to a consideration of one of the most important questions
presented by the appeal: Was there sufficient corroboration to take the case to the jury? There
could be no conviction of the defendant unless the jury believed the testimony of the three
accomplices, nor unless that testimony was supported by other evidence tending to connect
Becker with the killing of Rosenthal. But the law doe snot require that the would case shall be
proved outside the testimony of the accomplices. People v. Hooghkerk, 96 N.Y. 149. If it
did, the testimony of accomplices would never avail anything except as cumulative evidence.
The "other evidence" required by the Code need only tend to connect the accused with the
commission of the offense. People v. Ryland, 97 N.Y. 126. "The law is complied with if there
is some other evidence fairly tending to connect the defendant with the commission of the
crime, so that his conviction will not rest entirely upon the evidence of the accomplice." People
v. Everhardt, 104 N.Y. 591, 594, 11 N.E. 62, 64. If the trial judge is satisfied that there is
some such corroborative evidence, and therefore submits the case to the jury, "then it is for the
jury to determine whether the corroboration is sufficient to satisfy them of the defendant's
guilt." People v. Elliott, 106 N.Y. 288, 292, 12 N.e. 602, 603. The same view was expressed
by this court in People v. Mayhew, 150 N.y. 346, 353, 44 N.E. 971, 973, where it was said
that under such circumstances the jury "are the sole judges whether the evidence relied upon to
corroborate the accomplice is sufficient." In the celebrated Patrick Case (People v. Patrick,
182 N.Y. 131, 156, 74 N.E. 843, 850) Judge John Clinton Gray discussing the credibility of
the accomplice who admitted having administered the fatal dose of chloroform, said:

"It is sufficient if he is corroborated as to some material fact or facts which go to prove the
connection of the defendant with the criminal intent and its execution. * * * The law, in its
humane policy, intends that the life or the liberty of an accused person shall nt be sworn away
by an accomplice, unless the accomplice be so corroborated as to some material fact or facts
as that a belief in his credibility becomes reasonable, and therefore safe to be entertained."

In the brief for the appellant the following sentence, from the opinion in People v. Page, 162
N.Y. 272, 274, 56 N.E. 750, is quoted in large capitals:

"The corroboration must extend to every material fact essential to constitute the crime."

The emphasis is misleading, and the rule of evidence set forth in the sentence quoted has no
application to such a case as the present. This is pointed out by Judge Martin in People v.
O'Farrell, 175 N.Y. 323, 326, 67 N.E. 588. The Page Case was an indictment for rape, and
was controlled by a statute which provided that no conviction could be had upon the testimony
of the person injured unsupported by other evidence; while the code provision operative in the
present case prohibits a conviction 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. The courts required the corroboration of complaints and accomplices in certain
classes of cases before there were any statutes on the subject, and the extent of corroboration
differed with the character of the crime. In prosecutions for rape it was early held that a
conviction could not be had upon the unsupported testimony of the alleged victims; it being
necessary in such cases to prove not only the physical act beyond a reasonable doubt, but also
that the complainant was an involuntary participant therein. This rule has been broadened by
statute so as to include abduction and other offenses affecting females, and the corroboration
which it prescribes is much stronger than that required in support of the testimony of
accomplices. In my judgment, the rule which must control one disposition of the question of
corroboration in the present case cannot be better stated than it was by Judge Martin in the
O'Farrell Case, 175 N.Y. on page 326, 67 N.E. on page 588:

"Although under those statutes the rule is different as to the amount of corroboration required,
still in either case the corroboration must be of a character and quality which tends to prove
the defendant's guilt by connecting him with the crime. If there is evidence fairly tending to
show such connection, so that the conviction will not rest entirely upon the evidence of the
accomplice, then the question whether the evidence is a sufficient corroboration to induce the
jury to find against the defendant is for it to determine; but, if there be no evidence tending to
connect the defendant with the commission of the crime, a question of law is presented, which
is reviewable by this court."
[7] Of course, these accomplices were very bad men; accomplices in murder always are; but it
is almost a truism in criminal law that if the testimony of bad men were absolutely rejected
many murderers would escape the punishment which they deserve. Our statute has
safeguarded the defendant, who is assailed by such testimony, by prohibiting a conviction upon
that alone, and by requiring that it shall be supplemented by corroborative evidence pointing to
him as the guilty party. The jury were properly warned that in weighing the words of Rose,
Vallon, and Webber the fact that these witnesses had been granted immunity, provided they
did not actually fire the fatal shots,should be taken into account, and the further fact that they
had an interest to shield themselves in the testimony they should give. After the most careful
consideration which I have been able to give the question, I cannot escape the conclusion that
there is evidence in the record other than that of the accomplices tending to connect the
defendant with the commission of the crime.

The principal sources of corroboration relied upon by the prosecution were: (1) The testimony
of the colored man James Marshall as to the presence of Rose at the so called Harlem
conference; (2) the testimony of Deputy Commissioner George A. Dougherty to the effect that
the defendant on the 18th of July, 1912, denied that he had seen or heard from Rose since the
Thursday or Friday before the homicide (which occurred on Tuesday, the 16th), when he must
have known that Rose was then in hiding in the city, and was being sought by the police for
complicity in the murder; and (3) the testimony of one Charles B. Plitt, a former friend and
intimate associate of Becker, who appears to have turned against him since his first trial, to the
effect that the defendant expressly warned him beforehand to keep away from Times square
on the night when the murder was committed.
The witness Schepps, who was sworn in behalf of the people on the first trial to furnish the
necessary corroboration, was not called upon this second trial. The prosecution now relied
chiefly upon the evidence of Marshall, Dougherty, and Plitt, two of whom had not testified in
the case before.

Accepting the testimony of Marshall as true, it shows that the defendant and Rose were
together at a specified locality in Harlem (124th street and Seventh avenue) on the night of
June 27, 1912, at a time, however, when they might naturally and properly be there--the
defendant for the purpose of supervising a raid by his squad upon a negro gambling house in
the neighborhood, and Rose on account of his intimacy with Becker and association with him
in similar enterprises. The evidence, however, concerning the Harlem conference, as a whole,
is much more convincing than it was on the first trial. The date, which was then uncertain, is
now fixed as being the 27th of June. Marshall was certainly present at the raid then made by
the defendant's squad; and his presence becomes very significant when considered in
connection with Vallon's testimony on the first trial. Vallon then said, in narrating the
circumstances of the Harlem conference:

"Lieut.Becker told us he was going to raid a crap game that night, and there was a little
colored boy on the other side of the street, and he called him over and spoke to him. We
stepped aside, Rose and I, and by the time he got finished talking to this boy Webber came

This mention of the colored boy by Vallon seemed then to be only an unimportant incident by
the Harlem conference; but in the light of subsequent developments it tends strongly to prove
that Vallon himself must have been there and therefore could have participated with the others
in the alleged murder plot. It is difficult to see how Vallon would or could have mentioned the
colored boy's presence then unless he had himself been present. The defense, by calling three
policemen who belonged to the special squad and participated in the Harlem raid, endeavored
to prove that Lieut. Becker did not meet Vallon, rose, and Webber or either of them on that
occasion; and yet the fact that Vallon knew the colored boy was there can hardly be
accounted for unless Vallon was there himself.

In addition to these considerations, it is a matter of importance that there is lacking on this
appeal the basis for the severe criticisms which on the former appeal were passed on the
people's case in respect of the alleged Harlem conference because of the failure to call the
chauffeur who was said to have conveyed some of the conspirators to it. On the first trial not
only did the people, who knew the identity of this man, fail to call him, but it was fairly inferable
that his identity had been so obscured that the defense was not afforded an opportunity to call
him as a witness. While again on the present trial the people have omitted to call him,it no
longer remained true that the defense was prevented by ignorance from placing him upon the
stand. He was known and was within the jurisdiction of the court, and could have been
summoned as a witness if desired.

The other corroborative evidence is more direct in its implications. There is nothing to impugn
the veracity of Police Commissioner Dougherty. On the second day after the murder this
officer interrogated the defendant, his subordinate, as to his knowledge of the whereabouts of
Rose, who was already suspected of some connection with the crime. Rose at this time was in
seclusion at the house of one Pollak, to which the defendant had sent his lawyer, John W.
Hart, together with a notary, to obtain an affidavit from Rose exonerating Becker from any
relations with Rosenthal in his gambling undertakings. This affidavit appears in the record, and
is verified on July 17, 1912. Notwithstanding these facts, the defendant, on the next day,
according to the testimony of Mr. Dougherty, told him that he had not had any communication
with Rose since the 11th day of July. As to this incident, the jury were instructed as follows:

"If you conclude that this defendant, upon being asked by Young or Dougherty as to his
knowledge concerning those who committed this murder, made in response to those questions
answers which he knew to be false, and which tended to show that he had no communication
with one of the murderers, then I charge you that you may take into consideration the fact that
he did make such false statements, that he did make such false explanation, in determining, in
connection with all the other evidence in the case, as to the guilt or innocence of this defendant."
The testimony of Plitt implicates the defendant stillmore directly. He was a newspaper man
who had been acquainted with Becker for about four years, and was in the habit of seeing him
frequently to obtain information about police raids. He met him on the day before the murder
and had a conversation with him, which he narrates as follows:

"Becker told me that he had received a communication over the telephone from a party named
Brown, who was able to obtain an affidavit from one Dora Gilbert, former wife of Herman
Rosenthal, which he could use to discredit Herman Rosenthal in the eyes of the public. He
said: 'I want you to get several newspaper men and a notary public to obtain this affidavit.'
Becker said: 'Just as soon as you have this affidavit signed and sworn to, leave the bunch.
Remember who you meet to-night, and where you were. You had better make a
memorandum as to your movements, so as to be able to prove an alibi; and, above all things,
keep away from Tines square to-night, and keep that under your belt.' I then asked Becker
what I wanted an alibi for; 'Do as you are told.' I then said: 'You always let me in on everything
before. Why not on this? Is it about Herman?' Becker said: 'Perhaps; never mind. Do as you
are told. Be able to prove an alibi; you will learn more to-morrow, and will then understand.' "

[8] The witness Plitt gave other testimony in which he attributed incriminating declarations to
the defendant; some of these were alleged to have been made on the train on which Becker
was taken to Sing Sing after his first conviction. The officers in charge of the prisoner on that
occasion, however, deny that he made any such statements in their presence, and say that they
were with him throughout the trip. This denial enables defendant's counsel to invoke the
maxim, "Falsus in uno, falsus in omnibus," as justly applicable to Plitt's testimony; but this
maxim is permissive only--not mandatory--and it was for the jury to say how far they would
believe him. No satisfactory explanation is given to Plitt's change of attitude toward the
defendant, from one of devoted friendship to fatal hostility; but, if he is telling the truth now, it
makes little difference what the reason is. If the defendant actually cautioned him in advance to
be away from the locality of the murder on the very night when the murder was committed, the
jury might find that fact indicated cognizance of a probability at least that something
momentous was then likely to occur.

[9] One of the assignments of error most earnestly pressed upon our attention involves a
consideration of the law relating to the admission in evidence of dying declarations. Counsel for
the defendant offered to prove that one of the gunmen (Cirofici, alias Dago Frank), just before
his execution at Sing Sing, declared that, so far as he knew, Becker had nothing to do with the
killing of Herman Rosenthal. The court sanctioned this offer of proof as a proper method of
raising the question, and excluded the evidence, to which ruling exception was duly taken. The
admission of proof of the dying declarations of victims of homicide is a well-recognized
exception to the general rule excluding hearsay evidence. Sir James Fitzjames Stephen, writing
in 1882, said be believed this exception was about 100 years old. 1 Stephen's Hist.Crim.Law
of England, 447. It has never been more accurately formulated than it is by the same learned
judge in his Digest of the Law of Evidence (article 26), where he states it thus:

"Dying Declaration as to the Cause of Death. A declaration made by the declarant as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his
death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant,
and only when the declarant is shown to the satisfaction of the judge to have bee in actual
danger of death and to have given up all hope of recovery at the time when his declaration was

Although at common law dying declarations were admissible only on trials for murder or
manslaughter, they have been made admissible by statute in new York in prosecutions for
abortion. Code Crim.Proc. § 398a. So clearly established was the restriction to cases of
homicide that a legislative enactment was deemed necessary to warrant the admission of dying
declarations in any other class of cases. People v. Davis, 56 N.Y. 95. In the case cited it was
held by this court that dying declarations were admissible in cases of homicide only, where the
death of the deceased is the subject of the charge, and the circumstances of the death are the
subject of the dying declarations.

To the same effect is the decision of the Supreme Court of the United States in Donnelly v.
United States, 228 U.S. 243, 33 Sup.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710. The
declaration must be a statement by the victim of the crime (2 Wigmore on Evidence, § 1433;
Brown v. Commonwealth, 73 Pa. 321, 13 Am. Rep. 740; State v. Bohan, 15 Kan. 407;
People v. Hall, 94 Cal. 595, 30 Pac. 7; State v. Westfall, 49 Iowa, 328); and, however
cogent may be the reasoning in favor of admitting proof of declarations by any witness about
to die and aware of his approaching dissolution, it suffices to say that up to the present time
evidence of dying declarations has never been admissible under the law of the state of New
York unless the declaration proceeded from the victim of the assault, the alleged perpetrator of
which was on trial. Such was not the case as to the alleged declaration by Dago Frank; it was
not admissible under any accepted doctrine of the law of evidence; and the learned trial judge
would have erred if he had received the proof which was the subject of the offer. In ruling as
he did, the learned trial judge said:

"I will exclude it. It seems to me the question is not open under the authorities. If it were open
there might be two sides to the question; but I think it is settled."

We are virtually asked to reopen it by counsel for the defendant, who argue that the statement
of the gunmen immediately prior to their execution was invested with all the solemnity of a
dying declaration, and hence by analogy of reasoning should be deemed admissible as such.
Speaking of Dago Frank, they say:

"In a few moments he would find himself in the realm of the unknown beyond, face to face with
his Maker, and wholly ignorant of the penalty or punishment that might be inflicted upon him
for any false statement immediately before his transition. He was in the face of a Great Fear,
and all of the secrets of Eternity were soon to be revealed to him. A sense of infinite awe and
dread must have a pervaded his whole nature."

It is generally believed that a sense of speedily impending death operates to induce one to tell
the truth; and we are asked to hold that this influence would be just as effective in the case of
any witness who is about to die as it is deemed to be in the case of the victim of a homicide;
Whether this view be correct or not, the manner in which the rule as to dying declarations has
been dealt with by the courts and the Legislature in this state indicates that it may not be
broadened except by statute. As to the argument in favor of enlarging it so as to admit
evidence of such declarations as that alleged to have been made by Dago Frank, it may be
observed that the influence of approaching death might be very different in the case of an
innocent victim of crime from what it would be in the case of a guilty murderer condemned to
die. Unless numbers of innocent men have suffered capital punishment in this country, many
criminals have gone to the gallows with a lie upon their lips. The existing rule with its strict
limitations, has been introduced into India, where it appears to have worked badly, according
to Mr. Justice Stephen, who says:

"I have heard that in the Punjab the effect of it is that a person mortally wounded frequently
makes a statement bringing all his hereditary enemies on to the scene at the time of his
receiving his wound, thus using his last opportunity to do them an injury. A remark made on
the policy of the rule by a native of Madras shows how differently such matters are viewed in
different parts of the world. 'Such evidence,' he said, 'ought never to be admitted in any case.
What motive for telling the truth can any man possibly have when he is at the point of death.' "
1 Stephen's Hist.Crim.Law of England, 448, 449.

Mention is made of these divergent views merely to show that the admission of dying
declarations even to the extent to which they are now received is not universally approved; and
the courts should be cautious lest they enlarge the rule by judicial construction.

[10] In connection with the point which has just been discussed, counsel for the appellant insist
that reversible error was committed in excluding the jury from the courtroom during the
argument as to the admissibility of Dago Frank's declaration; their exclusion being a violation of
the right to a trial by jury guaranteed by the Constitution of the State. Const. art. 1, § 2. We
cannot accede to this view. The argument related solely to a question of law, determinable by
the trial judge, and with which the jury had no concern whatever. Every experienced trial judge
knows that counsel often inadvertently or purposely introduce into such arguments matters of
fact which may affect the jurors when they come to consult upon their verdict. It certainly is not
essential, and often it is not desirable, that they should hear arguments which may seem only to
mislead them. While it is never error to permit the jury to be present during the discussion of
questions of law by counsel (People v. Smith, 104 N.Y. 491, 10 N.E. 873, 58 Am.Rep.
537), it was not error to exclude the jury under the circumstances of the present case.
Reference is made to the opinion in People v. Randazzio, 194 N.Y. 147, 87 N.E. 112, as
indicating our disapproval of such exclusion, even by consent; but there evidence which the
jury ought to have heard was taken in their absence. Nothing of the sort happened here; for
the outcome of the argument was a decision not to receive the proffered proof.

[11] Of the questions of law in the case, next in importance is the alleged error in the admission
of evidence relating to the acts and statements, in the defendant's absence, of persons who are
said to have conspired with him to commit the murder.

Shapiro, the chauffeur who drove the car which took the gunmen to the scene of the murder,
was allowed to testify, over objection and exception, that as they approached the Hotel
Metropole he heard one of the gunmen say:

"Leave him turn around; that Becker has the cops fixed up; everything is all right."

This evidence was properly received under the rule explicitly laid down by this court in People
v. McKane, 143 N.y. 455, 470, 38 N.E. 950, 954, where Judge O'Brien said:

"When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the
acts and declarations of the conspirators in furtherance of its purpose and object are
competent, and in a case like this it is not necessary, in order to mae such proof competent,
that the conspiracy should be charged in the indictment."

[12][13] All the proof relied upon to establish the alleged conspiracy was not put in until after
Shapiro thus testified; but the order in which the evidence might be introduced was a matter
within the discretion of the trial judge. When he came to charge the jury in respect to this
statement by Shapiro he said:

"It became necessary upon the trial that the court should receive that testimony in evidence on
the ground that it purported to be a declaration of one of the conspirators who were engaged
in the commission of the crime of murdering Herman Rosenthal. But that statement of Shapiro's
is not evidence of the truth of the statement contained in it. That is, it is not evidence-- to use
his language--'that Becker has the cops fixed up,' nor is it evidence that 'everything is all right.'
The statement of Shapiro's that one of the gunmen used this language is only to be considered
by the jury in the event of your concluding that this defendant at the bar did conspire with
Rose, Webber, and Vallon in order to bring about the assassination of Rosenthal."

Other testimony as to the acts and statements of the accomplices in furtherance of the alleged
conspiracy was properly received on the same ground. See opinion of Chase, J., in
People v.
r, 210 N.y. 360, 104 N.E. 420.

[14] Particularly strenuous complaint is made, however, of the reception of the testimony of
Mrs. Lillian Rosenberg, the widow of one of the gunmen (Lefty Louie), to the effect that on the
evening following the murder her husband brought a package of money to her apartment,
where he met the other gunmen, and after a conference with them in an adjoining room the
party separated. This evidence seems clearly to have been relevant. Rose had previously
testified that earlier on the same day Webber, at Becker's express request, had given him
$1,000 to pay the gunmen with,and he had handed it over to Lefty Louis. It certainly would
not be a violent inference from Mrs. Rosenberg's testimony that he divided this blood money
with his associates on the occasion mentioned. Where a conspiracy to kill involves the
employment of hireling murderers, the proof is not necessarily so limited as to exclude all
evidence of occurrences after the killing. The fulfillment of the agreement by the subsequent
payment and receipt of the sum agreed upon is a relevant fact, and therefore properly
provable, just as it would be relevant by way of defense to show that no money had ever been
paid to the actual slayers at the instance of the person accused of having procured their
The general and most important features of the case have thus far been discussed. In order,
however, to make sure that nothing has been overlooked which the defendant is entitled to
have considered, I will now review the specific points for the appellant as they are stated in the
brief of his counsel, indicating what seems to me to be the appropriate answer in each instance.
This course may involve some repetition, but it is necessary in passing upon a record of this
magnitude in a case argued at such great length, and requiring a careful study of such
voluminous briefs.
(I) "Defendant's guilt was not established beyond a reasonable doubt, but the verdict is against
the overwhelming weight of the evidence, and is thus contrary to law." This point has been
disposed of in the foregoing general discussion of the case.

(II) "The prosecution having failed to establish defendant's guilt beyond a reasonable doubt,
the verdict of guilty, being hopelessly against the weight of the evidence, is contrary to law and
cannot stand." This point is disposed of by the same considerations which apply to point I. In
addition, it may be observed, so far as the weight of evidence is concerned, that a number of
incidents tending to incriminate the defendant testified to by the witnesses for the people
remained without contradiction when the case went to the jury. In his closing address the
learned counsel for the defendant said he did not believe that there was any necessity for him
to deny the words of Rose and Webber and Vallon and Plitt; thus conceding that the
statements of those witnesses were uncontradicted, and relying upon the inherent improbability
of their testimony to induce the jury to reject it.

(III) "The conviction was had upon testimony of accomplices without corroboration by any
other evidence tending to connect the defendant with the commission of the crime, and is thus
contrary to law." This point also has already been fully covered in the previous part of this
opinion. The whole case turns upon it, and the reasons have already been stated which compel
the conclusion that the corroboration was sufficient to take the case to the jury.

[15] (IV) "The staging of this second trial in an atmosphere designed to be hostile to defendant
was highly prejudicial to his rights, deprived him of a fair trial, and was a flagrant violation of
the directions of this court that the defendant should have a scrupulously fair and impartial
trial." This curiously worded point is based upon a number of occurrences just before the
beginning of the trial ant at its outset. Articles had been published in several New York
newspapers accusing the brother of the defendant of having endeavored to induce witnesses to
swear falsely upon the trial of the gunmen. It is asserted in the brief for the appellant that
certain affidavits in the record "make it a matter of very strong inference that the highly
objectionable newspaper accounts emanated from the office of the district attorney." To
counteract their effect, Mr. W. Bourke Cockran, who then appeared as one of the counsel for
the defendant, made a motion that the district attorney be adjudged guilty of contempt of court,
and asked for a postponement in order that proper papers might be submitted on an
application for a change of venue. Complaint is made because these motions were denied.
Furthermore, after the trial had been in progress for three days, and before the jury had been
fully selected, there was published in the New York Commercial Advertiser what purported to
be a verbatim report of the district attorney's opening address. Proceedings were taken before
Mr. justice Seabury against the newspaper corporation, which was duly fined for contempt of
court in making this false and premature publication. These contempt proceedings were
conducted in the chambers of the justice, and, strictly speaking, constituted no part of the trial
under review. How any of the matters mentioned could have affected the appellant injuriously
or how they constituted any "staging" of the trial prejudicial to his interests it is impossible for
me to see.Every juror who sat in the case was pronounced acceptable to the defendant by his
counsel, and this could hardly have occurred if there had been any impression in his mind that
the jurymen had been prejudicially affected by the objectionable publications or the
proceedings to punish the offending newspaper. The case would be quite different if the record
disclosed any substantial foundation for the suggestion that the district attorney or his agents
were responsible in any way for any publications by which it was sought to influence the
outcome of the trial. Such misconduct would not only merit the severest reprobation, but
would be a good ground for summary removal from office.

(V) "The admission of the alleged statement of Dago Frank in the hearing of Shapiro just
before the murder, in defendant's absence, was highly prejudicial, and constitutes reversible
error." This point has been already discussed, and requires no further consideration.

[16][17] (VI) "The admission of the alleged conversations between Rose and Rosenthal in the
absence of defendant was reversible error." Proof of these conversations was admissible,
because there was testimony tending to show that they were subsequently repeated to the
defendant, and because there was evidence from which it might be inferred that Rose had
previously been authorized by the defendant to talk with Rosenthal in regard to the
subject-matter. I tis argued that the only proof that Rose was acting as defendant's agent and
by his authority in these conversations comes from Rose himself, "and it is a long-established,
well-recognized, and a salutary rule of law that agency cannot be proven by the declarations of
the agent." It is true, of course, that agency cannot be established by proof of the unsworn
declarations of an alleged agent; but this does not mean that the sworn testimony of a person
claiming to be an agent and tending to prove his authority to act as such is not competent proof
of agency. The weight to be given such testimony is, of course, a matter for the jury.

(VII) "The admission of alleged conversations between Rose and Zelig in the absence of the
defendant was reversible error." The repetition of these conversations to the defendant
rendered them admissible.

[18] (VIII) "The admission of alleged conversations between Rose and the gunmen in the
absence of defendant was reversible error." Proof of these conversations was entirely proper
in view of the evidence tending to show that Rose, in his communications with the gunmen, was
acting under general authority from the defendant to bring about the death of Rosenthal.

[19] (IX) "The rulings of the court in the cross-examination of Rose, in declining to strike out
answers not responsive to the questions and in excluding evidence which would establish that
Rose changed his testimony on this trial about alleged conversations over the telephone in
order to overcome the criticisms of this court on the former appeal, were erroneous and highly
prejudicial to defendant." The rulings of the learned trial judge on the cross-examination of
Rose appear to me to have been extremely fair throughout. If there was an occasional slip in
ruling upon questions as to the previous testimony of this witness, any possible error in this
respect (and I do not say there was any) was corrected and obviated by the reception in
evidence of a transcript of all the testimony given by Rose upon the first trial. This afforded
counsel the amplest opportunity to exhibit to the jury any contradictions which appeared
between what the witness had previously said and what he said now; and counsel availed
himself of this opportunity in the fullest manner by pointing out more than fifty alleged

[20] (X) "The admission of self-serving declarations of Webber to the district attorney in
defendant's absence and after the murder was reversible error." This point, so far as I can
appreciate its scope and bearing, relates to the admission of the statement by Webber to the
effect that on the day when he changed his counsel he went to the district attorney and told him
that he was an accomplice in this murder. He also testified that the counsel whom he
discharged was not one of the counsel for the defendant. I am unable to see how these
statements could have been in any way harmful to the defendant, inasmuch as it was conceded
throughout the trial, and is not disputed by anybody, that Webber was a participant in the
murder. The fact that his former counsel was one of the lawyers representing the defendant on
the present trial was immaterial, it is true, but it was expressly conceded to be the fact by Mr.

(XI) "The admission of the testimony of Lefty Louie's widow of an alleged conversation which
she claims to have overheard between Rose and Lefty Louie in defendant's absence was highly
prejudicial and constitutes reversible error." The admissibility of this line of testimony has
heretofore been considered.

(XII) "The admission of the testimony of Lefty Louie's widow of alleged occurrences in her
Seventh avenue apartment on the evening after the murder, in defendant's absence, respecting
a division of money among the gunmen, was highly prejudicial, and constitutes reversible
error." This point is also considered elsewhere.

[21] (XIII) "The admission of anonymous complaints received at police headquarters, charging
defendant with protecting Rosenthal's gambling house and receiving money for such protection,
was highly prejudicial, and constitutes reversible error." These anonymous letters were
addressed to the police commissioner. They appear to have been referred to the defendant,
who subsequently submitted to the commissioner a signed memorandum in reference thereto.
The trial judge took pains to instruct the jury that the anonymous letters were not evidence of
the facts stated therein, but that they were admitted for the purpose of rendering the
defendant's memoranda intelligible. This "attempted justification" of the ruling is harshly
characterized by defendant's counsel as "most puerile," although, in fact, it protected the
defendant against a possible misapprehension, and was in reality of benefit to him. The
anonymous letters were properly received as explanatory of the defendant's action and is part
of the history of the case.

[22] (XIV) "The admission of conversations between the police commissioner and the captain
of the precinct in defendant's absence, respecting the stationing and continuance of a patrolman
in Rosenthal's place after the raid, was reversible error." This evidence merely went to show
that after the raid upon Rosenthal's gambling establishment a patrolman was kept stationed
there, by direction of the police commissioner, until after the murder. The fact does not seem
to have ben of much importance, and I am unable to perceive how proof of it can have been
harmful to the defendant.

(XV) "The exclusion of the dying statement of Dago Frank to Father Cashin, Thomas F.
McInerney, and his mother and sister, all present with him, immediately before his
electrocution, that, so far as he knew, defendant had nothing to do with the murder, was highly
prejudicial and constitutes reversible error." This proposition has already been quite fully

(XVI) "The exclusion of the jury from the courtroom, over defendant's objection, during
defendant's offer of proof of the Dago Frank confession and the discussion of its admissibility,
was reversible error." I have previously endeavored to show that the action of the court in this
respect was praiseworthy on the part of the trial judge rather than in any manner prejudicial to
the defendant.

[23] (XVII) "The exclusion of testimony from the auditor of disbursements of the district
attorney's office which would have established that Moe Cohen, a material witness whom the
people failed to call, had been drawing a salary from the district attorney's office and was
under the district attorney's control, was highly prejudicial to defendant, and constituted
reversible error. The exclusion of similar testimony respecting Schepps was also erroneous."
Moe Cohen is a chauffeur, who on the motion for a new trial, reviewed at the same time as the
first judgment, made an affidavit denying that he drove a car to the so-called Harlem
conference. He was within the jurisdiction immediately prior to the last trial, and might have
been called as a witness by either party. Enough was proved to enable the jury to infer that the
district attorney refrained from calling him because his testimony would have been of no benefit
to the prosecution. The further fact that he had drawn money from the district attorney's office
was irrelevant, inasmuch as he did not take the stand. The same is true as to Schepps.

[24] (XVIII) "The court erred in refusing to permit defendant's counsel to frame questions to
people's witness Rose in the identical form which was allowed to the district attorney in his
cross-examination of defendant's witnesses, thus depriving defendant of a scrupulously fair and
impartial trial." Under this point some extracts from the record are assembled to show that the
district attorney was allowed greater latitude in cross-examination than was accorded to
defendant's counsel. These instances, however, are quite exceptional. As has already been
intimated, after reading and re-reading every word of the proceedings on this long trial, the
resulting impression is entirely favorable to the fairness and impartiality of the trial judge.

(XIX) "The flagrant and repeated injection of incompetent, extraneous matters, unsupported
by any proof, into the case, by the district attorney, in his opening and summing up, and
throughout the course of the trial, were highly prejudicial to defendant, and deprived him of a
scrupulously fair and impartial trial." It would unduly lengthen the opinion to discuss in detail the
specifications under this point. It must suffice to say that wherever there was any serious
departure from the record it was usually promptly checked by the court; and I find no reason
to believe that the public prosecutor was permitted to say or do anything which could have had
the effect of misleading the jury.

[25] (XX) "The charge was unfair, erroneous, and highly prejudicial in many respects."
Counsel denounces the charge a "an animated argument in behalf of the people." Its perusal
produced no such effect upon any mind. When I finished reading it I was unable to say
whether the learned judge thought the defendant was guilty or not. This ought to be a
trustworthy test as to the fairness with which the case was presented to the jury. I can find no
error of law either in the body of the charge itself or in the rulings upon the numerous requests.

[26] Upon the oral argument special complaint was made of this passage:

"Unless you do your duty, all the labor that has been expended upon this case will have been
lost. The district attorney, the counsel for the defense, the court, have all tried to perform their
duty to the best of their ability. Let it not be said in this case that the jury neglected to perform
the duty which the law casts upon them. I hope you will endeavor to arrive at a conclusion in
this case, and I trust that the conclusion at which you arrive may be based solely upon the
evidence, and may be in accord with your conscience and with the law."

Here we have merely an earnest admonition to come to an agreement. Such urgency is neither
improper nor unusual.

The assertion that "the facts and law were arrayed and marshaled in a way highly inimical to
defendant's rights and wholly devoid of any serious and anxious desire for their preservation"
seems to me to be wholly unwarranted and underserved; on the contrary, the most sedulous
care to preserve the rights of the defendant was manifested not only in the charge, but
throughout the whole trial.

We desire that the views which lead us to affirm this judgment shall be made unmistakably
clear. Doubtless, a very strong argument can be made in favor of the defendant, based upon
the inducement of the avowed accomplices to swear falsely, their opportunity to fabricate
evidence,and the lack of conclusiveness in the corroboration. All this, however, was a question
for the jury, with whose determination we are not justified in interfering,unless we can say that
it was plainly wrong--which, as already stated, we cannot say. Therefore, unless the rules of
law which have heretofore governed the disposition of criminal appeals are to be changed
merely because there might have been a refusal to convict on this evidence, we think: (1) That
they required the submission of the issues of fact to the jury; (2) that the case was fairly and
impartially tried; (3) that no errors of law were committed prejudicial to the defendant; and (4)
that the verdict cannot be deemed to be against the weight of evidence or against law, within
the meaning of section 528 of the Code of Criminal Procedure. It is not our duty to try the
case over again upon the printed record. We have not seen the witnesses. We are deprived of
the aid furnished by their appearance,demeanor, facial expression,and manner of testifying.
These advantages the jury enjoyed; and, there being sufficient evidence in quantity and quality
to take the case to the jury, their verdict, in the absence of any of the statutory grounds for
reversal, is conclusive even upon the Court of Appeals.

[27] As to the appeal from the order denying a motion for a new trial on the ground of newly
discovered evidence, little need be said. The application was really an attempt to discredit the
testimony of the colored vaudeville actor, Marshall, to the effect that he saw a man whom he
subsequently identified as Rose at the Harlem raid. Being intoxicated at Philadelphia, Marshall,
under the influence of some newsgatherers, signed and verified a statement somewhat
inconsistent with is testimony upon the trial. This statement he now repudiates, as being
different from what he understood it to be; and at the close of his affidavit in opposition to the
motion he says:
"I testified to the truth in everything that I said upon the Becker trial, and I do not want to
change or take back anything that I have said; and, if I am called as a witness again, I will tell
the same things because they are true."

The court may not grant a new trial under the provisions of the Code of Criminal Procedure
relating to newly discovered evidence (section 465, subd. 7) where the freshly proffered proof
goes simply to impeach or discredit a witness sworn upon the first trial. People v. Priori, 164
N.y., 459, 58 N.E. 668; People v. Eng Hing and Lee Dock, 212 N.Y. 373, 106 N.E. 96.
This rule not only justified, but required the denial of the motion.

The judgment of conviction should be affirmed.

Judgement of conviction affirmed.


HOGAN, J., dissents.
N.Y. 1915.
109 N.E. 127, 215 N.Y. 126
The Becker-Rosenthal Murder Case
People v. Becker 215 NY 126
May 25, 1915
Charles Becker
Herman Rosenthal